Supranational courts in Europe : a moderately communitarian turn in the case law on immigration and citizenship

Abstract

Most interdisciplinary analyses intuitively depict the judiciary as an actor promoting post- or transnational conceptions of membership and equality in contemporary debates about citizenship and immigration. A qualitative survey of prominent judgments of two powerful supranational tribunals on five central themes identifies an intriguing twist in the case law. Over the past decade, the Court of Justice of the European Union in Luxembourg and the European Court of Human Rights in Strasbourg have frequently emphasised social affiliation with the host society, thereby cautiously embracing moderately communitarian narratives of membership, which tempered the traditional emphasis of both courts on equal treatment and residence security across borders. Institutionally, the outcome may be rationalised by a threefold limitation of the judicial function, which cannot bring about social change on its own, interacts with political actors and acknowledges the changing contours of the legal material.