Dimitry Kochenov

Central European University | CEU · Department of Legal Studies

This paper engages with the routine normalisation of mass violations of human rights at the EU–Belarusian border. The direct and indirect victimisation of the racialised ‘other’ on the Eastern border of the Union is a direct extension of the EU-sponsored war on the racialised passport-poor in the Mediterranean. Together, the two form one clear and...

Citizenship and residence by investment is a fast-growing global phenomenon. As of 2022, more than a third of all countries in the world offered paths to membership in exchange for a donation or investment into their economies. Yet we know little about how these programmes operate and debates in academia and the wider public are often misinformed b...

Citizenship and residence by investment is a fast-growing global phenomenon. As of 2022, more than a third of all countries in the world offered paths to membership in exchange for a donation or investment into their economies. Yet we know little about how these programmes operate and debates in academia and the wider public are often misinformed b...

Forthcoming in 47 European Law Review 2022, please consult the Review for the final paginated version The Court of Justice outlawed the deprivation of EU citizenship in the context of the swaps of nationalities of the Member States of the European Union. Although this outcome is both welcome and long-awaited, the decision falls short of expectatio...

The war in Ukraine triggered significant changes at the European Union level. The speed at which the EU has achieved progress on sanctions, migration and defense is particularly impressive. But the Russian aggression against Ukraine has also served as a pretext for putting aside internal discussions about the rule of law, and provided additional po...

Bringing together scholars of migration and constitutional law, this volume analyses the problematic relationship between the rise of populism, restrictions of migrants' rights and democratic decay in Europe. By offering both constructive and critical accounts, it creates a nuanced debate on the possibilities for and limitations of legal resilience...

The Court of Justice of the European Union (CJEU) is the apex of the EU legal order, and is the supreme arbiter of EU law. For decades, it has delivered judgments, collectively shaping European integration and ‘integration through law’. It has undoubtedly been an authoritative leader in entrenching a European judicial culture, and has benefited fro...

The effects of populist narratives have become an increasingly important topic on the European Union (EU) agenda, both political and juridical, because no EU Member State is immune from populist movements, which are ever-popular.1 The last decade demonstrated that domestic constitutional populism has the ability to affect the supranational politica...

Traffic violations are not a proportionate justification to effectively deprive a person of her EU citizenship. Moreover, situations where a renunciation of a previous Member State nationality is required before naturalizing in the Member State of residence, are unquestionably within the scope of EU law and Rottmann / Tjebbes-proportionality is req...

This article discusses how the application the EU Charter of Fundamental Rights contributes to the fight for the rule of law in the EU. After outlining the connections between the two it focuses on two examples of how the Charter could and should play a more significant role in upholding the rule of law. As to Member State-level rule of law breakdo...

The design and management of digital identity is a complex challenge. On the one hand, it requires a clear understanding of the parameters that are involved in identity management. On the other hand, it requires the cooperation of many stakeholders. In particular, this involves those public authorities and private organisations that need to be alig...

The Digital Green Certificate (DGC) proposed by the European Commission on the basis of facilitating the free movement rights of European Union (EU) citizens will be capable of effectively serving as a COVID-19 passport. In this contribution, we cast doubt on whether the DGC is fit for purpose, highlighting in particular the potential for the DGC t...

The task of this brief editorial is to provide a concise tour d’horizon of EU law development in the field of the Rule of Law over the last years, which have significantly reinforced the powers of the supranational institutions in the domains, which have previously never been considered part of supranational competence/purview of regulation. While...

Distributed Ledger Technology can be an effective tool for resource distribution. As individuals and organisations explore innovations which allow to redefine the rules of access, possession and sharing these developments also become important for the future of self-determination. Demonstrated through credit scoring and 'social credit systems', the...

The crystallisation of a core EU meaning of the rule of law and its (limited) normative influence beyond the EU: Work Package 7 -Deliverable 3

This article provides a brief critical assessment of the European Commission’s January 2019 “Report on Investor Citizenship and Residence Schemes in the European Union”. Since it is the first detailed document by the Commission outlining this institution’s position on the matters of investment residence and citizenship, and given the Commission’s r...

We demonstrate that the CJEU’s Achmea judgment has resulted in significantly more damage beyond the termination of intra-EU BITs. It made the application of EU law difficult, if not impossible. Indeed, it has opened the floodgate to deficient judicial protection in the face of structural backsliding of the rule of law in some EU Member States. Whil...

This brief text is an attempt to answer the question what is to come in citizenship’s place, once the concept is gone. The answer proposed is: ‘the next step from citizenship is no citizenship’. The contribution focuses on the unacceptability of the passport apartheid in the contemporary world and is a reply to the critics of my little book entitle...

This article looks at central opportunities and drawbacks of the ‘passportization’ approach to governing the current health emergency. It showcases the complexity of the ‘vaccination passports’ idea, the technological and organisational difficulties expected during implementation, as well as its regrettable appeal. We provide a comprehensive overvi...

The goal of this chapter is to contribute to the growing Article 7 TEU literature by showcasing the strong and weak points of this provision in the context of the on-going rule of law backsliding in Hungary and Poland threatening the very fabric of EU constitutionalism. This is done by presenting the general context of the institutional reactions t...

Although compliance with the founding values is presumed in its law, the Union is now confronted with persistent disregard of these values in two Member States. If it ceases to be a union of Rule-of-Law-abiding democracies, the European Union (EU) is unthinkable. Purely political mechanisms to safeguard the Rule of Law, such as those in Article 7 T...

In G. Amato and B. Barbisan (eds), Rule of Law vs Majoritarian Democracy, Oxford: Hart Publishing, 2021 In this paper we analyze the state of the debate on the Rule of Law challenges and developments in the European Union leading to the release of the 2019 Commission Communication ‘Strengthening the Rule of Law: A Blueprint for Action’ and provide...

J.I. Ugartemendia and A. Saiz Arnaiz (Eds), ¿Está en peligro el Estado de Derecho en la Unión Europea? (Oñate: IVAP, 2021) En este trabajo, que abarca una comprensión dialógica del Estado de Derecho, me centro en la “otra” cara de la moneda del Estado de Derecho en Europa, en contraposición a la historia de la lucha por los valores del artículo 2...

This article looks at central opportunities and drawbacks of the ‘passportization’ approach to governing the current health emergency. It showcases the complexity of the ‘vaccination passports’ idea, the technological and organisational difficulties expected during implementation, as well as its regrettable appeal. We provide a comprehensive overvi...

The Russian Constitution was adopted by a referendum on December 12, 1993. It was inspired by Western constitutional traditions and internationally recognised democratic and human rights values. The Constitution established three core features of the Russian constitutional order, all breaking with the Soviet past: • The Constitutional provisions on...

In Adam Bodnar and Jakub Urbanik (eds), Περιμένοντας τους Bαρβάρους. Law in the days of Constitutional Crisis. Studies offered to Mirosław Wyrzykowski, Munich/Baden Baden: C.H. Beck/Nomos, 2021 (in press). In this contribution, which embraces a dialogical understanding of the Rule of Law, I focus on the ‘other’ side of the Rule of Law coin in Euro...

At present, there is great variance in the law and practice concerning the publication of personal data of newly naturalized citizens across the European Union Member States, affecting a million individuals annually. Depending on the extent of the personal details made available, publishing the fact that an individual has naturalized can have negat...

13 The Hague Journal of the Rule of Law, 2021 We demonstrate that the CJEU’s Achmea judgment has resulted in significantly more damage beyond the termination of intra-EU BITs. It made the application of EU law difficult, if not impossible. Indeed, it has opened the floodgate to deficient judicial protection in the face of structural backsliding o...

The strategies and mechanisms used by national authorities to systematically undermine the Rule of Law and possible EU responses

Distributed Ledger Technology can be an effective tool for resource distribution. As individuals and organisations explore innovations which allow to redefine the rules of access, possession and sharing these developments also become important for the future of self-determination. Demonstrated through credit scoring and ‘social credit systems’, the...

This paper provides a detailed critical analysis of the case of Coman, where the Court of Justice clarified that the meaning of the term ‘spouse’ in Directive 2004/38 was gender-neutral, opening up the door for same-sex marriage recognition for immigration purposes all around the EU, thus destroying the heteronormative misinterpretations of the cle...

This chapter, inspired by the œuvre of Professor Wojciech Sadurski, argues that the accession to the EU was for Hungary, Poland, and other Central and Eastern European Member States in part a way to protect their nascent liberal democracies and state structures against internal and external pressures. The rule of law backsliding on the ground attes...

Kälin and Kochenov's Quality of Nationality Index (QNI) ranks the objective value of all nationalities as legal statuses of attachment to states. Using a wide variety of strictly quantifiable data to gauge the opportunities presented and limitations imposed by nationalities on their holders, the QNI provides a comprehensive ranking of the intrinsic...

This paper is the introduction to the QNI, aiming to show the avenues of demystifying the concept of citizenship through the use of data. Kälin and Kochenov's Quality of Nationality Index (QNI) ranks the objective value of all nationalities as legal statuses of attachment to states. Using a wide variety of strictly quantifiable data to gauge the op...

This Working Paper addresses the key questions surrounding the meaning and scope of the EU rule of law: primarily whether, and the extent to which, supranational understandings of the rule of law differ, if at all, from the national understandings. The Paper comes to the conclusion that the rule of law can and should be considered a core and consen...

This working paper aims to assess the extent to which the European Commission is correct in asserting that the rule of law is not only a well-established principle whose core legal meaning is shared across the EU. In tandem with the second working paper for work package 7 prepared within the framework of the RECONNECT research project, it will move...

While the digital layer of social interaction continues to evolve, the recently proclaimed hopes in the development of digital identity could be both naïve and dangerous. Rather than just asking ourselves how we could digitize existing features of identity management, and corresponding financial transactions on a community or state level, we submit...

In Nathan Cambien, Dimitry Kochenov and Elise Muir (eds), European Citizenship under Stress: Social Justice, Brexit, and Other Challenges, Leiden/Boston: Brill-Nijhoff, 2020, pp. 11–27. European Citizenship, although derived from the nationalities of the Member States, came to play a significant independent role in reforming European constitutiona...

The rule of law backsliding in Hungary and Poland revealed the EU’s significant vulnerabilities in the face of the need to uphold the values that the whole system of EU integration presumes are in place. The lessons are revealing: respecting the acquis does not guarantee continuing adherence to Article 2 TEU values; economic success in the Union do...

In Nathan Cambien, Dimitry Kochenov and Elise Muir (eds), European Citizenship under Stress: Social Justice, Brexit, and Other Challenges, Leiden/Boston: Brill-Nijhoff, 2020, pp. 1–10. European citizenship is facing numerous challenges, including fundamental rights and social justice considerations. These get amplified in the context of Brexit and...

This paper provides a critical annotation of the case of Coman, where the Court of Justice clarified that the meaning of the term ‘spouse’ in Directive 2004/38 was gender-neutral, opening up the door for same-sex marriage recognition for immigration purposes all around the EU, thus destroying the hetero-normative misinterpretations of the clear lan...

RECONNECT Working Paper (Leuven) no. 11, 2020, 1–23. This article focuses on the difficult relationship between the fight for the Rule of Law in the EU and the EU Charter of Fundamental Rights. It outlines the connections between the two and then focuses on when and how the Charter could and should play a more significant role in upholding the Rul...

The Jean Monnet Working Paper Series, No. 2, 2020, Jean Monnet Center for International and Regional Economic Law & Justice, School of Law, New York University. A short few days in September 2020 saw an extraordinary turn of events. The Member States of the European Union used the withdrawal of a Member State from the European Union (EU) as a pret...

The EU has been facing the Rule of Law crisis for almost a decade now. Undermining the separation of powers directly affects the Rule of Law in a given state, but at the same time it affects the EU integration as well, since the Rule of Law is one of its fundamental values. The paper builds on previous RECONNECT research, such as that on the meanin...

Forthcoming in A. Iliopoulou-Penot et L. Xenou (Eds.), La Charte des droits fondamentaux, source de renouveau constitutionnel européen? (Bruxelles : Bruylant, 2020), collection «Droit de l'Union européenne / colloques» Ce chapitre offre un bref aperçu des liens entre la lutte contre le recul de l'État de droit au sein de l'Union européenne et la C...

The story of citizenship as a tale not of liberation, dignity, and nationhood but of complacency, hypocrisy, and domination. The glorification of citizenship is a given in today's world, part of a civic narrative that invokes liberation, dignity, and nationhood. In reality, explains Dimitry Kochenov, citizenship is a story of complacency, hypocrisy...

This contribution honouring Prof. Martin Krygier scholarship provides a brief critical reading of the European Commission’s July 2019 Communication on the Rule of Law (COM(2019) 343 final). It argues that although the Commission’s effort is welcome, the Communication fails to correctly identify the core problem related to the Rule of Law in the EU,...

UK nationals will lose their EU citizenship status as a result of the Brexit referendum. To prevent this, several commentators, including the European Parliament Brexit negotiator Guy Verhofstadt, proposed to grant associate EU citizenship to UK nationals to safeguard their rights as EU citizens after Brexit. We make the case against associate EU c...

This contribution contains a concise annotated analysis of Article 2 TEU, the EU Treaty’s key provision on values, prepared for the Oxford Commentary and aiming to give a reliable first overview of basic history and all the key elements and functions of this provision.

In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

Article 8 TEU formally constitutionalizes the European Neighbourhood Policy (ENP) of the EU, which, until the ToL has only been based on soft law. Before the entry into force of the ToL not a single provision of the Treaties dealt specifically with the strengthening of relations with the neighbourhood of the EU. Article 8 TEU was supposed to bridge...

Article 187 EC The Council, acting unanimously on a proposal from the Commission, shall, on the basis of the experience acquired under the association of the countries and territories with the Union and of the principles set out in the Treaties, lay down provisions as regards the detailed rules and the procedure for the association of the countries...

Article 156 EC The guidelines and other measures referred to in Article 171(1) shall be adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions.

Article 309 EC For the purposes of Article 7 of the Treaty on European Union on the suspension of certain rights resulting from Union membership, the member of the European Council or of the Council representing the Member State in question shall not take part in the vote and the Member State in question shall not be counted in the calculation of t...

Article 154 EC To help achieve the objectives referred to in Articles 26 and 174 and to enable citizens of the Union, economic operators and regional and local communities to derive full benefit from the setting-up of an area without internal frontiers, the Union shall contribute to the establishment and development of trans-European networks in th...

Article 185 EC If the level of the duties applicable to goods from a third country on entry into a country or territory is liable, when the provisions of Article 200(1) have been applied, to cause deflections of trade to the detriment of any Member State, the latter may request the Commission to propose to the other Member States the measures neede...

Article 299(2) Taking account of the structural social and economic situation of Guadeloupe, French Guiana, Martinique, Mayotte, Réunion, Saint-Martin, the Azores, Madeira and the Canary Islands, which is compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence a...

Title XVI introduced by ToM contains provisions to ensure that firms and citizens benefit the most from the internal market though the establishment of trans-European networks in transport, energy, and telecommunications, which are both interconnected and interoperable.

Article 184 EC Customs duties on imports into the Member States of goods originating in the countries and territories shall be prohibited in conformity with the prohibition of customs duties between Member States in accordance with the provisions of the Treaties.

On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Articl...

Article 188 EC The provisions of Articles 198 to 203 shall apply to Greenland, subject to the specific provisions for Greenland set out in the Protocol on special arrangements for Greenland, annexed to the Treaties.