The European Court of Justice: shaping and reconciling a Social Europe
Traditioneel heeft het Europees Hof van Justitie een belangrijke rol gespeeld in het garanderen en bevorderen van gelijke toegang tot sociale voorzieningen van EU burgers in een andere lidstaat, inclusief studenten en economische 'inactieven'. In een recente reeks uitspraken beëindigt het Hof dit ‘activisme’ en benadrukt daarentegen de rechtszekerheid en de financiële houdbaarheid van nationale verzorgingsstelsels. De uitspraken vormen daarmee een nieuwe poging van het Hof om het Europese vrije verkeer van personen met nationaal afgebakende verzorgingsstaten te verzoenen. Gezien de obstakels tussen 28 lidstaten tot politieke overeenstemming te komen zal het Hof een cruciale rol blijven spelen in het creëren en begrenzen van solidariteit in Europa. Lees het volledige artikel hieronder.
In a broader discussion on the social dimension of the European Union we cannot avoid discussing the issue of cross border access to social benefits, or what has come to be known as ´welfare tourism´. Concerns over ‘burdens’ on national welfare systems caused by the free movement of EU citizens have been frequently voiced by Western European member states- most vehemently by the United Kingdom as part of its EU membership renegotiation.
An overt focus on these debates at the European political level would however be misleading and neglect interactions between foreign EU citizens, welfare and migration authorities and national and local courts. These interactions take place in the shadow of ‘Luxembourg’. Seated there, the European Court of Justice has not only advanced the very solidarity towards the needy EU citizen which is currently contested, but also determined the limits to this solidarity by emphasising the right of Member States to protect the sustainability of their national social assistance systems.
A Social Europe for the mobile European
Something like a Social Europe and a European social citizenship do exist. It is most directly experienced by Europeans who find out that they enjoy certain rights towards the welfare system in their host Member State. Although the EU has historically encouraged the free movement of the ‘economically active’ (the (self-)employed), by granting them and their family members certain social rights, it was only since the introduction of Union citizenship with the Treaty of Maastricht that the European Court of Justice could push for a more general right to equal access to social benefits for all mobile EU citizens, including students and the economically inactive.
After a series of activist judgments of the European Court of Justice and just before the accession of the Central and Eastern European countries in 2004, the rights of EU citizens were codified and expanded in the Citizens’ Directive (2004/38). Its provision can be briefly summarised as follow:
- Workers (and self-employed) enjoy equal treatment with respect to social benefits. If they become unemployed after having worked for more than a year they can retain their status as worker and, hence, their lawful residence.
- EU citizens (other than workers) can be excluded from social assistance during their first three months of residence.
- If economically inactive citizens, including students, want to stay longer than three months in another Member State they need to possess sufficient resources not to become a burden on the social assistance system of the host Member State and a comprehensive sickness insurance. They enjoy equal treatment with respect to social benefits, but when they become an unreasonable burden on the social assistance system their right to residence may be terminated.
- EU citizens who have resided lawfully in the host member State for more than five years earn permanent residence. Claims to social assistance can have no consequences any more for their residence status.
Policy-making in the shadow of Luxembourg
The Court has thus played a crucial role in giving body to a European social citizenship. Most crucially, since its 2001 path-breaking Grzelczyk judgment, the Court has emphasized that a claim to social assistance may never automatically lead to the loss of residence; individual factors should play a decisive role in deciding whether such a claim is ‘unreasonable’. In Brey, the Court even considered that national authorities could not terminate the residence of a pensioner who applied for a supplementary benefit already in his first month of residence; Austria should have carried out ‘an overall assessment of the specific burden which granting that benefit would place on the national social assistance system as a whole’.
Questions about the definition of a ‘workseeker’, what constitutes an ‘unreasonable burden’, or what are ‘sufficient resources’ have troubled national policy-makers and front-desk bureaucrats alike when applying the ‘rules’. Of course, this openness of EU offers ‘wiggling room’ for Member States to be exploited politically, but the uncertainty arising from it also forms a constant threat of litigation by highly interested EU citizens. Such conflicts are resolved before national courts and, at a final stage, before the European Court of Justice. As a result, new national measures in the field of social benefits have to stand the test of EU law and are thus designed ‘with Luxembourg in mind’.
The Court’s Turn: the ‘end of a European social citizenship’?
It is only recently that we can clearly observe an end to the Court’s activism in extending social entitlements to mobile EU citizens. Starting with the much-noted Dano case of November 2014, the Court found that Germany was right in refusing social benefits to an EU citizen who had never worked, was neither seeking work and did not have sufficient resources to claim a right of residence. In the case of Alimanovic, the Court watered down its requirement for an extensive individual assessment in the case of EU citizens who had worked only eleven months in their host country. This line of jurisprudence was confirmed in the most recent Garcia-Nieto judgment, in which the Court confirmed that Member States may refuse EU citizens other than workers any social assistance during the first three months of residence in order to maintain the ‘financial equilibrium of the social assistance systems of the Member States’.
The Court: Shaper and Arbiter of European Solidarity
One might consider the Court as a strategic actor which is sensitive to the interests of the Member States. From this perspective, the Court intervened at the right time with clear language to demonstrate that EU law does not allow for an unrestricted form of ‘social tourism’, effectively cutting the ground from under Cameron’s feet. From a more practical, legal point of view these judgements can best be understood as a push for legal certainty and transparency in the contested field of EU citizens’ welfare rights by the Court, thereby ‘fine-tuning’ its earlier jurisprudence after a period of judicial activism.
The role of the Court should then be seen as facilitating the coexistence of the institutions of European freedom of movement and national welfare systems. Given the severe obstacles to renegotiate the existing body of EU law between 28 Member States, this reconciliation shall remain contested but driven by the interaction between EU citizens and the Member States in which the European Court of Justice plays a crucial role.
Dion Kramer is PhD Candidate at the Vrije Universiteit of Amsterdam