Papers by Virginia Passalacqua
European Law Open, May 31, 2023
The preliminary reference procedure is today the 'infringement procedure of the European citizen'... more The preliminary reference procedure is today the 'infringement procedure of the European citizen'. Although it was initially designed as a mechanism for judicial cooperation, the procedure soon became an instrument for supranational judicial review of national legislation. Such a discrepancy between the intended role of the preliminary reference procedure and its actual use in practice has important consequences that are yet to be fully explored in the literature. Indeed, how can the Court of Justice appropriately review national legislation through a procedure designed for interpreting EU law? Is the procedure governing the preliminary reference mechanism suitable to perform such a role? In this paper, we focus on one issue in particular: the way in which the Court of Justice gains information regarding the legal and factual background of the case. The Court has long recognised that appropriate knowledge of the factual and legal context of the referred case is a necessary prerequisite to performing its scrutiny and that, in accordance with the judicial cooperation model, such information is provided by the national judge. The Article critically examines the rules of procedures and the case law to show that the national judge certainly plays a key role, but other actors contribute to shaping the Court's knowledge too. After an analysis of each actor's role, the Article concludes that the procedure offers few guarantees as to the effective participation of individual parties to the advantage of other actors in the proceedings, increasing the risk of having partial or unbalanced information regarding the legal and factual background of the cases.
Edward Elgar Publishing eBooks, Apr 9, 2024
Edward Elgar Publishing eBooks, Apr 9, 2024
Common market law review, Dec 1, 2023
Utrecht law review, Dec 31, 2022
This paper uses the case of Italy during the Covid-19 pandemic to critically assess the EU legal ... more This paper uses the case of Italy during the Covid-19 pandemic to critically assess the EU legal framework on third-country national migrants' equal access to social benefits. In Italy, migrants are structurally excluded from core social protections, a situation that during the pandemic led to a worsening of existing patterns of inequality; migrants have been more exposed than citizens to poverty, unemployment, and destitution. The first part of the paper looks for the EU legal root of this situation: it examines the EU legal framework in the migration field, showing that it is affected by fragmentation and inconsistencies. These problems become even more acute at the national level, where the Italian legislature mis-transposed the EU migration directives, thus affecting the use of discretionary clauses therein and severely curtailing migrants' equal treatment rights. Then, the second part of the paper asks whether adopting a mainstreaming approach to enhance equality could improve the situation of migrants. The paper argues that equality mainstreaming in the migration field shows good potential, while also encountering some structural limits. Therefore, it can hardly be considered a silver bullet against the problem of migrants' discrimination.
In 2014, the European Union adopted the Seasonal Workers Directive to achieve a twofold aim: meet... more In 2014, the European Union adopted the Seasonal Workers Directive to achieve a twofold aim: meeting employers' demand for flexible and cheap labour and enhancing protection for third-country national (TCN) workers. Especially Article 23, the equal treatment provision, triggered a cautious optimism among scholars and trade unions, which looked at the Directive as a source of increased protection for seasonal workers. However, trade unions also pointed out the limited reach of the Directive, criticising its lack of commitment and ambition. Over the years, and especially during the Covid pandemic, it became clear that the Seasonal Workers Directive did not represent a game-changer for TCN seasonal workers, whose increased protections remained true only on paper. This contribution draws on the case of Italy during the pandemic to understand the reasons for the Directive's limited impact. The article critically examines the different political tensions underpinning the adoption of the Directive, to better understand why the Directive is not applied in practice and how it impacts the labour market and migrants' social conditions.
‘Words can hurt’, said Advocate General Maduro in the opening of his Opinion in the case of Feryn... more ‘Words can hurt’, said Advocate General Maduro in the opening of his Opinion in the case of Feryn.1 Likewise, Advocate General Sharpston began her Opinion in Associazione Avvocatura per i diritti LGBTI by saying ‘Words have wings’.2 The present case note starts by saying that words might act like boomerangs:3 they can return to the individual who initially pronounced them in the form of a legal sanction. In the case of Associazione Avvocatura per i diritti LGBTI,4 the mobilisation of the jurisprudential principles developed by the Court of Justice in Feryn and Asociația Accept
Social Science Research Network, 2020
Over the years, many theories have tried to explain the puzzle of cross-national variation in pre... more Over the years, many theories have tried to explain the puzzle of cross-national variation in preliminary reference rates before the Court of Justice of the European Union. Some authors focused on inter-court competition, others focused on national legal culture and Euroscepticism, others highlighted the importance of judges’ attributes such as their EU legal education and workload. This article, relying on a comparison of three country case studies in the field of migration law, makes the case that in order to understand the use of the preliminary reference procedure, we must also take into account national patterns of legal mobilization. Utilizing empirical qualitative research the article identifies three national-level conditions that help explain the emergence of legal mobilization through preliminary reference: Altruism, Euro-expertise, and an open EU legal opportunity structure. The article makes both an empirical and a theoretical contribution by bridging the scholarship on legal mobilization and EU judicial politics. This paper was awarded the Ius Commune Prize 2020, see https://www.iuscommune.eu/
Common Market Law Review, Jun 1, 2021
Over the years, many theories have tried to explain the puzzle of cross-national variation in pre... more Over the years, many theories have tried to explain the puzzle of cross-national variation in preliminary reference rates before the ECJ. Most of the contributions focused on the role of national judges, examining their legal education, policy preferences, workload, and attitude towards higher courts. This article adopts, instead, a legal mobilization perspective that decentralizes the role of courts and redirects the focus to the litigants and their political context. Relying on empirical research and on a comparison of three country case studies in the field of migration, the article argues that national patterns of mobilization influence the emergence of preliminary references. Moreover, it identifies three factors at the national level that help understand when legal mobilization occurs via preliminary reference: altruism, Euro-expertise, and EU legal opportunity structure. The article makes both an empirical and a theoretical contribution by bridging the scholarship on legal mobilization and EU judicial politics.
During the first four months of 2011 Italian courts referred an extraordinary number of requests ... more During the first four months of 2011 Italian courts referred an extraordinary number of requests for preliminary ruling to the Court of Justice of the European Union concerning the interpretation of the Return Directive. The Court ruled on the first of these references on 28 April 2011, when decided on the case of El Dridi. This judgment found Italian criminal provisions on undocumented migrants inconsistent with European standards and pressured the Italian government to reform the Italian Alien Law. To be sure, there are studies on the case of El Dridi and its impact on the protection of undocumented migrants’ rights. However, legal scholarship has given scant attention to the reasons that may explain the emergence of the many concurrent preliminary references. Moreover, given the preferred focus on the role of the Court of Justice in studies on preliminary rulings, the societal roots of supranational litigation have been largely overlooked. With the aim of filling these gaps, this paper investigates into factors that led several Italian courts to request a decision from the Court of Justice and argues that this cannot be explained with a centralized and institutional focus. Instead, what is needed is a bottom-up approach that investigates what happened at the national level, looks at the political situation at that time and at the social actors involved. The paper argues that the preliminary references of 2011 are an example of supranational legal mobilization: a network of civil society actors, judges, legal scholars and lawyers used the Court of Justice to achieve a change within the national migration legal framework. In so doing, the paper provides new insights into the political role of litigation before the Court of Justice and in the field of European migration law. ......................................................................................................................
European Law Open
In 2014, the European Union adopted the Seasonal Workers Directive to achieve a twofold aim: meet... more In 2014, the European Union adopted the Seasonal Workers Directive to achieve a twofold aim: meeting employers’ demand for flexible and cheap labour and enhancing protection for third-country national (TCN) workers. Especially Article 23, the equal treatment provision, triggered a cautious optimism among scholars and trade unions, which looked at the Directive as a source of increased protection for seasonal workers. However, trade unions also pointed out the limited reach of the Directive, criticising its lack of commitment and ambition. Over the years, and especially during the Covid pandemic, it became clear that the Seasonal Workers Directive did not represent a game-changer for TCN seasonal workers, whose increased protections remained true only on paper. This contribution draws on the case of Italy during the pandemic to understand the reasons for the Directive’s limited impact. The article critically examines the different political tensions underpinning the adoption of the D...
Common Market Law Review
Over the years, many theories have tried to explain the puzzle of cross-national variation in pre... more Over the years, many theories have tried to explain the puzzle of cross-national variation in preliminary reference rates before the ECJ. Most of the contributions focused on the role of national judges, examining their legal education, policy preferences, workload, and attitude towards higher courts. This article adopts, instead, a legal mobilization perspective that decentralizes the role of courts and redirects the focus to the litigants and their political context. Relying on empirical research and on a comparison of three country case studies in the field of migration, the article argues that national patterns of mobilization influence the emergence of preliminary references. Moreover, it identifies three factors at the national level that help understand when legal mobilization occurs via preliminary reference: altruism, Euro-expertise, and EU legal opportunity structure. The article makes both an empirical and a theoretical contribution by bridging the scholarship on legal mo...
Common Market Law Review, 2021
Over the years, many theories have tried to explain the puzzle of cross-national variation in pre... more Over the years, many theories have tried to explain the puzzle of cross-national variation in preliminary reference rates before the ECJ. Most of the contributions focused on the role of national judges, examining their legal education, policy preferences, workload, and attitude towards higher courts. This article adopts, instead, a legal mobilization perspective that decentralizes the role of courts and redirects the focus to the litigants and their political context. Relying on empirical research and on a comparison of three country case studies in the field of migration, the article argues that national patterns of mobilization influence the emergence of preliminary references. Moreover, it identifies three factors at the national level that help understand when legal mobilization occurs via preliminary reference: altruism, Euro-expertise, and EU legal opportunity structure. The article makes both an empirical and a theoretical contribution by bridging the scholarship on legal mobilization and EU judicial politics.
Tijdschrift voor Bestuurswetenschappen en Publiekrecht, 2016
During the first four months of 2011 Italian courts referred an extraordinary number of requests ... more During the first four months of 2011 Italian courts referred an extraordinary number of requests for preliminary ruling to the Court of Justice of the European Union concerning the interpretation of the Return Directive. The Court ruled on the first of these references on 28 April 2011, when decided on the case of El Dridi. This judgment found Italian criminal provisions on undocumented migrants inconsistent with European standards and pressured the Italian government to reform the Italian Alien Law. To be sure, there are studies on the case of El Dridi and its impact on the protection of undocumented migrants’ rights. However, legal scholarship has given scant attention to the reasons that may explain the emergence of the many concurrent preliminary references. Moreover, given the preferred focus on the role of the Court of Justice in studies on preliminary rulings, the societal roots of supranational litigation have been largely overlooked. With the aim of filling these gaps, this paper investigates into factors that led several Italian courts to request a decision from the Court of Justice and argues that this cannot be explained with a centralized and institutional focus. Instead, what is needed is a bottom-up approach that investigates what happened at the national level, looks at the political situation at that time and at the social actors involved. The paper argues that the preliminary references of 2011 are an example of supranational legal mobilization: a network of civil society actors, judges, legal scholars and lawyers used the Court of Justice to achieve a change within the national migration legal framework. In so doing, the paper provides new insights into the political role of litigation before the Court of Justice and in the field of European migration law.
Law and Development Review
Like any other adjudicative body, the Court of Justice of the European Union (CJEU) is an essenti... more Like any other adjudicative body, the Court of Justice of the European Union (CJEU) is an essentially reactive institution: it cannot create disputes on its own motion, but it needs to be ‘mobilized’. This simple observation leads us to a question of central importance in the field of courts and social justice: who brings social justice claims before the Court of Justice? This is a particularly salient question if confronted with the Court’s restrictive legal standing rules: individuals and collective actors have limited access to the Court and engaging in EU litigation requires the availability of specific resources and allies. This paper relies on an original dataset of 291 rulings of the CJEU in the field of migration, complemented with qualitative empirical research, to unveil and map the actors that defend migrant rights in Luxembourg. The analysis offers an innovative and critical reflection on the accessibility of international courts by disadvantaged groups, showing how some...
SSRN, 2020
This paper was awarded the Ius Commune Prize 2020 (https://www.iuscommune.eu/), full text availab... more This paper was awarded the Ius Commune Prize 2020 (https://www.iuscommune.eu/), full text available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3810155
Over the years, many theories have tried to explain the puzzle of cross-national variation in preliminary reference rates before the Court of Justice of the European Union. Some authors focused on inter-court competition, others focused on national legal culture and Euroscepticism, others highlighted the importance of judges’ attributes such as their EU legal education and workload. This article, relying on a comparison of three country case studies in the field of migration law, makes the case that in order to understand the use of the preliminary reference procedure, we must also take into account national patterns of legal mobilization. Utilizing empirical qualitative research the article identifies three national-level conditions that help explain the emergence of legal mobilization through preliminary reference: Altruism, Euro-expertise, and an open EU legal opportunity structure. The article makes both an empirical and a theoretical contribution by bridging the scholarship on legal mobilization and EU judicial politics.
EUI Working Paper LAW, 2017
The EU Equality Directives represented a key turning point in the field of anti-discrimination la... more The EU Equality Directives represented a key turning point in the field of anti-discrimination law in Italy. However, the Italian law-maker failed to implement the Directives systematically, and this generated confusion about their interpretation and application. This also affected the participation of collective actors. With the aim of understanding whether EU equality law has facilitated collective actors' access to courts, the paper examines the role that they have played in the anti-discrimination cases brought before the Court of Justice of the EU. In Italy, collective actors participated in a limited number of preliminary references, mostly in the field of discrimination on the grounds of nationality. The work of collective actors, both inside and outside the courtroom, has been crucial in creating a decentralized form of enforcement of EU equality law. Through litigation and campaigns, collective actors contributed to the full implementation of EU anti-discrimination law, filling the gaps left by the Italian law-maker. The paper concludes that, on the one hand, EU law introduced important tools to enhance protections against discrimination in Italy; but, on the other, the unsystematic transposition of EU law created some obstacles to the protection of migrants from discrimination and to collective actors' access to courts.
European Constitutional Law Review, 2020
In its judgment on the case of Rete Lenford, the Court of Justice addressed for the third time th... more In its judgment on the case of Rete Lenford, the Court of Justice addressed for the third time the issue of discriminatory statements, this time pronounced by an Italian lawyer against homosexual people. The Court built on the principles elaborated in the cases of Feryn and Asociația Accept, to declare that the prohibition against discrimination contained in the Framework Directive applies also to declarations made in contexts where there is no recruitment procedure in place, provided that there is a non-hypothetical link with the employer’s recruitment policy. This comment focuses on the enforcement of EU equality law in the national context, arguing that the case is an example of three parallel processes: the institutionalization, the proceduralization, and the expansion of EU Equality law.
Keywords: EU anti-discrimination law, LGBTI rights, Equality, Court of Justice of the EU.
Uploads
Papers by Virginia Passalacqua
Over the years, many theories have tried to explain the puzzle of cross-national variation in preliminary reference rates before the Court of Justice of the European Union. Some authors focused on inter-court competition, others focused on national legal culture and Euroscepticism, others highlighted the importance of judges’ attributes such as their EU legal education and workload. This article, relying on a comparison of three country case studies in the field of migration law, makes the case that in order to understand the use of the preliminary reference procedure, we must also take into account national patterns of legal mobilization. Utilizing empirical qualitative research the article identifies three national-level conditions that help explain the emergence of legal mobilization through preliminary reference: Altruism, Euro-expertise, and an open EU legal opportunity structure. The article makes both an empirical and a theoretical contribution by bridging the scholarship on legal mobilization and EU judicial politics.
Keywords: EU anti-discrimination law, LGBTI rights, Equality, Court of Justice of the EU.
Over the years, many theories have tried to explain the puzzle of cross-national variation in preliminary reference rates before the Court of Justice of the European Union. Some authors focused on inter-court competition, others focused on national legal culture and Euroscepticism, others highlighted the importance of judges’ attributes such as their EU legal education and workload. This article, relying on a comparison of three country case studies in the field of migration law, makes the case that in order to understand the use of the preliminary reference procedure, we must also take into account national patterns of legal mobilization. Utilizing empirical qualitative research the article identifies three national-level conditions that help explain the emergence of legal mobilization through preliminary reference: Altruism, Euro-expertise, and an open EU legal opportunity structure. The article makes both an empirical and a theoretical contribution by bridging the scholarship on legal mobilization and EU judicial politics.
Keywords: EU anti-discrimination law, LGBTI rights, Equality, Court of Justice of the EU.