Niamh Nic Shuibhne is Professor of European Union Law. She is one of the Joint Editors of the Common Market Law Review. She was Joint Editor of the European Law Review from 2009-2014, and remains a member of its Editorial Board. She was a Visiting Professor at the College of Europe (Bruges) from 2013-2016, where she introduced the first compulsory course on EU citizenship law.
Her research examines questions of substantive EU law from a constitutional perspective, with a particular focus on principle-based analysis of free movement law and of the judicial function. She is currently working on the legal framework guaranteeing equal treatment for EU citizens. This project, funded by a Leverhulme Trust Major Research Fellowship from 2016-2019, assesses whether the legal concepts that currently apply in EU free movement and citizenship law are adequate to cope with the diverse problems that those who exercise free movement rights face in reality. The project also examines the connections between these concepts and the constitutional foundations of the European Union more broadly.
Other recent work looks at the justification arguments that Member States use when restricting free movement rights in order to protect national public interest concerns, and especially the growing role played by evidence and proof in that area; and at how fundamental rights are protected in the EU legal order.
Ph.D. supervision interests
Niamh welcomes enquiries from potential students interested in undertaking research degrees in any of her areas of research.
Emily Hancox 'The Inter-Relationship between Overlapping Norms in EU Law'
Books and Reports
Niamh Nic Shuibhne, Panos Koutrakos, Phil Syrpis, Exceptions from EU Free Movement Law: Derogation, Justification and Proportionality, (Hart Publishing, 2016)
Niamh Nic Shuibhne, The Coherence of EU Free Movement Law: Constitutional Responsibility and the Court of Justice, (Oxford University Press, 2013)
Abstract: At the heart of the European Union is the establishment of a European market grounded in the free movement of people, goods, services, and capital. The implementation of the free market has preoccupied European lawyers since the inception of the Union's predecessors. Throughout the Union's development, as obstacles to free movement have been challenged in the courts, the European Court of Justice has had to expand on the internal market provisions in the founding Treaties to create a body of law determining the scope and meaning of the EU protection of free movement. In doing so, the Court has often taken differing approaches across the different freedoms, leaving a body of law apparently lacking a coherent set of foundational principles.This book presents a critical analysis of the European Courts' jurisprudence on free movement, examining the Court's constitutional responsibility to articulate a coherent vision of the EU internal market. Through analysis of restrictions on free movement rights, it argues that four main drivers are distorting the system of the case law and its claims to coherence. The drivers reflect 'good' impulses (the protection of fundamental rights); avoidable habits (the proliferation of principles and conflicting lines of case law authority); inherent ambiguities (the unsettled purpose and objectives of the internal market); and broader systemic conditions (the structure of the Court and its decision-making processes). These dynamics cause problematic instances of case law fragmentation - which has substantive implications for citizens, businesses, and Member States participating in the internal market as well as reputational consequences for the Court of Justice and for the EU more generally. However, ultimately the Member States must take greater responsibility too: only they can ensure that the Court of Justice is properly structured and supported, enabling it to play its critical institutional part in the complex narrative of EU integration.Examining the judicial development of principles that define the scope of EU free movement law, this book argues that sustaining case law coherence is a vital constitutional responsibility of the Court of Justice. The idea of constitutional responsibility draws from the nature of the duties that a higher court owes to a constitutional text and to constitutional subjects. It is based on values of fairness, integrity, and imagination. A paradigm of case law coherence is less rigid, and therefore more realistic, than a benchmark of legal certainty. But it still takes seriously the Court's obligations as a high-level judicial institution bound by the rule of law. Judges can legitimately be expected - and obliged - to be aware of the public legal resource that they construct through the evolution of case law.
Niamh Nic Shuibhne, Laurence Gormley, From Single Market to Economic Union: Essays in Memory of John A Usher, (Oxford University Press, 2012)
Abstract: The path from single market to economic union is a continuing — and controversial — story; raising questions about the present and future regulation, structures, and purpose of economic union within the broader objectives of the EU legal and political order. This book focuses on the evolution and regulation of the EU as an economic union, in tribute to the scholarship of the late Professor John A Usher. The process of treaty reform within the EU has now reached fruition and attention is being re-focused on substantive aspects of EU law and policy. The chapters in the collection consider the EU internal market in its broadest sense: the fundamental free movement provisions remain at the core, but the concept of the transnational market must also accommodate competing interests to which the EU is committed but the implications of which can nonetheless distort, and thus need to be carefully balanced within, the basic free trade framework (for example, intellectual property rights and the protection of innovation, and also the implementation of social policy objectives). The book also situates the market in its broader politico-economic context. The global economic climate remains precarious and questions about optimal financial and fiscal regulation, and monetary stability, remain critically significant, especially in a transnational context given the degree of inter-dependency generated by the EU integration project.
Niamh Nic Shuibhne, Michael Dougan, Eleanor Spaventa, Empowerment and Disempowerment of the European Citizen, (Hart Publishing, 2012)
Abstract: This collection of essays engages with a central theme in scholarship on EU citizenship – the emancipation of certain citizens, the alienation of others – and seeks to expand its horizons to interrogate whether similar debates and trends can be identified in other fields of European integration. The focus of the book is distinctly citizen focused. It delivers the potential for the opening out of analysis of the implications of European citizenship beyond the parameters of Articles 18-25 TFEU and beyond the disciplinary confines of legal analysis alone. The book construes 'EU citizenship' in its broadest sense, and explores the extent to which the European citizen is, or indeed is not, genuinely at the heart of EU law and policy-making. What is the purpose and role of this transnational, regional regulator, given that citizen concerns seem focused primarily at either the infra State or global levels? Within the broader theme of empowerment and disempowerment, the contributors reflect on a range of cross-cutting themes; for example, the extent to which channels of citizen participation (can) inform EU policy-making in a 'bottom-up' sense; or whether the EU is a catalyst for the construction of new spaces and new identities.
Niamh Nic Shuibhne, Regulating the Internal Market, (Edward Elgar Publishing, 2006)
Abstract: This collection explores the management of the internal market from a legal perspective. While the EU agenda is currently dominated by the processes of Treaty reform, this assessment of both market and constitutional governance evaluates the coherence or otherwise of the project at the very core of European integration. Confronted with a free market nearing completion, with a relatively formulaic application of internal market law, the book portrays how this is mirrored in a growing tendency to hand the market 'back' to the Member States and, increasingly, to authorities and bodies (both public and private) therein. We see too, however, an internal market framework that strains to cope with a series of challenges, both internal and external to the EU itself. The approach of the contributors is two-fold - on one hand, they reflect thematically on questions of regulation which cut across the spectrum of the market and its freedoms. On the other hand, they adopt more sector-specific lenses (including, for example, regulation of the media and the Internet) through which contemporary regulatory dynamics can be reconsidered. Providing analysis of contemporary challenges facing the internal market, this book will be of great interest to academics, researchers and students working in the field of EC law. It will also strongly appeal to national and community officials and policy makers due to its 'testing' abstract questions of principle surrounding constitutional character in the market sphere.
Niamh Nic Shuibhne, EC Law and Minority Language Policy: Culture, Citizenship and Fundamental Rights, (Kluwer Academic Publishers, 2002)
Abstract: The European Community has pledged respect for the cultural and linguistic diversity of its Member States and has recognized minority languages as an inherent constituent in this regard. This development reflects a broader trend within the Community towards grappling with less obvious aspects of supranational governance. Minority language groups turn optimistically to Europe in response. But, despite rhetorical promises, just what can the EC actually be expected to do in the realm of minority language protection, a politically sensitive and traditionally domestic concern? Arguments put forward to date focus primarily on philosophical, moral, economic, and political discourse. While these considerations are a vital aspect of the debate on minority languages and on linguistic diversity more generally, the question of legal basis remains largely unanswered. This book traces comprehensively the existence of an appropriate legal basis for action undertaken by the EC in this domain, striving in particular to locate a pragmatic yet effective balance between legitimate possibility and acceptable limitations.
Niamh Nic Shuibhne, 'The social market economy and restriction of Free Movement Rights: Plus c'est la même chose?', (2018), JCMS: Journal of Common Market Studies, pp 1-16
Abstract: Case law restricting free movement rights is criticized for privileging the internal market over social rights, achieved through reductive ‘binary’ reasoning that focuses too narrowly on the ‘free movement versus social rights’ dimension of the conflict. The problem is typically discussed for the economic freedoms but is evident elsewhere in free movement law too. This point is demonstrated through the example of EU citizenship and social assistance, which establishes that protecting national public finances justifies free movement restrictions when citizens are not seen as market participants. For better integration of economic, social and constitutional objectives, judicial assessments have progressed in some respects beyond the binary conflict method, evidencing the beginnings of the more complex accommodation of multiple dimensions that a system of multilevel constitutionalism requires. However, these advances have not yet produced significantly different outcomes in practice. The legacy of binary conflict reasoning proves stubbornly resilient to change.
Niamh Nic Shuibhne, 'Reconnecting the free movement of workers and equal treatment in an unequal Europe ', (2018), European Law Review, Vol 43, pp 477-510
Abstract: This article argues that free movement rights for workers should be more consciously reconnected to the prohibition on nationality discrimination in EU law. It questions whether the principal aim of achieving the greatest possible freedom of movement detracts from the fundamental objective of equal treatment, using proposals agreed in February 2016 as part of the re-negotiation of the UK’s membership of the EU to demonstrate the risks of privileging movement in a more abstract sense over how workers who do move are actually treated. One implication of emphasising equal treatment is that disconnecting national criteria from the definition of work/worker is more difficult to defend. However, in the absence of harmonised definitions of these concepts in EU legislation, engaging the shared responsibility of the Member States can be rationalised within the wider system of free movement law and would also enable deeper reflection on whether the current framework is adequately attuned to the rapidly changing reality of work.
Niamh Nic Shuibhne, 'What I tell you three times is true: lawful residence and equal treatment after Dano ', (2016), Maastricht Journal of European and Comparative Law, Vol 23, pp 908-936
Abstract: This comment examines three recent judgments of the Court of Justice – Alimanovic, Garcia-Nieto, and Commission v. UK – that further develop the connection between lawful residence in a host state and EU equal treatment rights, a critical legal premise of the Dano judgment. It demonstrates that this line of case law blurs legal concepts and legal statuses – social assistance and social benefits, for example; also citizens looking for work, those who have worked previously but no longer do, and those who need to rely on Article 7(1)(b) of Directive 2004/38 to establish lawful residence in the host state. It aims overall to contribute to debates about quality of law; about the quality of EU citizenship and free movement law in a substantive sense; but also about how EU law is made, applied and revised.
Niamh Nic Shuibhne, 'Limits rising, duties ascending: The changing legal shape of Union citizenship', (2015), Common Market Law Review, Vol 52, pp 889-937
Abstract: This article demonstrates that there has been a generational shift towards the rising significance of conditions and limits, and a less explicit but discernible ascension of duties, in the application and interpretation of citizenship rights. Articles 20 and 21 TFEU provide for the restriction of rights by both primary and secondary law, but the extent to which this now occurs calls into question the existence, and not just the exercise, of the foundational primary rights. The article argues that there has been a hegemonic attribution of supremacy to secondary law that fails to engage the constitutional protocols epitomizing the Union legal order more generally.
Niamh Nic Shuibhne, Marsela Maci, 'Proving Public Interest: The Growing Impact of Evidence in Free Movement Case Law', (2013), Common Market Law Review, Vol 50, pp 965-1005
Abstract: When national measures restrict free movement rights, Member States can argue that their actions are,nevertheless, justifiable and proportionate. But how do they actually demonstrate this? This article explores the standard that Member States must satisfy to prove their public interest claims successfully. It will be argued that a critical information gap on what the Court of Justice expects defendant States to establish has been narrowed through a more concerted focus on proof in recent case law; but that significant issues still demand further attention. While an evolving guidance framework can be pieced together by extracting key principles from relevant - especially more recent - case law, it is questionable whether this is sufficient for national courts and lawyers. The fact that more attention is being placed on proof and evidence in recent case law, however, also raises questions about the value or even propriety of applying a veneer of empiricism over the many complexities involved in adjudicating on public interest choices. As a case study, the article discusses the difficulty of unpicking economic arguments from public interest claims. It is suggested, overall, that knowing an appropriate standard of proof has to be reached is one thing; but knowing what it is and how to reach it is something else entirely.
Niamh Nic Shuibhne, '(Some of) The Kids Are All Right: Comment on McCarthy and Dereci', (2012), Common Market Law Review, Vol 49, pp 349-80
Niamh Nic Shuibhne, 'The Resilience of EU Market Citizenship ', (2010), Common Market Law Review, Vol 47, pp 1597-628
Niamh Nic Shuibhne, 'The Constitutional Uncertainty of EU Law. Review Article of The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty by Miguel Poiares Maduro and Loïc Azoulai (eds) ', (2010), Yearbook of European Law, Vol 29, pp 496-514
Niamh Nic Shuibhne, 'Settling Dust? Reflections on the Judgments in Viking and Laval ', (2010), European Business Law Review, Vol 21, pp 683-701
Niamh Nic Shuibhne, 'Margins of Appreciation: National Values, Fundamental Rights and EC Free Movement Law', (2009), European Law Review, Vol 32, pp 230-56
Niamh Nic Shuibhne, 'Case C–76/05 Schwarz and Gootjes–Schwarz v. Finanzamt Bergisch Gladbach, Judgment of the Grand Chamber of 11 September 2007, not yet reported; Case C–318/05, Commission v.Germany, Judgment of the Grand Chamber of 11 September 2007, not yet reported; Joined Cases C–11/06 & C–12/06 Morgan v. Bezirksregierung Köln; Bucher v. Landrat des Kreises Düren Judgment of the Grand Chamber of 23 October 2007, not yet reported ', (2008), Common Market Law Review, Vol 45, pp 771-86
Niamh Nic Shuibhne, 'The Common Market at 50 ', (2008), Irish Journal of European Law, Vol 15, pp 103-26
Niamh Nic Shuibhne, 'Derogating from the Free Movement of Persons: When Can EU citizens be Deported?', (2006), Cambridge Yearbook of European Legal Studies, Vol 8, pp 187-227
Niamh Nic Shuibhne, 'Recent Developments on the Status of (Minority) Languages within the EU Framework ', (2004), European Yearbook of Minority Issues, Vol 4, pp 373-88
Niamh Nic Shuibhne, 'Case Comment on Kik v Office for Harmonisation in the Internal Market ', (2004), Common Market Law Review, Vol 41, pp 1093-1111
Abstract: The rubric of a European Union in which Member States unite in their diversities is firmly sewn into the ideology of European integration; and the composite multilingualism of the EU is an obvious badge of diversity. Both the ideology and the multilingual reality must, however, find appropriate weightings in an equation of linguistic balance - a formula comprising: 1. culture and fundamental rights, 2. efficiency and economy, 3. communication and representation, 4. differentiation, 5. diversity, 6. progress and tradition, 7. preservation and innovation, and 8. participation, citizenship, governance, and respect. But for present purposes, the questions provoked by these competing values will be concentrated on just one aspect of EU language functions - the rules that govern the EU administration. In a series of 4 cases, it was sought to establish that the EU institutions have got the balance wrong.
Niamh Nic Shuibhne, 'Legal Implications of Enlargement for the Individual: EU Citizenship and Free Movement of Persons', (2004), ERA-Forum, Vol 5, pp 355-69
Abstract: This paper is the written version of a presentation given by the author at the conference 'The Legal Implications of EU Enlargement' in Trier, 26–27 April 2004.
Niamh Nic Shuibhne, 'The Free Movement of Goods and Article 28 EC: An Evolving Framework', (2002), European Law Review, Vol 27, pp 408-25
Niamh Nic Shuibhne, 'The European Court of Justice and the Europe Agreements: Shaping a Legal Framework ', (2002), Dublin University Law Journal, Vol 23
Niamh Nic Shuibhne, Robert Lane, 'Oil and Troubled Waters ', (2002), Dublin University Law Journal, Vol 24, pp 251-67
Niamh Nic Shuibhne, 'Free Movement of Persons and the Wholly Internal Rule: Time to Move On?', (2002), Common Market Law Review, Vol 39, pp 731-771
Niamh Nic Shuibhne, 'The European Union and Minority Language Rights ', (2001), International Journal on Multicultural Societies, Vol 3, pp 61-77
Abstract: The European Community has pledged respect for the cultural and linguistic diversity of its Member States and has recognised minority languages as an inherent constituent in this regard. In turn, minority language groups turn to "Europe" in response to grapple with minority language issues when perhaps domestic response to their concerns is either not forthcoming or simply not enough. This paper submits, however, that while there is a justifiable role for EC involvement in minority language issues, this competence is necessarily limited by the function and capacity of the EC more generally.
Robert Lane, Niamh Nic Shuibhne, 'Case C-281/98, Roman Angonese v. Cassa di Risparmio di Bolzano SpA, Judgment of 6 June 2000, not yet reported ', (2000), Common Market Law Review, Vol 37, pp 1237-1247
Niamh Nic Shuibhne, P. Ó. Raigáin, 'Minority Language Rights ', (1997), Annual Review of Applied Linguistics, Vol 17, pp 11-29
Niamh Nic Shuibhne, 'State Duty and the Irish Language ', (1997), Dublin University Law Journal, Vol 19, pp 32-49
Niamh Nic Shuibhne, 'The Impact of European Law on Linguistic Diversity ', (1996), Irish Journal of European Law, Vol 5, pp 62-80
Niamh Nic Shuibhne, 'Deconstructing and reconstructing Article 7 TFEU ' in Francesca Ippolito, Maria Eugenia Bartoloni, Massimo Condinanzi (ed.) The EU and the Proliferation of Integration Principles under the Lisbon Treaty (Routledge 2018) 160-180
Niamh Nic Shuibhne, 'Integrating Union citizenship and the charter of Fundamental Rights ' in Daniel Thym (ed.) Questioning EU Citizenship (Hart Publishing 2017) 209-239
Niamh Nic Shuibhne, 'Recasting EU citizenship as federal citizenship What are the implications for the citizen when the polity bargain is privileged?' in Dimitry Kochenov (ed.) EU Citizenship and Federalism (Cambridge University Press 2017) 125-146
Niamh Nic Shuibhne, 'Fundamental rights and the framework of internal market adjudication Is the charter making a difference?' in Panos Koutrakos, Jukka Snell (ed.) Research Handbook on the Law of the EU's Internal Market (Edward Elgar Publishing 2017) 215-240
Niamh Nic Shuibhne, 'Primary laws Justifying free movement restrictions after Lisbon' in Panos Koutrakos, Niamh Nic Shuibhne, Phil Syrpis (ed.) Exceptions from EU Free Movement Law (Hart Publishing 2016) 293-314
Niamh Nic Shuibhne, 'The Court of Justice and fundamental rights If margin of appreciation is the solution, what is the problem?' in Oddný Mjöll Arnardóttir, Antoine Buyse (ed.) Shifting Centres of Gravity in Human Rights Protection (Routledge 2016) 116-143
Niamh Nic Shuibhne, 'In search of a status where does the jobseeker fit in EU free movement law?' in David Edward, Jacquelyn MacLennan, Assimakis Komninos (ed.) Ian S Forrester - A Scot Without Borders (Concurrences Review 2015) 139-151
Niamh Nic Shuibhne, 'The Developing Legal Dimensions of Union Citizenship ' in Anthony Arnull, Damian Chalmers (ed.) The Oxford Handbook of European Union Law (Oxford University Press 2015) 477-507
Niamh Nic Shuibhne, 'Exceptions to the Free Movement Rules ' in Catherine Barnard, Steve Peers (ed.) European Union Law (Oxford University Press 2014) 473-503
Jo Shaw, Niamh Nic Shuibhne, 'General Report Union Citizenship: Development, Impact and Challenges' in Ulla Neergaard, Catherine Jacqueson, Nina Holst-Christensen (ed.) Union Citizenship (DJØF Publishing 2014)
Niamh Nic Shuibhne, 'EU Citizenship after Lisbon ' in Diamond Ashiagbor, Nicola Countouris, Ioannis Lianos (ed.) The European Union after the Treaty of Lisbon (Cambridge University Press 2012) 136-55
Niamh Nic Shuibhne, 'The Third Age of EU Citizenship Directive 2004/38 in the Case Law of the Court of Justice' in Phil Syrpis (ed.) The Judiciary, The Legislature and The EU Internal Market (Cambridge University Press 2012) 331-62
Niamh Nic Shuibhne, 'Medium-Sized Language Communities and the EU Legal Framework Exploring the Challenges and Strategies for Change' in Antoni Milian i Massana (ed.) Language Law and Legal Challenges in Medium-Sized Language Communities (Barcelona Institut d'Estudis Autonòmics 2012) 121-147
Niamh Nic Shuibhne, 'The Outer Limits of EU Citizenship Displacing Economic Free Movement Rights?' in Catherine Barnard, Okeoghene Odudu (ed.) The Outer Limits of European Union Law (Hart Publishing 2009) 167-95
Niamh Nic Shuibhne, David Edward, 'Continuity and Change in the Law Relating to Services ' in Anthony Arnull, Piet Eeckhout, Takis Tridimas (ed.) Continuity and Change in EU Law (Oxford University Press 2008) 243-60
Abstract: This chapter examines the meaning of ‘services’ in the Treaty, and how the law on services fits into the more general law of the internal market. It argues that this neglected area of free movement law, particularly as regards its future development, deserves greater attention on the part of explorers.
Niamh Nic Shuibhne, 'EC Law and Minority Language Policy Some Recent Developments' in Xabier Arzoz (ed.) Respecting Linguistic Diversity in the European Union (John Benjamins 2008) 123-43
Niamh Nic Shuibhne, 'Minority Languages, Law and Politics Tracing EC Action' in Dario Castiglione, Chris Longman (ed.) The Language Question in Europe and Diverse Societies (Hart Publishing 2007) 123-46
Niamh Nic Shuibhne, 'Labels, locals, and the free movement of goods ' in Rachael Craufurd Smith (ed.) Culture and European Union Law (Oxford University Press 2004) 81-112
Abstract: In considering how localized consumer tastes have to comply with the requirements set by both regional and national production, we realize that the free movement of goods in the European Community may bring about certain issues regarding compatibility. The need to find a balance between what local consumers and producers are already familiar with and currently practise and what the market is capable of providing has long been a concern of various Community institutions. As such, the Court of Justice (ECJ) has already come up with principles to be applied within issues of internal market law. While such issues have been the subject of various debates, ‘local’ interest is grounded on consumer protection, particularly on market breadth value and proper product labeling. This chapter examines whether cultural diversity should give more attention to issues regarding the free movement of goods and consumer protection.
Niamh Nic Shuibhne, 'Article 13 EC and Non-discrimination on Grounds of Nationality Missing or in Action?' in Cathryn Costello, Eilis Barry (ed.) Equality in Diversity (The Equality Authority 2003) 269-93
Niamh Nic Shuibhne, 'European Community Law and Minority Languages ' in Donall O. Riagain (ed.) Language and Law in Northern Ireland (Cló Ollscoil na Banríona 2003) 121-37
Niamh Nic Shuibhne, 'The EU and Fundamental Rights: Well in Spirit but Considerably Rumpled in Body? ' in Convergence and Divergence in European Public Law (Hart Publishing 2002) 177-196
Niamh Nic Shuibhne, 'Rethinking Irish Language Policy A Legal Perspective' in Contemporary Issues in Irish Law and Politics (Sweet & Maxwell 2000) 36-53
Niamh Nic Shuibhne, 'Ascertaining a Linguistic Minority Ireland as a Case Study' in Deirdre Fottrell, Bill Bowring (ed.) Minority and Group Rights in the New Millennium (Martinus Nijhoff 1999) 87-110
Niamh Nic Shuibhne, 'The Constitution, the Courts and the Irish Language ' in Tim Murphy, Patrick M. Twomey (ed.) Ireland's Evolving Constitution, 1937-1997 (Hart Publishing 1998) 253-63