Judicial Europeanisation Through Deconstitutionalisation: The Case of the Analogous Application of the Citizenship Directive

The Court of Justice of the European Union (the Court) is often hailed as a pioneer in integration through law. Existing scholarship on the Court’s judicial power overwhelmingly focuses on constitu-tionalisation and the horizontal policy dimension. As a result, the judicial techniques behind the Court’s policy-making and the ensuing implications for domestic policies remain largely understudied. The re-cent deconstitutionalisation of EU law begs the question as to whether the Court can steer national policies through its case-law without constitutionalising policy outcomes. The Article responds to this gap, by empirically investigating the legal techniques underpinning the Court’s policy-making in a de-constitutionalised manner and the ensuing implications for Member States’ policies. The analysis exam-ines the legal reasoning in all cases where the Court applies the provisions of Directive 2004/38 by anal-ogy, as an example of the deconstitutionalisation process, and traces the responses of all Member States to the Court’s jurisprudence. The findings illustrate that the creation of rights through the analo-gous application of Directive 2004/38 enables the Court to diplomatically balance competing interests and is successful in generating judicial Europeanisation in the domain of migration.