TY - JOUR A1 - van den Brink, Martijn T1 - When can religious employers discriminate? The scope of the religious ethos exemption in EU law JF - European Law Open N2 - When are religious employers exempt from the prohibition of discrimination (i.e., when can they discriminate against non-adherents)? The European Union (EU) Equality Framework Directive exempts religious employers from the prohibition of religious discrimination, but the scope of the religious ethos exemption is disputed and its interpretation by the Court of Justice of the European Union (CJEU) in Egenberger and IR v JQ has been criticised for being ultra vires and for disrespecting the constitutional identities of the EU Member States. This article clarifies the religious ethos exemption, by examining the underlying legal and normative issues that determine its scope. It shows that the scope of the exemption depends not just on the Framework Directive but also on the relationship between EU law and national constitutional law and that between EU law and international law. Thus, this article not only provides clarity regarding the religious ethos exemption, but also uses these judgements as an opportunity to revisit these related constitutional issues, and in particular the role of the CJEU and EU legislature in defining the place of national constitutional identity in EU law. Y1 - 2022 U6 - https://doi.org/10.1017/elo.2022.1 VL - 1 IS - 1 SP - 89 EP - 112 ER - TY - CHAP A1 - van den Brink, Martijn ED - Daniel, Thym ED - Dora, Kostakopoulou T1 - The relationship between national and EU citizenship: What is it and what should it be? T2 - Research Handbook on European Union Citizenship Law and Policy. Navigating Challenges and Crises. N2 - In this chapter, Martijn van den Brink discusses two questions: what is the relationship between national and EU citizenship legally speaking, and what should it be normatively speaking? While often conflated, these questions must be considered independently of each other. He argues first that EU law is not even capable of justifying the very minimal restrictions CJEU case law has imposed on the authority of Member States to determine the rules on the acquisition and loss of national citizenship. It certainly cannot justify more far-reaching restrictions such as outlawing investor citizenship or allowing UK nationals to retain their EU citizenship. Normatively speaking, however, Martijn van den Brink makes the case for giving the EU greater influence over the conditions relating to the loss and acquisition of national and EU citizenship, in particular to ensure that third-country nationals with social ties to their society of residence have a credible path to citizenship. Y1 - 2022 UR - https://www.e-elgar.com/shop/gbp/research-handbook-on-european-union-citizenship-law-and-policy-9781788972895.html SN - 978 1 78897 289 5 U6 - https://doi.org/10.4337/9781788972901 SP - 100 EP - 114 PB - Edward Elgar Publishing CY - Cheltenham ER - TY - RPRT A1 - van den Brink, Martijn T1 - An Inconvenient Constraint: A Hungarian Council Presidency and the EU’s Rule of Law N2 - On 1 July 2024, Hungary is set to take over the Presidency of the Council of Ministers. Given the ongoing rule of law violations in Hungary, concrete proposals have been put forward to prevent it from exercising the Presidency. In this Policy Position, Martijn van den Brink analyzes the legal feasibility of these proposals and argues that the proposed EU measures violate the EU’s very own rule of law. Y1 - 2023 UR - https://www.delorscentre.eu/en/publications/detail/publication/an-inconvenient-constraint-a-hungarian-council-presidency-and-the-eus-rule-of-law ER - TY - JOUR A1 - van den Brink, Martijn T1 - A typology of reverse discrimination in EU citizenship law JF - European Law Open N2 - In this Article, Martijn van den Brink sheds new light on one of the longest-running debates in the European Union (EU) citizenship literature: the concept of ‘reverse discrimination’ and the question of whether it is justified. Reverse discrimination has divided EU lawyers into roughly two distinct groups. One group believes that it constitutes an unjustified violation of the principle of equality; a second that it is inevitable in a Union governed by the constitutional principle of divided powers. This Article questions this by offering a typology of reverse discrimination. While most scholars assume that reverse discrimination is a singular phenomenon that demands a singular response, this Article shows that it is a variegated phenomenon that demands a variegated response. It distinguishes three types of reverse discrimination and explains that the proper response depends on the type we are considering. Type I is caused by the application of the principle of mutual recognition; Type II by an interaction between domestic federalism and internal discrimination; and Type III by the CJEU’s confusion over the aim of the right to free movement and residence. Through this typology, the Article shows that reverse discrimination is never a corollary of the principle of divided powers, nor is it always incompatible with the principle of equality. Finally, the Article shows that to the extent that reverse discrimination violates the principle of equality, the solution is not to equalise rights upwards but downwards to the lower (national or regional) level of government. This shows that the principle of equality and the principle of divided powers need not collide. Y1 - 2023 U6 - https://doi.org/10.1017/elo.2022.54 VL - 2 IS - 1 SP - 57 EP - 78 ER - TY - RPRT A1 - van den Brink, Martijn T1 - Taking the Gamble? A Legal and Political Analysis of the Possible Suspension of the Hungarian Council Presidency N2 - Despite its increasingly autocratic style of governance, Hungary is set to take over the Presidency of the Council of Ministers in the second half of 2024, Martijn van den Brink (Jacques Delors Centre, Hertie School of Governance) writes in his CEU DI Working Paper. Since doubts exist about the country’s capacity to exercise the responsibilities that come with this office, different proposals have been put forward to suspend a Hungarian Presidency. This paper offers a legal and political analysis of these proposals. First, the author argues that the proposals in their current form are inconsistent with the requirement in Article 16(9) TEU that the Presidency of the Council shall be held by the Member States on the basis of equal rotation. It is in line with this provision to delay a Hungarian Presidency for some time, but not to sanction the country for as long as it continues to violate the rule of law. Secondly, being mindful of these legal constraints, he questions whether delaying a Hungarian Presidency is a smart choice politically. The choice of delaying a Hungarian Council Presidency is something of a gamble. The analysis suggests it might be better to allow Hungary to chair the Council in the second half of 2024 rather than in several years. Y1 - 2023 UR - https://democracyinstitute.ceu.edu/articles/martijn-van-den-brink-taking-gamble-legal-and-political-analysis-possible-suspension PB - Central European University, Democracy Institute ER - TY - CHAP A1 - Sarmiento, Daniel A1 - van den Brink, Martijn ED - Kochenov, Dimitry ED - Surak, Kristin T1 - EU competence and investor migration T2 - Citizenship and Residence Sales: Rethinking the Boundaries of Belonging N2 - In this chapter, we examine the issue of competence to confer residence and citizenship based on a donation or investment in the light of international and European law as they stand today. We show that the national competence to do this is part of the sovereign nature of the modern state, which implies the ability to create a people and delimit the scope of the population granted a right to settle in the national territory, underpinned by rules behind such delimitation. We also explain why investment migration per se cannot be presented as unlawful and outlines the avenues for the eventual disciplining of its offshoots in areas unrelated to migration as such, thus connecting particularly well with Peter Spiro’s analysis of relevant international law. Y1 - 2023 SN - 9781108492874 U6 - https://doi.org/10.1017/9781108675123.009 SP - 183 EP - 206 PB - Cambridge University Press CY - Cambridge ER - TY - JOUR A1 - van den Brink, Martijn T1 - The Protected Grounds of Religion and Belief: Lessons for EU Non-Discrimination Law JF - German Law Journal N2 - The article draws lessons for EU non-discrimination law from the protected grounds of religion and belief through a discussion of the CJEU’s headscarf judgments. The article has two ambitions. First, the judgments are used to draw broader lessons for EU non-discrimination law, in relation to the distinction between and the justification of direct and indirect discrimination, as well as the purpose of protecting against (religious) discrimination. Second, these lessons are used to analyze the headscarf judgments and the criticism directed at them. While there is widespread agreement that the CJEU erred in these judgments, there is little agreement as to what mistakes were made. Through a discussion of these judgments, the article clarifies the difference between direct and indirect discrimination and the justification of both forms of discrimination. It is argued that the headscarf cases correctly distinguished between direct and indirect discrimination, and that the problem lies in the justificatory burden for indirect discriminatory measures, which was set too low by the CJEU. Y1 - 2023 U6 - https://doi.org/10.1017/glj.2023.54 VL - 24 IS - 5 SP - 855 EP - 880 ER - TY - JOUR A1 - van den Brink, Martijn ED - Szabó, Marcel ED - Gyeney, Laura ED - Láncos, Petra Lea T1 - Off Track, Again? EU Citizenship and the Right to Social Assistance JF - Hungarian Yearbook of International Law and European Law N2 - The right of EU citizens to equal treatment with nationals of the host Member State in respect of social assistance has been subject to significant changes on several occasions between the Treaty of Maastricht and now. The CJEU has struggled to establish consistent standards prescribing when economically inactive citizens can claim social protection, and in 2014 its tendency to construe this right broadly suddenly came to an end. It backtracked on one-and-a-half decades of case law by ruling that citizens could lay no claim to social assistance unless the respective conditions set out in secondary legislation were met. This article discusses the relevant law and its evolution over the past decades for a twofold aim. (i) First, to clarify in an accessible manner in what respects the law has changed from 1993 to the present. (ii) Second, to articulate a framework that allows us to evaluate the CJEU judgments rendered during this period. This framework departs from established ways of thinking about this evaluative question. Much of the EU citizenship literature evaluates the case law by the outcome it brings about. I will argue, instead, that this evaluation is a matter of comparative institutional choice. Such a comparative institutional assessment shows that disputes over the right of EU citizens to claim social assistance should be decided in line with what the EU legislature intended. It follows that the application of a principle of judicial deference to legislation in the second period of social assistance case law from 2014 onwards was justified. Y1 - 2023 UR - https://www.hungarianyearbook.com/volumes SN - 978-90-4730-177-6 U6 - https://doi.org/10.553/HYIEL/266627012023011001003 SN - 2666-2701 VL - 11 SP - 18 EP - 36 ER - TY - JOUR A1 - van den Brink, Martijn T1 - Revising Citizenship within the European Union: Is a Genuine Link Requirement the Way Forward? JF - German Law Journal N2 - EU institutions have argued on several occasions that national and EU citizenship should not be awarded without any genuine link with the Member State concerned. Some scholars have adopted the same position, justifying their position referring to the genuine link requirement established by the International Court of Justice in Nottebohm. This has prompted criticism from legal scholars, who point out that Nottebohm was wrong as a matter of international law and moral principle. This paper shows that supporters and critics have failed to recognise that they have been talking with different conceptions of the genuine link requirement in mind. The question of whether to apply a genuine link requirement for the recognition of nationality is altogether different from the question of whether to apply a genuine link requirement for the acquisition of nationality. Nottebohm concerns the first; the arguments of EU institutions the second. The argument of EU institutions cannot therefore be dismissed by dismissing Nottebohm. I subsequently explore the normative arguments for predicating the boundaries of national membership on a genuine link requirement. There are weighty moral reasons for member states to condition the acquisition of national and EU citizenship on the presence of a genuine link. Finally, moving from the normative to the practical, I argue that such a requirement would have far-reaching consequences (targeting not just investor citizenship schemes) and cannot be enforced as a requirement under EU law. Y1 - 2022 U6 - https://doi.org/10.1017/glj.2022.4 VL - 23 IS - 1 SP - 79 EP - 96 ER - TY - RPRT A1 - Nguyen, Thu A1 - van den Brink, Martijn T1 - An early Christmas Gift from Karlsruhe? The Bundesverfassungsgericht’s NextGenerationEU Ruling N2 - The 6 December ruling of the German Constitutional Court on the constitutional complaints against the EU’s recovery instrument NextGenerationEU seemed to come as an early Christmas gift from Karlsruhe. This time, the German court avoided the head-on collision with the EU. At the same time, the ruling raises crucial questions about the future of EU fiscal integration. While it is not as constraining as some might have feared, it does not give card blanche for a more permanent EU fiscal capacity. In this policy brief, Thu Nguyen and Martijn van den Brink analyse the judgment and its possible implications going forward. Y1 - 2022 UR - https://www.delorscentre.eu/en/the-bundesverfassungsgerichts-nextgenerationeu-ruling ER - TY - JOUR A1 - van den Brink, Martijn A1 - Dawson, Mark A1 - Zglinski, Jan T1 - Revisiting the asymmetry thesis: negative and positive integration in the EU JF - Journal of European Public Policy N2 - The ‘asymmetry thesis’, articulated by Fritz Scharpf, holds that EU governance is characterised by an asymmetry between positive and negative integration. The EU has well-developed capacities for negative integration but only limited capacities for positive integration. The present paper challenges the orthodoxy that this thesis has become in EU law and political science scholarship. It argues that the asymmetry thesis no longer accurately depicts European integration, revisiting its key legal and institutional assumptions. Taking the internal market as the most likely case to test the thesis, we show that negative integration has become weaker, positive integration has gained in strength, and both developments have had an impact on the substance of EU law and policymaking, which is promoting non-economic concerns and market-correcting policies to a greater extent than it used to. These shifts, so we contend, could be even more pronounced in other areas of European integration. Y1 - 2023 U6 - https://doi.org/10.1080/13501763.2023.2296940 ER -