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EU Citizenship before the CJEU: On the importance of the application of the proportionality principle

Courts use the proportionality principle to ensure the legitimacy of their decisions. According to Harbo (2010), the CJEU is interpreting the principle in different ways, determined by the different areas of law in which it is applied and the substance of the conflicting interest at stake. Starting from this premise, the first aim of this paper is to throw light on the rationale of the CJEU when applying the principle in a concrete ‘area of law’: citizenship. In order to do so, this work compares recent cases that share similar conflicting interests: cases where Member States’ derogation from Art. 21 TFEU is related to public policy issues are particularly sensitive due to their constitutional identity concerns. The approach for the comparison in this paper consists in finding and measuring ‘pathologies’ (a concept introduced by Endicott, 2012), in the application of the principle by the CJEU. Through this approach, I will evaluate, as a second aim, the legitimacy of the final result achieved by the Court when applying the principle.

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