February 28

L’individu, sujet du droit de l’Union européenne

Julie Rondu

review by

Anastasia Iliopoulou-Penot

Conducted under the supervision of Francesco Martucci and Dominique Ritleng, the PhD thesis of Julie Rondu forms part of a constantly growing legal literature on an essential concept of EU law, policies and discourse: the individual. It purports to shed light on the place and role of the individual in European integration.

Following the French academic tradition, the book is divided into two parts which follow a short introduction defining the central notions of the study (individual, subject of law) and outlining the main ideas that will then be further discussed. The introduction brings on stage the idea of functional subjectification, which constitutes the heart of the demonstration. This is described as the process of granting rights through which the individual, initially an agent of the internal market and a means at the service of integration, progressively becomes a subject of EU law and an end in itself. This process is long (it starts as early as 1963, with the seminal judgment of the Court of Justice in Van Gend en Loos) and constitutes a non-linear movement; major breakthroughs are followed by non-negligible setbacks, which then make way for new substantial advances.

The first part of the book describes the mechanisms and implications of the process of the functional subjectification. Concerning the former, the emphasis is placed on the elaboration, in the case law and academic writings, of the doctrine of direct effect, which vests the individual with the capacity to enjoy rights. As for the latter, Julie Rondu examines the effects for the European legal order (especially the phenomenon described by the French neologism fondamentalisation) and the transformation of the relationship between the individual and the State but also of the relationship among individuals.

The second part of the book explores the different degrees of functional subjectification through the figures of the ‘integrated individual’ and of the ‘outsider’. The former describes both the Union citizen, protected by his/her fundamental status, and the assimilated third country national, who falls under the scope of EU legislation on immigration. Paying special attention to the status of workers and students, Julie Rondu shows how legal categories are defined and constructed following the objectives assigned to European integration. The figure of the ‘outsider’ then refers to two situations: on the one hand, the third country national excluded from the territory of the EU; on the other hand, the individual, Union citizen or third country national, whose situation has no link to EU law and who is therefore unable to invoke its protection.

Overall the analysis focuses on the Court’s case law and on the issue of granting positive rights. This is due to the fact, highlighted by the author, that the emergence of the individual in the European legal order has its origins in the rights-based interpretation of the Treaties by the Court. Even though the contribution made by EU legislation is not ignored (see, for example, the developments on the criterion of individual will and choice in international private law instruments of the EU, p. 313), the book could have benefitted from a more thorough analysis of the European legislature’s input on the process of functional subjectification and its interaction with the judiciary. The book is also more about the conferral of rights than the creation of obligations for the individual, even though a subject of law is not only vested with rights but also charged with obligations.

Having said that, I believe there are several very good reasons why one should read the book.

First of all, the book explores a major topic of European constitutionalism: the ways in which the individual is endowed with legal significance and protection in the EU. What is particularly attractive in the analysis is that it brings together developments occurring in three areas of EU law: first, Union citizenship, historically and conceptually attached to the internal market and free movement; second, the protection of human rights, especially after the recognition of the legal force of the Charter of Fundamental Rights by the Lisbon Treaty; third, European immigration policy, an essential component of the area of freedom, security and justice. The developments in these three fields are often examined in separate analyses. The idea of functional subjectification reveals the links existing among these developments and provides a useful bridge across the areas of citizenship, fundamental rights and immigration.

Then, the book highlights three essential features of EU law. Firstly, EU law takes into account the concrete situations and specific interests of individuals, considered either in an isolated capacity or as ‘social beings’, as parts of social structures (family, work, educational system). Secondly, following the liberal tradition, EU law guarantees the availability and effectiveness of positive rights which can be invoked by the individual against the State. Thirdly, EU law reinforces the individuals’ capacity to articulate their own choices and act upon them. Drawing from ideas developed in the work of Floris de Witte and Loïc Azoulai, Julie Rondu offers a substantial and in-depth analysis of the phenomena of individual recognition, empowerment and emancipation through EU law.

Moreover, the book sheds light on the dynamics of inclusion-exclusion and assimilation-differentiation that mark the European process of vesting individuals with subjective rights. It does not conceal the limits and risks of this process. The limits are due to the functional character of subjectification. Indeed, despite the evolution which has taken place since the early days of the Treaties, the individual is often still perceived as worthy of protection only when serving the interests of European integration. Rights are essentially conferred for the purpose of enabling the proper functioning of the internal market and of achieving other EU objectives. As for the risks, the process of functional subjectification carries the potential, originally identified by Alexander Somek, of creating egoist and de-socialised individuals, self-alienated and alienated. Without exaggerating it, Julie Rondu points to the criticism of EU law giving priority to private interests over collective choices made by national communities through democratic processes. Furthermore, while intensifying the individuals’ capacity to realise their aspirations, EU law can induce phenomena of abuse, which the concept of ‘abuse of law’, as developed in the Court’s case law, cannot prevent. The book also expresses concern about the progressive detachment of individuals from national belonging not being accompanied by the development of a supranational consciousness and identity. This kind of concern has to be seriously taken into account and addressed.

Last but not least, the book demonstrates the centrality of the place of the individual in the European project. Such demonstrations are important in the current context of ‘polycrisis’ and the growing scepticism (and even hostility) of Union citizens towards the European project.  With the EU suffering a lack of credit, trust and support in public opinions, legal perspective and analysis become essential in the debate on the added value of European integration for the individual. The one offered by Julie Rondu is well-documented (it mobilises a vast French and English speaking legal literature), far-reaching and convincing.

Anastasia Iliopoulou-Penot is a Professor at the University Panthéon-Assas (Paris 2).


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