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The 'Principled' Nature of Union Citizenship Revised: 'Functional' and 'Constitutive' General Principles in the Definition of Union Citizens' Right to Social Equality

Paivi Neuvonen

It has recently been argued by several authors that the material limits of Union citizens' fundamental right to equality and non-discrimination have become increasingly contingent on proportionality analysis. In the case law of the Court of Justice of the EU this has been illustrated by using the concepts of a 'real link' and a 'certain degree of integration into the society of the host Member State' to define when economically inactive migrant Union citizens can have access to noncontributory social benefits. My question in this paper is whether the general principle of proportionality alone is enough to define the material limits of Union citizens' right to equality in the combined application of their right to non-discrimination on grounds of nationality (Article 18 TFEU) and their right to free-movement and residence (Article 21 TFEU). I will discuss this question by distinguishing between (1) formal and substantive and (2) functional and constitutive general principles of Union law. I will argue that the principle of proportionality stricto sensu, i.e. balancing, is in itself an 'Empty Ideal' and that guidance for the interpretation of Union citizens' rights must be sought from the constitutive principles of Union law, such as the general principles of equality and non-discrimination. Finally, this paper makes a suggestion for a normative hierarchy of general/constitutional principles of Union law by examining the objectives of integration in the light of the recent constitutional changes of Union law, such as the incorporation of the EU Charter into primary law and the forth-coming accession of the Union to the ECHR.

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