欧洲法律下儿童行动自由权利的双重途径:“儿童均衡”能否指导对脱欧后居住在欧盟的英国儿童权利的解释?

T. Petrova
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引用次数: 1

摘要

英国脱欧的决定引发了强烈的政治、法律以及最后但并非最不重要的社会动荡。可以说,对于作为欧盟一部分长大的孩子、来自混合国籍家庭的孩子和/或与不同国家和教育体系有跨境关系的孩子来说,这种影响甚至更大。在解释脱欧后欧盟法律赋予英国国籍儿童的权利时,应首先考察脱欧前儿童在欧洲行动自由法下的权利,以评估取消欧洲公民身份将带来的确切变化范围。对欧洲法院(“ECJ”)关于行动自由权利的判例法的概述表明,欧盟法律对儿童权利的理解发生了演变,这一发展越来越多地体现了儿童的具体需要,这体现在儿童的基本权利条款中。这种发展以零星的方式出现,时而将儿童权利视为其父母的欧盟法律市场权利的附属附加条款,时而承认儿童的个人权利。最终,为了维护“儿童的平衡”,欧洲法院试图通过引用《欧盟基本权利宪章》第24条所载的儿童基本权利,在欧盟法律下审查儿童的联盟公民身份和权利,从而加强后一种方法。提到所谓的“儿童平衡”意味着在解释欧洲法律时采取了一种与儿童有关的方法,通过这种方法可以实现所述的平衡。然而,除了将第24条列入法律讨论之外,为确保儿童的平衡而制订一项全面的与儿童有关的办法需要在两个主要方向上进一步进行司法工作。也就是说,仍然需要更多的指导,特别是在详细阐述欧盟统一的儿童权利义务和确保儿童被视为个人权利持有人方面。在这些现有标准的基础上,为了本文的目的,一种与儿童有关的办法是通过将儿童视为独立享有权利的个人来表明在法律推理中考虑和纳入儿童权利。本文将论证,如果在解释具有英国国籍的儿童的欧盟法律相关权利时,采用与儿童有关的方法来维持儿童的平衡这一目标,则可以降低即将到来的法律不确定性。此外,由于拟议的办法也可以以《儿童权利公约》为基础,它也可以作为在联合王国适用“儿童均衡”办法的桥梁,以期在《宪章》不再适用的时候。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
The Twofold Approach to Children’s Freedom of Movement Rights Under European Law: Can ‘Children’s Equilibrium’ Guide the Interpretation of the Post-Brexit Rights of UK Children Residing in the EU?
The United Kingdom’s decision to leave the EU is causing a strong political, legal and, last but not least, social turmoil. Arguably, the impact is even greater for children who are growing up as part of the Union, and belong to families of mixed nationalities, and/or have cross-border relations to different states and educational systems. The interpretation of the post-Brexit EU law rights of children with British nationality should first examine the pre-Brexit children’s rights under the European freedom of movement law to assess the exact scope of the change that the removal of European citizenship will entail. An overview of the case law of the European Court of Justice (“ECJ”) on the freedom of movement rights demonstrates an evolution in the understanding of the rights of children under EU law, a development which observes more and more children’s specific needs, as embodied in children’s fundamental rights provisions. This development came about in a sporadic fashion, shifting between treating children’s rights as ancillary add-ons to their parents’ EU law market rights and acknowledging children’s individual rights. Eventually, the ECJ attempted to reinforce the latter approach by examining children’s Union citizenship and rights under EU law by referencing children’s fundamental rights, enshrined in Article 24 of the Charter of Fundamental Rights of the European Union, for the sake of maintaining “children’s equilibrium”. The referring to the so-called ‘“children’s equilibrium”’ would suggest that a respective child-related approach was adopted in the interpretation of European law via which the stated equilibrium could be achieved. Yet, apart from the inclusion of Article 24 in the legal discussion, the development of a comprehensive child-related approach with a view to the securing of children’s equilibrium requires further judicial engagement in two main directions. Namely, the need for more guidance remains, especially along the lines of elaborating the EU’s uniform children’s rights obligations and making sure that children are seen as individual rights holders. On the basis of these existing criteria, for the purpose of this paper a child-related approach is to indicate the consideration and integration of children’s rights in the legal reasoning, by regarding children as independent rights-bearing individuals. The paper will argue that the upcoming legal uncertainties could be levelled down if the goal of maintaining children’s equilibrium through the child-related approach was applied in the interpretation of the EU law-related rights of children with British nationality. Further, since the proposed approach could also be based on the Convention on the Rights of the Child, it could also serve as a bridge for the application of the “children’s equilibrium” approach in the UK with a view to a time when the Charter is not to be applicable any longer.
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