March 07
2021

Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States is a key EU law instrument framing the mobility of natural persons within the European space. This Directive is a codification of a dense body of pre-existing case law. In the 15 years that it has been in force, it has generated important and numerous judgments from the Court of Justice of the European Union as well. Both the Directive and the case law reveal a tension between the individual freedoms of EU citizens on the one hand, and the interests of Member States on the other hand – and striking a balance between those two imperatives constitutes a major concern for the EU’s legislators and judges. Professor Iliopoulou-Penot’s project of providing a detailed commentary of the Directive therefore contained the exciting promise of fleshing out the logics underpinning the provisions of the Directive and guiding the case law built on this instrument. The resulting book, a collection of excellent contributions, undoubtedly rises up to the challenge.

The presentation of the book makes it not only reader-friendly but also a valuable tool for further research on topics related to the Directive. Each article of the Directive is reproduced at the beginning of a chapter and it is followed by a bibliography of works (in French and in English) relevant to the chapter topic. Each chapter then provides elements of contextual and historical background as well as an analysis incorporating solutions and considerations drawn from the case law pre- and post- Directive 2004/38. This approach article by article allows the book to combine several advantages.

The book overall provides us with food for thought on the broad considerations and overarching principles that are laid down in the first provisions of the Directive. In particular, the first chapter written by L. Azoulai on Article 1 – defining the purpose of the Directive – effectively serves as a theoretical and conceptual introduction to the book. The book also helps the reader understand the meaning and implications of the more technical provisions of the Directive. The various contributions are connected by relevant cross-referencing between chapters and authors, ensuring the consistency of the collection.

Another advantage of the ‘article by article’ approach is that the book sheds light on important provisions which might otherwise be overlooked. Such is the case of Article 6 on the right of an EU citizen to stay on the territory of a Member State for up to three months, a provision which A. Bouveresse characterises as ‘revolutionary’ – and this she demonstrates efficiently by showing how it affects the Member States’ margin of discretion. Likewise, Article 35 on the abuse of rights is the starting point of V. Réveillère’s fascinating insights on this concept and its limits under EU law.

Consequently, the book should prove useful not only to researchers of the rights of EU citizens, and to students who are interested in understanding the complex and important legal instrument that is Directive 2004/38; it can also be a precious tool for practitioners wishing to make sense of and/or to rely on specific provisions of this instrument.

 

Catherine Warin is a lawyer at the Luxembourg Bar. 

 

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