The point of departure of this chapter is the EU’s close cooperation with third countries, especially in the neighbourhood, which has erased a number of perceived boundaries between the EU and non-member states. Whereas within the EU, family members are largely considered to be the natural beneficiaries of the free movement of persons with ensuing residence and social rights, it is less clear whether the same undisputed status of a family also applies beyond the EU’s borders. The EU has concluded a number of association agreements with countries in its neighbourhood which comprise, to varying degrees, access to the EU’s internal market including the free movement of workers. The Polydor-doctrine of the Court of Justice of the EU has, however, established that similarly worded provisions in the EU Treaties and cooperation agreements concluded with third countries do not guarantee identical interpretation. With a focus on Turkey, the European Economic Area and the United Kingdom, the chapter analyses the conception of family and related rights in the EU’s cooperation instruments, with an aim to establish the extent to which non-EU families can be considered ‘EU families’.

This chapter begins by explaining that family rights have been protected under EU law long before the adoption of the Charter. In particular, the chapter argues that the Court of Justice of the EU consolidated the protection of family life through a free movement rationale, guided by the need to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty. The chapter then focuses on investigating how family rights are protected under EU law today. The authors first analyse the horizontal provisions of the EU Charter of Fundamental Rights and how they can affect both the extent of protection and the substance of family rights. Subsequently, they look at how family rights have appeared in the Court’s case law. Finally, the authors consider the interaction of family rights with the EU citizenship provisions. Exploring the connection between fundamental rights, free movement and EU citizenship, the chapter concludes by signalling the timid use of Charter provisions to advance the protection of family life.

This chapter considers the enforcement of the rights of free movement and residence provided by the Citizens’ Rights Directive (Directive 2004/38) by members of the ‘family’ of the EU citizen – both ‘core’ members and ‘other’ family members according to the distinction created by the Directive under Articles 2(2) and 3(2), respectively – and, in particular, how the Court has extended the application of the principle of effective judicial protection to these situations. This principle has been present in EU law since the Court’s early case law and is now entrenched in Article 47 of the Charter. Yet, in most areas of EU law, it has been interpreted in relation to the enforcement of substantive EU rights by the primary right holders - EU citizens. Directive 2004/38 adds a different dimension by regulating the conditions that apply to the substantive rights that family members derive from EU citizens. In a collection that seeks to explore the role of the ‘family’ in EU Law, this chapter examines how the guarantee of effective legal protection has taken hold in the interpretation of the provisions of the Directive as applied to family members.

This chapter offers an elaborate analysis of three recent cases by the Court of Justice of the EU in the context of EU free movement law. The cases deal with the questions of whether and to what extent the EU Member States are obliged to accept a family status created abroad even when it is incompatible with their own family law (such as same-sex marriage and same-sex parenthood) or is a status totally unknown in their legal system (such as the Islamic kafala). The chapter argues that the main approach chosen by the Court regarding same-sex marriage and same-sex parenthood created abroad, obliging the Member States to recognise them for the purpose of free movement only, may give rise to practical problems.

This chapter explores the questions of what is a ‘family’ in EU law and whether EU policies sufficiently address family diversity and its consequences. The chapter departs from the premise that the prevalence of the nuclear family model has traditionally meant that the only valid form of family in EU law was one consisting of an adult man and an adult woman who live together in a single-state context and produce their own biological children. This model is, also, based on the sexual division of labour: the man is the main breadwinner, whilst the woman is the homemaker. Nonetheless, in recent years there is growing evidence of diversity in family forms. Moreover, there is an increasing departure from the traditional sexual division of labour. Although many EU Member States are already acknowledging this changing landscape of family life in their law and policy, the important question is whether the EU has been influenced by this: does EU law now sufficiently address family diversity and its consequences? In this chapter, this main question is analysed by examining the concept of ‘family’ employed across a spectrum of fields of substantive EU law.

The notion of identity plays a central role in contemporary culture, both as the core of individualism and as the proclaimed principle of nationalist populist movements – and thus also of Brexit ideology. To have a national identity implies being different from other persons, groups, nations and, in Brexitspeak, the EU. This means that Brexitism is not just a British phenomenon, but part of the wave of national populism that has swept across Europe and the Americas. This chapter includes a survey of European identitarian movements and of the far-right writers whose ideas were in tune with them. It was immigrants that were made into a threatening ‘other’ in the pro-Brexit campaigns, and the EU was blamed for increased immigration. While other factors, such as economic deprivations, levels of immigration in particular locations are part of the story, it can be argued, as this book does, that it was demagoguery targeting immigrants – loudly amplified by the popular press – that sufficiently persuaded voters to vote Leave.

The 1980s and 1990s saw a phase of increasing intergovernmental cooperation between European countries, culminating in Schengen and EU cooperation on immigration. This sharply exposed the divergence of migration control across European countries, triggering both ‘learning effects’ as countries adapted domestic legislation on asylum and borders, and ‘compensatory effects’ to mitigate the loss of internal Schengen border controls. Yet rather than leading to convergence, national systems of internal migration control remained surprisingly enduring. The chapter shows how the persistence of these divergences made arrangements on Schengen and free movement vulnerable to political shocks such as the 2015 refugee crisis and Brexit.

In this introductory chapter to Part II, we will examine the key specifics of the EU legal order and investment protection mechanisms under EU law, with a view to expose systemic similarities and differences between the EU legal order and international investment law (IIL). First, we will explain the basic features of the EU legal order. Second, we will expose the modus operandi of the EU judicial system and the Court of Justice of the European Union (CJEU) as its integral part. Finally, we will explain the scope of investment issues in the EU legal order to understand the reasons which render IIL more attractive to intra-EU investors than EU law. This chapter thus provides the context to the discussion on intra-EU dispute settlement in the next chapter. The divergent approaches to intra-EU ISDS between investment tribunals and the CJEU epitomise the fundamental differences of the two legal orders discussed in this chapter. The tensions between these two legal orders can only be understood in light of the constitutionalisation of the EU legal order, the process in which the CJEU plays the key role.

The task of the provisions in EU law providing free movement to workers is to tackle national rules that hinder movement. Rules obstructing entry and settlement of migrant workers and their families have to be removed or disapplied. As seen from the opening extract, the European Commission study found no evidence of benefit tourism. This chapter explores three specific themes in relation to the full exercise of free movement of EU workers. First, it will explore the definition of a worker – who gets to enjoy the privilege of an international career in the EU? Is the movement from one state to another an EU norm as it is in the United States? Second, what is the level of transnational solidarity for the economically active, and how does national action help or hinder this? Finally, what situations do not attract the protection of Article 45 TFEU – when can member states undermine the creation of an internal labour market? However, before looking at these themes in detail, the Treaty provision and related secondary law providing rights to the employed will be fully set out.

The creation of an internal market that transcends all Member States has without doubt been the EU’s priority in the last sixty years. Conceptualising Europe as a market, however, requires a careful appreciation of how its economic objectives and its political objectives intersect. This chapter will focus on exactly this. We analyse what the different available methods of market integration, and their subsequent implications, tell us about the nature of the EU’s market. Which institutions have power, and why? What is the balance between economic interests and other values, and is that balance appropriate? In this chapter, we analyse the many parts to the puzzle that is the internal market. We will then focus on the two main regulatory techniques of the internal market: positive integration, through which the EU re-regulates the European market by the creation of new legislation and negative integration, which takes place where national rules governing the market are declared inapplicable as they impede the functioning of the internal market. Each of these regulatory techniques, as we will see, comes with its own assumptions, problems and implications.