To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
The Spatial Restructuring of National Welfare States within the European
Union: the Contribution of Union Citizenship and the Relevance of the Treaty of
Lisbon
Michael Dougan*
1.
Introduction
This paper explores the contribution of Union citizenship to the emergence of a
“European welfare space”, characterised by the continued pre-eminence of national
systems of social solidarity, but complemented by novel subnational and
supranational dimensions to individual welfare rights and expectations (section 2). In
particular, we shall explore the caselaw of the Court of Justice on the residency, equal
treatment and movement rights of migrant Union citizens vis-à-vis their host and
home states, highlighting the two main bodies of academic criticism prompted by that
caselaw (section 3). First, the allegation of social engineering, i.e. that Community
law is interfering in a top-down fashion with complex national welfare processes, so
as to promote an understanding of social solidarity at odds with the traditional
relationship between individual rights and collective interests. Secondly, the
allegation of judicial activism, i.e. that the welfare rights and obligations associated
with Union citizenship have been forged by the Court of Justice, despite the limited
regulatory competences conferred upon the Community by the Treaty, and sometimes
even in the face of the legislative choices expressed by the Union’s accountable
political institutions. Although the Treaty of Lisbon 2007 itself appears to have little
formal impact on this debate,1 it is arguable that the broader post-Laeken
constitutional reform process (including the negative referenda in France, the
Netherlands and Ireland) exposes the fragility of the normative basis upon which this
controversial judicial experiment has been constructed, thereby raising difficult
questions for the future direction of the Court’s caselaw (section 4).
2.
The Restructuring of Welfare State Spaces within the European Union
2.1.
Global restructuring
reterritorialisation
and
processes
of
deterritorialisation
and
In his work on New State Spaces, Neil Brenner highlights the fact that, for much of
the 20th century, social science scholarship was able to assume the nation state to be
the normal geographical container for the operation and understanding of social,
economic, political and cultural relations.2 With time, however, analysts came to
understand that such a state-centric model of territorialisation could not be taken as a
natural given. In fact, the emergence of globalisation (or global restructuring) means
that previous assumptions about enclosing social etc relations within such a bounded
* Professor of European Law, and Jean Monnet Chair in EU Law, Liverpool Law School, University of
Liverpool. I am very grateful to participants at the Copenhagen conference in August 2008, and the
UACES conference in Edinburgh in September 2008, for their comments and discussion. I am also
indebted to Samantha Currie, Charlotte O’Brien and Eleanor Spaventa for their helpful suggestions.
1
[2007] OJ C306 and [2008] OJ C115.
2
N Brenner, New State Spaces: Urban Governance and the Rescaling of Statehood (OUP, Oxford,
2004) pp 28-29.
1
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
geographical space must now be viewed as deeply problematic.3 Nevertheless, the
task of identifying new and alternative modes of spatial analysis has proven difficult.
In particular, contemporary processes of global restructuring have entailed neither the
absolute reconstitution of previously diverse societies onto a new global scale; nor
their complete disintegration into a “distanceless, placeless, or borderless space of
flows”.4 Rather, globalisation might be understood as having prompted a process of
deterritorialisation and reterritorialisation.
On the one hand, deterritorialisation refers to the circumvention and
dismantling of historically entrenched scalar hierarchies, whereby familiar nationally
defined configurations of social etc organisation are unsettled and rearticulated.5 On
the other hand, such deterritorialisation is closely intertwined with a phenomenon of
reterritorialisation, through which new subnational and supranational socio-spatial
configurations are being constructed, though without entailing the outright denial of
the nation state’s continued relevance as a major locus of social etc organisation.6
The national territorial state – albeit significantly rescaled – therefore serves as the
crucial geographical infrastructure for an ongoing dialectic: mutually constitutive, if
highly conflictual, processes of deterritorialisation and reterritorialisation succeed in
reshuffling entrenched hierarchies of scalar organisation; social etc spaces are
continually produced, reconfigured and transformed; qualitatively new geographies of
state regulation emerge – albeit through a process which is highly variegated and
path-dependent, according to a host of context-specific institutions, actors and
influences.7
Brenner’s vision of the interface between historically inherited and newly
emergent state spaces, as a focal point for understanding the restructuring of social,
economic, political and cultural geographies in contemporary capitalist societies,8 will
no doubt ring many familiar bells with scholars of European integration.9 In
particular, that vision tallies well with the recent experience of the European welfare
systems.10 It seems fair to observe that the inherited space of the national welfare
states is indeed undergoing a dialectic process of deterritorialisation and
reterritorialisation: on the one hand, certain historically entrenched assumptions
associated with the post-war national welfare systems have increasingly become
challenged and unsettled; on the other hand, there is greater recognition of the
emergence of local and regional, as well as international and supranational,
dimensions to the conception, construction, organisation and delivery of welfare
goods and services. We shall explore this idea further, with reference to the
relationship between the state space of the national welfare systems and the influence
of EU membership, particularly since the introduction of Union citizenship and its
transformation in the hands of the Court of Justice.11
3
Ibid, p 29.
Ibid, p 64.
5
Ibid, p 57.
6
Ibid, p 57.
7
Ibid, pp 64-67.
8
Ibid, Ch 3, especially at p 112.
9
Indeed, consider the essays in M Berezin and M Schain (eds), Europe Without Borders: Remapping
Territory, Citizenship and Identity in a Transnational Age (John Hopkins University Press, Baltimore,
2003).
10
On which, see further M Ferrera, The Boundaries of Welfare: European Integration and the New
Spatial Politics of Social Protection (OUP, Oxford, 2005).
11
For a broader perspective on the potential for a mutually transformative interaction between national
and Union citizenships, see D Kostakopoulou, “European Union Citizenship: Writing the Future”
4
2
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
2.2.
Challenges to national welfare states and the “constitutional asymmetry”
of EU welfare policies
There seems widespread agreement that the European welfare states, for all their
distinctive national characteristics, face certain common challenges, especially
concerning the viability of traditional values such as the principle of universal
coverage and the provision of relatively generous levels of support.12 The greatest
pressure appears to emanate from internal factors: for example, social changes in
fields such as labour market participation, population aging, divorce rates and single
parent families; the recognition of a broader range of social risks and the costs of new
medical treatments; a more widespread faith among political elites and the population
at large in the supposed ability of market forces to play a constructive role in public
services.13 Even if important structural differences remain, the flavour of reform in
many countries is now familiar: promoting work rather than protecting labour;
selective targeting of support rather than universal entitlement; emphasis on the social
obligations of citizens rather than the social right to welfare; and expanding use of the
private sector rather than purely public administration for the delivery of welfare
services.14
Many scholars tend to ascribe to external factors – such as the (real or
perceived) economic and budgetary pressures posed by greater global competition – a
primarily aggravating role in this essentially internal process of welfare state reform
(or at least one which remains mediated through and thus reshaped by domestic
institutions and actors).15 However, the (quasi-exogenous) demands arising from
membership of the European Union are acknowledged to exercise a much greater (or
at least more tangible) influence upon national welfare policies.16 That influence
derives, in particular, from the constraints imposed by economic integration within
(2007) 13 ELJ 623. Consider, in particular, the discourse on “nested memberships”, e.g. T Faist,
“Social Citizenship in the European Union: Nested Membership” (2001) 39 JCMS 37. For detailed
studies in other contexts, e.g. O Golynker, Ubitquitous Citizens of Europe: The Pardigm of Partial
Migration (Intersentia, Antwerp, 2006); J Shaw, The Transformation of Union Citizenship: Electoral
Rights and the Restructuring of Political Space (CUP, Cambridge, 2007).
12
As observed by M Ferrera and M Rhodes (eds), Recasting European Welfare States (Frank Cass,
London, 2000) at p 1.
13
See further, e.g. M Roche and R van Berkel (eds), European Citizenship and Social Exclusion
(Ashgate, Aldershot, 1997); D Hine and H Kassim (eds), Beyond the Market: the EU and National
Social Policy (Routledge, London, 1998); M Ferrera and M Rhodes (eds), Recasting European Welfare
States (Frank Cass Publishers, London, 2000); S Kuhnle (ed), Survival of the European Welfare State
(Routledge, London, 2000); J van Vugt and J Peet (eds), Social Security and Solidarity in the European
Union (Physica-Verlag, Heidelberg, 2000); P Pierson (ed), The New Politics of the Welfare State
(OUP, 2001); M Kleinman, A European Welfare State? (Palgrave, Basingstoke, 2002).
14
To borrow from the phrasing used by N Gilbert, “The Modern Welfare State: The Changing Context
of Social Protection” (written version of paper presented at The Social Contract in the Modern Welfare
Sate: Historical and Theoretical Perspectives (University of Oxford) 18-20 April 2007).
15
See further, e.g. F Ross, “Interests and Choice in the ‘Not Quite So New’ Politics of Welfare in M
Ferrera and M Rhodes (eds), Recasting European Welfare States (Frank Cass, London, 2000); P
Pierson (ed), The New Politics of the Welfare State (OUP, 2001) especially Chs 1-3; M Kleinman, A
European Welfare State? (Palgrave, Basingstoke, 2002) especially Ch 3.
16
E.g. M Ferrera and M Rhodes (eds), Recasting European Welfare States (Frank Cass, London, 2000)
at p 2; S Kuhnle (ed), Survival of the European Welfare State (Routledge, London, 2000) at pp 12-14.
For analysis, see further the various contributions in M Dougan and E Spaventa (eds), Social Welfare
and EU Law (Hart Publishing, Oxford, 2005) and G de Búrca (ed), EU Law and the Welfare State
(OUP, Oxford, 2005).
3
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
the Single Market: whether direct, through the application of free movement and
competition rules to specific domestic choices about the organisation and delivery of
welfare goods and services;17 or indirect, such as the widespread assumption that
more intense competition to retain and attract mobile undertakings or capital within
the Single Market, or to stimulate economic performance by national economic
operators obliged to compete with foreign rivals, induces Member States to reduce the
labour costs and / or overall tax burdens implied by their existing levels of welfare
support;18 coupled with the risk that the budgetary constraints imposed by
participation in economic and monetary union may produce a negative impact upon
the financing of national social protection systems.19
All of that provides the basis for the well-known critique of the EU’s alleged
“constitutional asymmetry”: the pressures on national social choices exerted by
European economic integration are not matched by the availability at Union level of
countervailing resources for the purposes of protecting and promoting social rights in
general, or welfare provision in particular.20 Save for relatively marginal activities
such as the CAP and the Structural Funds, the EU is generally characterised by the
performance of extremely limited direct redistributive functions, the exercise of rather
weak regulatory powers in the field of welfare (as compared to other areas of social
policy such as labour law) that might instead seek to compel domestic resources to be
employed along particular redistributive pathways, and a default tendency to rely on
soft law instruments, such as the open method of coordination within the context of
the Lisbon Strategy, to achieve many of the Union’s welfare policy objectives.21 Of
course, the Union’s restricted welfare competences may be interpreted as a natural
reflection of its impoverished legitimacy – among Member State political elites and
the general population alike – to assume any more far-reaching independent social
mandate.22 Indeed, it has been argued that, when it comes to the Union’s social and
welfare policy objectives, more actually means less.23 Nevertheless, the accusation of
“constitutional asymmetry” has stuck and seems to cut deeply into the psyche of
See further, e.g. T Hervey, ‘Social Solidarity: A Buttress Against Internal Market Law?’ in J Shaw
(ed), Social Law and Policy in an Evolving European Union (Hart Publishing, Oxford, 2000). That is
true especially in the context of the healthcare caselaw: see further, e.g. V Hatzopoulos, “Killing
National Health and Insurance Systems but Healing Patients? The European Market for Health care
Services After the Judgmnets of the ECJ in Vanbraekel and Peerbooms” (2002) 39 CMLRev 683 and
(more recently) “Health Law and Policy: The Impact of the EU” in G de Búrca (ed), EU Law and the
Welfare State (OUP, Oxford, 2005).
18
See further, e.g. L Delsen, N van Gestel and J van Vugt, ‘European Integration: Current Problems
and Future Scenarios’ in J van Vugt and J Peet (eds), Social Security and Solidarity in the European
Union (Physica-Verlag, 2000).
19
See further, e.g. M Panić, “The Euro and the Welfare State” in M Dougan and E Spaventa (eds),
Social Welfare and EU Law (Hart Publishing, Oxford, 2005).
20
E.g. B Schulte, ‘The Welfare State and European Integration’ (1999) 1 EJSS 7; F Scharpf, ‘The
European Social Model: Coping With the Challenges of Diversity’ (2002) 40 JCMS 645.
21
As regards which, see further, e.g. N Bernard, “Between a Rock and a Soft Place: Internal Market
versus Open Coordination in EU Social Welfare Law” in M Dougan and E Spaventa (eds), Social
Welfare and EU Law (Hart Publishing, Oxford, 2005); J Zeitlin, “Social Europe and Experimentalist
Governance: Towards a New Constitutional Compromise” in G de Búrca (ed), EU Law and the
Welfare State (OUP, Oxford, 2005).
22
See further, e.g. G Majone, Dilemmas of European Integration: The Ambiguities and Pitfalls of
Integration by Stealth (OUP, Oxford, 2005).
23
As observed by W Lamping during a presentation on “The Limits and Opportunities of
Institutionalising European Social Solidarity” at the conference Seeking Solidarity in the European
Union: Towards Social Citizenship and a European Welfare State? (University of Sussex, 7 May
2008).
17
4
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
many of the Union’s supporters and detractors alike: in theory, the national welfare
states remain pre-eminent; in practice, that pre-eminence tends to be undermined
rather than supported by the Union.
2.3.
Union citizenship and domestic welfare boundaries based on nationality
and territoriality
The introduction of Union citizenship was seen by many commentators as an
opportunity partially to redress that balance,24 and ultimately, to provide an important
new source of affiliation to and legitimacy for the process of European integration.25
Even in the absence of extensive redistributive or harmonising competences in the
sphere of welfare provision, the evolution of a workable “European social citizenship”
could still be realised through action to promote more universal rights to free
movement across the Union territory for all Community nationals, and the creation of
novel expectations of social solidarity based upon the shared identity of Union
citizenship, going beyond the traditional restriction of mobility and equal treatment
rights under Community law to persons deemed economically active in an employed
or self-employed capacity. Such a “European social citizenship” would obviously be
much more modest in its ambitions than any ordinary “national social citizenship” –
not least in that its benefits would be reserved primarily to that relatively small
proportion of the population who do in fact exercise rights to free movement in
another Member State – but it would at least be attainable within the existing
constitutional constraints and limited competences available to the Union.26
It is apparent that the benefits even of any such modest “European social
citizenship” – more extensive and more secure rights, both as regards residency and to
social support, for economically inactive persons previously excluded from the full
protection of Community law – are to be discharged vicariously by the Member States
themselves. The line between creating new models of social solidarity derived from
Community law, and recasting old forms of social solidarity as they exist under
national law, is a fine one.27 Indeed, that prospect raises a fresh set of challenges for
24
For early analyses of Union citizenship after its introduction by the Maastricht Treaty, e.g. C Closa,
“The Concept of Citizenship in the Treaty on European Union” (1992) 29 CMLRev 1137; R Kovar and
D Simon, “La Citoyenneté Européenne” [1993] Cahiers de Droit Européen 285; D O’Keeffe, “Union
Citizenship” in D O’Keeffe and P Twomey, (eds) Legal Issues of the Maastricht Treaty (Wiley,
Chichester, 1994); H U J d’Oliveira, “European Citizenship: Its Meaning, Its Potential” in R Dehousse
(ed), Europe After Maastricht: An Ever Closer Union? (Law Books in Europe, Munich, 1994); S Hall,
Nationality, Migration Rights and Citizenship of the Union (Martinus Nijhoff, Dordrecht, 1995); S
O’Leary, The Evolving Concept of Community Citizenship: From the Free Movement of Persons to
Union Citizenship (Kluwer Law, The Hague, 1996).
25
See further, e.g. M Everson, “The Legacy of the Market Citizen” in J Shaw and G More (eds), New
Legal Dynamics of European Union (Clarendon, Oxford, 1995); U Preuß, “Problems of a Concept of
European Citizenship” (1995) 1 ELJ 267; A Wiener and V and della Sala, “Constitution-Making and
Citizenship Practice: Bridging the Democracy Gap in the EU?” (1997) 35 JCMS 595; J Shaw, “The
Interpretation of European Union Citizenship” (1998) 61 MLR 293; M P Maduro, “Europe’s Social
Self: The ‘Sickness Unto Death’” in J Shaw (ed), Social Law and Policy in an Evolving European
Union (Hart Publishing, Oxford, 2000).
26
Not that reverse discrimination against static Union citizens escapes serious criticism: consider, e.g.
N Nic Shuibhne, “Free Movement of Persons and the Wholly Internal Rule: Time to Move on?” (2002)
39 CMLRev 731; E Spaventa, “Seeing the Wood Despite the Trees? On the Scope of Union
Citizenship and Its Constitutional Effects” (2008) 45 CMLRev 13.
27
As observed by A Schrauwen in a presentation on “The Future of EU Citizenship: Corrosion of
National Citizenship?” at the conference After the First 50 Years: The Future of European Law and
Policy (University of Birmingham, 3-4 July 2008).
5
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
the national welfare systems or, to put it differently, another dimension to the dialectic
process of deterritorialisation and reterritorialisation acting upon our inherited state
welfare spaces. After all, two of the strongest spatial characteristics displayed by
national welfare states in their formative post-war period were nationality and
territoriality; those twin criteria have traditionally served, in principle, to distinguish
eligible members of the domestic welfare community from outsiders excluded from
its protection and benefits.28
The limitation of certain (particularly non-contributory) social rights to own
nationals reflects the close interrelationship between the welfare state and the nation
state: the community of interests derived from shared national identity provides much
of the moral force required to justify the redistribution of wealth through social
security and other welfare benefits; conversely, the community of interests derived
from the shared assumption of responsibility for individual social well-being helps
build and reinforce a shared national identity. That same sense of community
underlies the traditional restriction of certain social rights to those resident within the
domestic territory: citizens who chose to go abroad, and no longer share in the
national community – or for that matter, pay taxes to the national exchequer, or
submit themselves to supervision by the national authorities – forfeit the expectation
of welfare support from their country of origin.29 As Halfmann has observed, “the
concepts of equality and solidarity associated with the modern welfare state cannot be
understood without the original restriction of welfare state policies to the members of
the nation…. welfare policies are meant to impose a territorial criterion on the
politics of inclusion in the political system [including] the attempts of the nation state
to restrict the welfare state benefits to its citizens or to demand the consumption of the
benefits on the state territory”.30
While the centre of gravity for comprehending welfare relations in
contemporary Europe undoubtedly remains anchored (legally, politically and
financially) at the domestic level, internally and externally driven processes of
restructuring mean that nationality and territoriality can no longer claim an absolute
monopoly in defining membership of and exclusion from the domestic solidaristic
communities: the dialectic of deterritorialisation and reterritorialisation has surely
already led to greater recognition for more diverse (subnational and supranational)
dimensions to social and welfare provision.31 That is true not least as regards
See further, e.g. G Vonk, “Migration, Social Security and the Law: Some European Dilemmas”
[2002] European Journal of Social Security 315; M Dougan and E Spaventa, “Wish You Weren’t
Here… New Models of Social Solidarity in the European Union” in M Dougan and E Spaventa (eds),
Social Welfare and EU Law (Hart Publishing, Oxford, 2005); M Ferrera, “Towards an ‘Open’ Social
Citizenship? The New Boundaries of Welfare in the European Union” in G de Búrca (ed), EU Law
and the Welfare State (OUP, Oxford, 2005); D S Martinsen, “The Europeanisation of Welfare: The
Domestic Impact of Intra-European Social Security” (2005) 43 JCMS 1027; H Verschueren, “European
(Internal) Migration as an Instrument for Defining the Boundaries of National Solidarity Systems”
(2007) 9 European Journal of Migration and Law 307.
29
See further, e.g. M Dougan, “Expanding the Frontiers of Union Citizenship by Dismantling the
Territorial Boundaries of the National Welfare States?” in C Barnard and O Odudu (eds), The Outer
Limits of EU Law (Hart Publishing, Oxford, forthcoming).
30
J Halfmann, “Welfare State and Territory” in M Bommes and A Geddes (eds), Immigration and
Welfare: Challenging the Borders of the Welfare State (Routledge, London, 2000) at p 41.
31
Consider, for example, the increasingly divergent paths trodden by the discrete English, Scottish,
Welsh and Northern Irish segments of the NHS within the UK. Consider also the relatively generous
approaches of many Member States towards the access by immigrants to welfare provision: see further,
e.g. V Guiraudon, “The Marshallian Triptych Reordered: The Role of Courts and Bureaucracies in
28
6
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
economic integration within the context of the Single Market: as hinted at above,
Community law has long insisted that an economic contribution by foreign migrants
to the host society must be recognised, in principle, as a valid ticket for entry into the
national solidaristic community;32 similarly, the Community’s rules on the crossborder coordination of national social security systems, currently contained in
Regulation 1408/7133 but shortly to be replaced for most purposes by Regulation
883/2004,34 have long sought to detach the payment of certain benefits from a purely
territorial basis.35 Nevertheless, the prospect of a “European social citizenship” –
premised upon greatly expanded rights to free movement, residency and equal
treatment for all Community nationals, regardless of their economic status or
contribution – would directly and significantly challenge the traditional links between
an individual’s legitimate right to claim welfare support and her / his membership of
each Member State’s solidaristic community, either according to historically accepted
ties of belonging based upon nationality and residency, or on the basis of wellestablished Community principles relating to the facilitation of economic mobility.36
The remainder of this paper will explore the interface between the inherited
spaces of Member State welfare systems based on the historic criteria of nationality
and territoriality; and the emergent spaces of supranational identity suggested by the
construction of new welfare rights and obligations for Union citizens under
Community law. We shall see that EU membership and the impact of Union
citizenship both contributes to the partial dismantling of the welfare state’s entrenched
spatial identity and simultaneously seeks to offer new dimensions in its more complex
reconstruction (section 3.1). However, this interaction between the EU and its
Member States in reframing the spatial identity of welfare provision in the light of
Union citizenship deserves to be interrogated critically in the light of its specific
institutional and policy contexts. In the first place, there are questions about the
impact of Community law on social solidarity: what benefits Community law brings
to individuals, and what challenges this might pose for the national welfare states
(section 3.2). In the second place, there are questions about the constitutional
Furthering Migrants’ Social Rights” in M Bommes and A Geddes (eds), Immigration and Welfare:
Challenging the Borders of the Welfare State (Routledge, London, 2000).
32
As regards resident migrant workers, any effective and genuine economic activity entitles the
claimant to seek equal treatment in the field of social benefits: see, e.g. Case 249/83 Hoeckx [1985]
ECR 973; Case C-237/94 O’Flynn [1996] ECR I-2617; cp. Case 53/81 Levin [1982] ECR 1035; Case
139/85 Kempf [1986] ECR 1741. However, as regards non-resident frontier workers, the Court seems
to accept that the host state may require the claimant to demonstrate a sufficiently substantial economic
activity within its territory, before granting access to certain social benefits: see Case C-213/05 Geven
[2007] ECR I-6347; Case C-212/05 Hartmann [2007] ECR I-6303. On that point, see further, e.g. C
O’Brien, Annotation of Geven, Hartmann and Hendrix (2008) 45 CMLRev 499; S Currie, “The
Transformation of Union Citizenship” in M Dougan and S Currie (eds), 50 Years of the European
Treaties: Looking Back and Thinking Forward (Hart Publishing, Oxford, forthcoming).
33
Last consolidated text published at [1997] OJ L28/1.
34
[2004] OJ L200/1.
35
See further, e.g. R Cornelissen, “The Principle of Territoriality and the Community Regulations on
Social Security” (1996) 33 CMLRev 439; F Pennings, Introduction to European Social Security Law
(Kluwer Law International, 2001); D S Martinsen, “Social Security Regulation in the EU: The DeTerritorialisation of Welfare?” in G de Búrca (ed), EU Law and the Welfare State (OUP, Oxford,
2005); V Paskalia, Free Movement, Social Security and Gender in the EU (Hart Publishing, 2007).
36
For present purposes, we are not concerned with the issues raised by the immigration of third country
nationals for welfare policies and solidarity concepts based on traditional nationality criteria: see
further, e.g. M Bommes and A Geddes (eds), Immigration and Welfare: Challenging the Borders of the
Welfare State (Routledge, London, 2000); C-U Schierup, P Hansen and S Castles, Migration,
Citizenship and the European Welfare State (OUP, Oxford, 2006).
7
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
implications of the recent transformation of Union citizenship for Community law
itself: how that transformation affects the distribution of competences between the
Union and the Member States, and the separation of powers between the ECJ and the
Community legislature (section 3.3).
3.
A Critical Assessment of the Welfare Rights Associated with Union
Citizenship
3.1.
Summary of the current legal framework
At the risk of neglecting its myriad nuances, the current legal framework governing
the welfare rights associated with Union citizenship – derived from the primary
Treaty provisions, secondary measures adopted by the Community legislature, and of
course, the extensive interpretative caselaw of the ECJ – may be summarised as
follows.37
As regards relations between an economically inactive migrant and his / her
host state, the inevitable compromise between (on the one hand) the desire to offer
meaningful benefits to Union citizens regardless of their economic or financial status
and (on the other hand) the need to respect the Member State’s limited willingness
and ability to pay for the upkeep of foreign nationals who might otherwise present an
unreasonable burden upon its public finances, has gradually manifested itself in the
task of identifying a “real link” between migrant and host society.38 The closer the
bond between the individual claimant and the Member State, the more secure will be
the claimant’s right to reside within the territory, free from the fear of expulsion on
economic or financial grounds;39 and the more extensive his / her right to equal
treatment within the host society, as regards welfare and other social benefits.40
Union citizenship, combined with a tangible shared experience between the individual
37
For more expansive analyses, see further, e.g. A P van der Mei, Free Movement of Persons within
the European Community: Cross-Border Access to Public Benefits (Hart Publishing, Oxford, 2003); E
Spaventa, Free Movement of Persons in the European Union (Kluwer Law International, The Hague,
2007).
38
The concept was first employed by the ECJ in Case C-224/98 D’Hoop [2002] ECR I-6191. Its
potential relevance is not restricted to migrant welfare rights, or even Union citizenship: consider, e.g.
the rulings in Case C-145/04 Spain v United Kingdom [2006] ECR I-7917 on voting rights to the
European Parliament for certain TCNs and Case C-66/08 Kozłowski (Judgment of 17 July 2008) on
grounds for non-execution of a European arrest warrant.
39
E.g. Case C-184/99 Grzelczyk [2001] ECR I-6193; Case C-413/99 Baumbast [2002] ECR I-7091;
Case C-456/02 Trojani [2004] ECR I-7573. Now, contrast (at one extreme) the right to three months
residency with (at the other extreme) the right to permanent residency contained in Directive 2004/38
[2004] OJ L158/77. Note that the “real link” concept is irrelevant in the case of national rules
restricting residency based on an excessively restrictive interpretation of the applicable Community
secondary legislation and where there is no question of claims against the public finances: consider,
e.g. Case C-200/02 Zhu and Chen [2004] ECR I-9925; Case C-408/03 Commission v Belgium [2006]
ECR I-2647; Case C-398/06 Commission v Netherlands (Judgment of 10 April 2008).
40
E.g. Case C-85/96 María Martínez Sala [1998] ECR I-2691; Case C-184/99 Grzelczyk [2001] ECR
I-6193; Case C-224/98 D’Hoop [2002] ECR I-6191; Case C-138/02 Collins [2004] ECR I-2703; Case
C-209/03 Bidar [2005] ECR I-2119; Case C-258/04 Ioannidis [2005] ECR I-8275. Indeed, the Court
considered that only migrants already either in possession of a residence permit, or able to demonstrate
a certain period of residence, could be considered in a comparable position to established residents and
thus entitled to equal treatment within the host state at all: see, e.g. Case C-456/02 Trojani [2004] ECR
I-7573 (and the discussion by M Dougan and E Spaventa, “Wish You Weren’t Here… New Models of
Social Solidarity in the European Union” in M Dougan and E Spaventa (eds), Social Welfare and EU
Law (Hart Publishing, Oxford, 2005). Again, consider now the ‘sliding scale’ of equal treatment
contained in Directive 2004/38 [2004] OJ L158/77.
8
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
and his / her host society, has therefore become a legitimate gateway into membership
of the domestic welfare community.
As regards relations between a migrant Union citizen and his / her home state,
a similar approach has emerged in parallel in the caselaw.41 The tension between (on
the one hand) the desire not to hinder the movement of Union citizens who may be
dependent upon some form of public support and (on the other hand) the political,
financial and practical constraints that favour respect for the territorially bounded
nature of (particularly non-contributory) welfare provision has also been resolved
through resort to a “real link” principle.42 In this context, the Court seems sensitive to
whether the relevant benefit is funded by the claimant’s own contributions or instead
through general taxation, and the degree to which it may be linked to the specific
economic and social environment of the competent Member State: the stronger the
relationship between a given welfare benefit and the domestic system of social
solidarity, the weaker the force of the argument for severing the cord connecting
payment of benefits to residence within the national territory.43 In addition, however,
the Court will examine the degree to which the individual claimant may assert
membership of his / her home state’s welfare community, even after having left the
national territory, on the basis of past or present links other than continuing residence
alone, which are nevertheless sufficient to warrant a right of access to the relevant
benefits.44
Of course, the legal principles governing relations between a migrant citizen
and his / her host state (on the one hand) and home state (on the other hand) should be
seen not as discrete and mutually exclusive, but rather as cumulative and interactive.
In particular, it is arguable that the Court is actively seeking to make two discrete
legal tools – the barriers to movement principle as a means of challenging the
territorial limitations of the home state, and the right to equal treatment as a means of
overcoming the nationality limitations of the host state – work together to enhance the
practical value of Union citizenship for a broader category of its potential
beneficiaries than either of those legal tools could hope to achieve on its own:
obliging the home state to provide welfare support in respect of its own migrant
nationals helps such individuals to move closer to the point at which they can instead
claim to be assimilated into the welfare system of the host state; the gradual
weakening of one “real link” morphs into the gradual strengthening of another “real
link” so as to help ensure for the Union citizen a smoother transition between welfare
states and better continuity of social support.45
41
Either in tandem with (as in Cases C-502/01 and C-31/02 Gaumain-Cerri [2004] ECR I-6483) or
even in contradiction to (in rulings such as Case C-287/05 Hendrix [2007] ECR I-6909) the
coordination rules contained in Regulation 1408/71 and Regulation 883/2004: see further below.
42
See further, e.g. M Dougan, “Expanding the Frontiers of Union Citizenship by Dismantling the
Territorial Boundaries of the National Welfare States?” in C Barnard and O Odudu (eds), The Outer
Limits of EU Law (Hart Publishing, Oxford, forthcoming).
43
Consider, e.g. Case 313/86 Lenoir [1988] ECR 5391; Case C-43/99 Leclere [2001] ECR I-4265;
Cases C-396/05, C-419/05 and C-450/05 Habelt (Judgment of 18 December 2007); Case C-228/07
Petersen (Judgment of 11 September 2008). Cp. rulings where the Court has found that contributory
benefits were wrongly categorised as special non-contributory [cash] benefits and thereby improperly
excluded from the possibility of exportation under Regulation 1408/71, e.g. Case C-215/99 Jauch
[2001] ECR I-1901.
44
Consider, e.g. Case C-192/05 Tas-Hagen [2006] ECR I-10451; Case C-287/05 Hendrix [2007] ECR
I-6909; Cases C-11-12/06 Morgan and Bucher [2007] ECR I-9161; Case C-499/06 Nerkowska
(Judgment of 22 May 2008).
45
An argument made primarily in the field of cross-border educational mobility: see, e.g. A-P van der
Mei, “EU Law and Education: Promotion of Student Mobility versus Protection of Education Systems”
9
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
In any case, two further important principles, originally established by the
Court in Grzelczyk and Baumbast,46 but increasingly applicable to all questions of
residency, equal treatment and non-discriminatory barriers to movement, are essential
to understanding the welfare relationship between migrants and their host / home
states as constructed under Community law. First, Community secondary legislation
which itself purports to restrict the migrant’s opportunities for free movement is
nevertheless amenable to a form of “indirect judicial review” intended to guarantee
that it does not unduly prejudice the existence or exercise of the Union citizen’s
rights, i.e. whereby Member States are obliged to apply Community legislation which
appears to limit the rights of Union citizens in accordance with the general principles
of Community law, especially the principle of proportionality, so that the relevant
Community rules may not be enforced against an individual where that would exceed
what it necessary to protect the Member State’s legitimate interests.47 Secondly, even
where it is legitimate in principle for the Member State (whether host or home) to
expect a “real link” between a given claimant and the relevant welfare community,
evidence to support that “real link” cannot be gathered exclusively on the basis of
generalised criteria (such as past or continuing residency). The national authorities
must also give due consideration to the personal circumstances of each individual
claimant, even if this implies taking into account factors or circumstances not
recognised as relevant or compelling under the applicable domestic legislation.48
That summary of the current legal framework governing the welfare rights and
obligations associated with Union citizenship sets the scene for an analysis of the
main criticisms levied, particularly against the Court’s contribution, in the academic
literature. For ease of exposition, those criticisms can be divided into two main
categories: concerning the implications of the caselaw for conceptions of social
solidarity in Europe; and concerning the constitutional propriety of the Court’s
interpretation of Union citizenship.
3.2.
Concerning the implications of the caselaw for conceptions of social
solidarity in Europe
3.2.1. The very principle of Community intervention in national welfare systems
The evolution of national solidaristic rights and obligations has been (and continues to
be) highly contested: a range of actors with different and often opposing interests
must be reconciled to each other, not only through the usual medium of
democratically elected assemblies and other institutions of state, but sometimes also
in M Dougan and E Spaventa (eds), Social Welfare and EU Law (Hart Publishing, 2005); M Dougan,
“Fees, Grants, Loans and Dole Cheques: Who Covers the Costs of Migrant Education within the EU?”
(2005) 42 CMLRev 943 and “Cross-Border Educational Mobility and the Exportation of Student
Financial Assistance” (2008) 33 ELRev 723.
46
Case C-184/99 Grzelczyk [2001] ECR I-6193; Case C-413/99 Baumbast [2002] ECR I-7091.
47
Consider the rulings in Case C-406/04 De Cuyper [2006] ECR I-6947; Case C-287/05 Hendrix
[2007] ECR I-6909; Case C-228/07 Petersen (Judgment of 11 September 2008). See further, e.g. M
Dougan, “The Constitutional Dimension to the Case Law on Union Citizenship (2006) 31 ELRev 613.
48
Consider the rulings in Case C-224/98 D’Hoop [2002] ECR I-6191; Case C-138/02 Collins [2004]
ECR I-2703; Case C-209/03 Bidar [2005] ECR I-2119; Case C-258/04 Ioannidis [2005] ECR I-8275;
Case C-287/05 Hendrix [2007] ECR I-6909; Cases C-11-12/06 Morgan and Bucher [2007] ECR I9161; Case C-499/06 Nerkowska (Judgment of 22 May 2008). See further, e.g. E Spaventa, “Seeing
the Wood Despite the Trees? On the Scope of Union Citizenship and Its Constitutional Effects” (2008)
45 CMLRev 13.
10
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
by the expression of more direct forms of social confrontation such as strikes and civil
disorder, and the resulting manifestations of solidarity must secure at least the tacit
approval of the population at large, according to the inherited and changing social,
economic, political and cultural structures and preferences of the relevant society.49
Domestic welfare relationships, as they exist at any given point in time, are therefore
the product of complex and multi-faceted processes of social bargaining that pertain
to the very core of national democratic contestation. Small wonder, therefore, that the
definitions of belonging to and exclusion from membership of the national solidaristic
community are closely associated with the fundamental expression of state (and
popular) sovereignty.50
Against that background, it is possible to argue that the very principle of
Community intervention in the national solidaristic communities raises certain
difficulties. After all, it is highly doubtful whether the Community’s decision-making
procedures – including to a degree the legislative interaction of Commission, Council
and European Parliament which results in measures such as Directive 2004/38;51 but
especially the adjudicative role of the Court of Justice which produces rulings such as
Grzelczyk, Collins and Bidar52 – could claim to have forged their welfare choices with
any comparable degree of inclusion or contestation, or to command any comparable
level of popular adherence to their policy outcomes, simply by virtue of the process
by which they were produced. At the very least, therefore, the welfare rights and
obligations associated with Union citizenship are the product of political and legal
processes which stand apart from and lack the legitimacy of their national
counterparts.53 That critique could indeed be carried further. Not only are
Community welfare policies largely the result of elite choices which are then
superimposed onto the national solidarity systems on the basis of relatively shallow
reserves of social and cultural legitimacy, but once imposed, those choices are very
difficult to adjust and almost impossible to remove by any given Member State acting
unilaterally.54 Regardless of the substantive merits of the rights and obligations
created and promoted by the Community legislature and / or the Court, it is therefore
arguable that the dimension to our solidarity relationships with the least claim to
legitimacy – that associated with Union citizenship – also enjoys the most privileged
and protected legal status within the domestic welfare systems.
Some commentators might take issue with such an interpretation, on the
grounds that it conceives of the interaction between national solidarity and Union
citizenship in a relatively static and confrontational manner. A more dynamic and
perhaps optimistic view would be that the complex and gradual layering of national
and European identities, within the framework of the Union, offers the potential to
49
For an overview of the historical development of social solidarity, from the early 19 th century to
contemporary times, see S Stjernø, Solidarity in Europe: The History of an Idea (CUP, Cambridge,
2005).
50
And that welfare rights are seen as an intrinsic element in expressing and facilitating the democratic
link between citizen and state: see further, e.g. N Harris (ed), Social Security Law in Context (OUP,
Oxford, 2000) especially Chs 1-2.
51
[2004] OJ L158/77.
52
Case C-184/99 Grzelczyk [2001] ECR I-6193; Case C-138/02 Collins [2004] ECR I-2703; Case C209/03 Bidar [2005] ECR I-2119.
53
Cf. K Hailbronner, “Union Citizenship and Access to Social Benefits” (2005) 42 CMLRev 1245,
who seems more sympathetic towards the legitimacy of the Community legislature than that of the ECJ
in manufacturing new solidarity rights for economically inactive migrant Union citizens (at pp 1265-6).
54
Especially in the case of ECJ rulings. Consider, e.g. Austria’s repeated attempts to overturn or limit
the ruling in Case C-147/03 Commission v Austria [2005] ECR I-5969 concerning equal treatment for
Union citizens as regards access to the national higher education system.
11
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
forge novel forms of collective consciousness and to nurture new bonds of solidarity,
capable of overcoming inherited reservations about the provision of welfare support
beyond the traditional (national, territoriality and contributory) boundaries of the
domestic solidaristic communities.55 But assuming that thin institutional structures,
weak political will and insipid popular demand render such a prospect more remote /
contingent than it is imminent / assured, the question arises: will novel Community
choices about belonging to and exclusion from the national solidaristic communities –
imposed in a top-down fashion by the Union institutions, and thenceforth shielded
from many of the ordinary processes of domestic contestation or readjustment –
nevertheless prove able to embed themselves into the national welfare systems?56
Given that their input legitimacy is so precarious, it might seem that the best hope for
such Community choices lies in their capacity instead to garner sufficient output
legitimacy, i.e. to elicit a sympathetic and accommodating response from the Member
States, or at least to tally with popular preferences emerging at the domestic level in
any case. But if the rights and obligations imposed by Community law diverge from,
or even directly contradict, the outcomes which would otherwise result from national
political and social choices, it is possible that the welfare dimension specific to Union
citizenship could be precariously exposed – and any more fundamental constitutional
and / or political ambitions lying behind the promotion of a common “European social
citizenship” seriously compromised.57
3.2.2. The perceived content of the welfare rights enjoyed by Union citizens
If the very idea of a Community-driven reconfiguration of established national
welfare spaces seems controversial, the problems continue when one turns to evaluate
the perceived content of the welfare rights and obligations associated with Union
citizenship. In particular, academic opinion seems divided over the substantive nature
and value of the solidarity models currently being constructed under Community law.
Some commentators in fact seem supportive of the Court’s caselaw, interpreting the
improved but still graduated, nuanced and conditional rights of residency and equal
treatment for economically inactive migrants as a valuable European dimension to
social solidarity which tangibly enhances the legal and political value of Union
Consider, e.g. G Davies, “‘Any Place I Hang My Hat?’ or: Residence is the New Nationality” (2005)
11 ELJ 43, who suggests that the caselaw’s emphasis on residency rather than mere nationality as the
touchstone of solidarity and welfare support “is an appropriate extension of the European project;
finally an assault on national and historical determinism, and its replacement by a voluntary society,
open to change” (at p 56). For discussion of the inter-relationship between national and European
identities, see further, e.g. K Eder and B Giesen (eds), European Citizenship Between National
Legacies and Postnational Projects (OUP, Oxford, 2001); N Prentoulis, “On the Technology of
Collective Identity: Normative Reconstructions of the Concept of EU Citizenship” (2001) 7 ELJ 196;
N Barber, “Citizenship, Nationalism and the European Union” (2002) 27 ELRev 241; K Kumar, “The
Idea of Europe: Cultural Legacies, Transnational Imaginings and the Nation State” and R Kastoryano,
“Transnational Networks and Political Participation: The Place of Immigrants in the European Union”
in M Berezin and M Schain (eds), Europe Without Borders: Remapping Territory, Citizenship and
Identity in a Transnational Age (John Hopkins University Press, Baltimore, 2003); F Mayer and J
Palmowski, “European Identities and the EU: The Ties that Bind the Peoples of Europe” (2004) 42
JCMS 573.
56
Cp. S Besson and A Utzinger, “Future Challenges of European Citizenship: Facing a Wide-Open
Pandora’s Box” (2007) 13 ELJ 573, who refer to the problems of “practical appropriation and
conscientisation by EU citizens themselves” of judicially-led citizenship rights (at p 575).
57
Cp. P Magnette, “How Can One be European? Reflections on the Pillars of European Civic Identity”
(2007) 13 ELJ 664.
55
12
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
citizenship while respecting the legitimate interests and sensitivities of the Member
States.58 However, others believe that the expectations of financial solidarity now
being encouraged under Community law are unduly generous. For example, Somek
has argued that merely combining the formal legal status of Union citizenship with
some period of residence in another territory, as the basis for expanded residency and
equal treatment rights for economically inactive migrants, is no substitute for a more
profound moral dimension to the welfare responsibilities any given society can be
expected to demonstrate towards foreign nationals.59 Indeed, several commentators
appear intuitively uncertain about whether “real links” of the sort apparently rewarded
under Community law are actually capable of generating any meaningful sense of
social solidarity towards economically inactive foreigners – and might not ultimately
risk producing the opposite effect, i.e. of provoking a backlash among the host society
against individuals who have not acquired membership of the solidaristic community
according to the latter’s traditional or accepted criteria.60
In this regard, it is worth considering the potential relevance of the 2004 and
2007 enlargements of the Union. Without doubting the fundamental value of those
accessions for the Union and new Member States alike, there can be little doubt that
the relationship between recent enlargements and the free movement of persons has
raised certain difficulties in public debate and for public policy: for example,
concerning the protection of national labour markets against CEEC workers and fears
about the prospect of unfair competition by CEEC undertakings,61 as well as worries
that mass migration by CEEC nationals could impose serious demands upon domestic
welfare benefits and services.62 On the latter point, it should be recalled that, in
addition to the transitional restrictions on the free movement of persons contained in
the Treaties of Accession 2003 and 2005, various Member States have responded to
the Union’s enlargement by introducing additional restrictions on the availability of
domestic social support for migrant Union citizens.63 As has been observed, such
restrictions are often targeted primarily at the economically active migrant,
challenging the assumption that Community law has succeeded in convincing
Member States to automatically translate even an economic contribution into
Consider, e.g. C Jacqueson, “Union Citizenship and the Court of Justice: Something New Under the
Sun? Towards Social Citizenship” (2002) 27 ELRev 260; H Verschueren, “European (Internal)
Migration Law as an Instrument for Defining the Boundaries of National Solidarity Systems” (2007) 9
European Journal of Migration and Law 307; S Giubboni, “Free Movement of Persons and European
Solidarity” (2007) 13 ELJ 360.
59
A Somek, “Solidarity Decomposed: Being and Time in European Citizenship” (2007) 32 ELRev
787.
60
E.g. C Tomuschat, Annotation of Sala (2000) 37 CMLRev 449; C Barnard, “EU Citizenship and the
Principle of Solidarity” in M Dougan and E Spaventa (eds), Social Welfare and EU Law (Hart
Publishing, Oxford, 2005). Note also: M Dougan, “Free Movement: The Workseeker as Citizen”
(2001) 4 CYELS 93; K Hailbronner, “Union Citizenship and Access to Social Benefits” (2005) 42
CMLRev 1245; C Barnard, Annotation of Bidar (2005) 42 CMLRev 1465.
61
In which regard, consider disputes such as those in Case C-438/05 Viking Line (Judgment of 11
December 2007); Case C-341/05 Laval un Partneri (Judgment of 18 December 2007); Case C-346/06
Dirk Rüffert (Judgment of 3 April 2008).
62
See further, e.g. M Dougan, “A Spectre is Haunting Europe… Free Movement of Persons and the
Eastern Enlargement” in C Hillion (ed), EU Enlargement: A Legal Approach (Hart Publishing, Oxford,
2004); A Adinolfi, “Free Movement and Access to Work of Citizens of the New Member States: The
Transitional Measures (2005) 42 CMLRev 469.
63
See further, e.g. P Larkin, “The Limits to European Social Citizenship in the United Kingdom”
(2005) 68 MLR 435; S Currie, Migration, Work and Citizenship in the Enlarged European Union
(Ashgate, Aldershot, forthcoming).
58
13
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
solidaristic bonds with the host society.64 More broadly, one might wonder whether
the temporal coincidence of the 2004 and 2007 enlargements with the Court’s
transformation of Union citizenship merely exacerbates the difficulties of securing
popular acceptance for the principle of financial solidarity towards migrant
Community nationals: it seems hard to imagine that such a dramatic expansion in the
number and diversity of right-holders within such a short space of time, against the
background of a political and public discourse which presents CEEC migration as
much as a menacing threat as a shared right, could help (at least in the short term) to
foster deeper as well as merely wider transnational welfare bonds based upon our
common Union citizenship. Indeed, Italy’s treatment of Romanian migrants, and of
the Roma community, which began after the 2007 accession under the left-wing
government of Prodi and then escalated under the right-wing administration of
Berlusconi, suggests that the Union’s massive eastern enlargement has not necessarily
translated into an “ever closer union” between the peoples of Europe – and could even
have kindled certain feelings of hostility and alienation.
Another group of scholars adopt a rather different perspective on the caselaw.
For example, O’Brien submits that the Court’s “real link” concept is in fact a
relatively un-ambitious and un-intrusive construct: it confers upon migrant Union
citizens little more than a right to be assessed according to a rational, appropriate,
accurate and flexible administrative procedure; but the Court does not otherwise
fundamentally interfere with the Member State’s power to determine precisely which
substantive factors and relationships will be valued as legitimate entry-tickets into its
own welfare society. Viewed from that perspective, the “real link” test could indeed
act as a vehicle for disguising and legitimising social exclusion against economically
inactive migrant Union citizens: for example, where Member States are free to
recognise and reward certain forms of social integration and civic participation while
marginalising and devaluing others – almost, in effect, creating a form of “integration
test” for certain Community nationals.65 In any event, according to this analysis, even
if Union citizenship might produce limited benefits (for example) as regards the
procedural fairness and transparency of domestic systems of welfare adjudication,
nevertheless the caselaw itself emerges neither as a threat to the moral depth and
complexity of essentially national concepts of solidarity, nor as a panacea to the
Union’s own concerns about “constitutional asymmetry”.66
That critique may be linked up to another argument, which also stresses the
essentially limited impact of Union citizenship, particularly in the context of relations
between migrant and host state.67 In particular, the primary “added value” of Union
citizenship – so far as concerns those (as in Baumbast)68 who derive their residency
status from Community law – is to cushion claimants who are essentially financially
independent from the effects of an over-zealous application of Community law
S Currie, “‘Free’ Movers? The Post-Accession Experience of Accession-8 Migrant Workers in the
United Kingdom” (2006) 31 ELRev 207.
65
See C O’Brien, “Real links, abstract rights and false alarms: the relationship between the ECJ’s ‘real
link’ case law and national solidarity” (2008) 33 ELRev 643.
66
Consider also criticism of the vagueness of the “real link” concept, and the wide leeway this affords
to Member States, e.g. by S O’Leary, “Solidarity and Citizenship Rights in the Charter of Fundamental
Rights of the European Union” in G de Búrca (ed), EU Law and the Welfare State (OUP, Oxford,
2005); S Besson and A Utzinger, “Future Challenges of European Citizenship: Facing a Wide-Open
Pandora’s Box” (2007) 13 ELJ 573.
67
See M Dougan, “The Court Helps Those Who Help Themselves… The Legal Status of Migrant
Workseekers Under Community Law in the Light of the Collins Judgment” [2005] EJSS 7.
68
Case C-413/99 Baumbast [2002] ECR I-7091.
64
14
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
concerning the need to demonstrate sufficient resources and comprehensive medical
insurance; and also to extend a helping though still limited hand to other categories of
Union citizens who seem deserving of support because they are trying to better
themselves in some orthodox economic sense, for example, as migrant students (as in
Grzelczyk)69 or workseekers (as in Collins).70 Beyond that, however, Union
citizenship holds out to more vulnerable categories of individuals (as in Trojani)71
only the promise of equal treatment as regards access to social advantages, but
without the security of residence within the host territory necessary to make such
equal treatment truly meaningful in practice,72 unless the claimant (as in Sala73 and
Bidar,74 or now, pursuant to the permanent residency provisions of Directive 2004/38)
has achieved a sufficient degree of integration into the host society as to effectively
place him/herself beyond the possibility of expulsion by the national authorities.75 On
that view, Union citizenship could once again claim to make only a modest
contribution to the legitimisation of Community power through a “European social
citizenship”; if anything, Community law appears designed to entrench and perpetuate
unequal rights for individual Union citizens.76
3.2.3. The structure of judicial reasoning and the balance between individual rights
and collective interests
Academic opinion is therefore unsure what to make of the Court’s conception of
Union solidarity and its relationship to national solidarities. To complicate matters
further, the solidarity model being promoted by the Court can be criticised from
another perspective, concerning the inter-relationship between (first) the balance
between an individual right to welfare support and the collective aspects of social
solidarity, (secondly) the very structure of judicial reasoning employed in the caselaw
on Union citizenship, and (thirdly) the proper role of the judicial function in disputes
about the allocation of welfare resources.
Despite Marshall’s influential categorisation of social rights alongside more
traditional civil and political rights in the triptych of modern citizenship, 77 other
scholars have argued that social – and especially welfare rights – are marked by an
important difference: they are fundamentally about the redistribution of income
between social groups, and imply a claim on resources and legitimisation of the
redistributive role of the state.78 Of course, welfare rights may display all the
69
Case C-184/99 Grzelczyk [2001] ECR I-6193.
Case C-138/02 Collins [2004] ECR I-2703.
71
Case C-456/02 Trojani [2004] ECR I-7573.
72
See further, on the temptation for Member States to expel Union citizens rather than risk welfare
liabilities towards them, e.g. S Fries and J Shaw, “Citizenship of the Union: First Steps in the European
Court of Justice” (1998) 4 EPL 533; S O’Leary, “Putting Flesh on the Bones of European Union
Citizenship” (1999) 24 ELRev 68.
73
Case C-85/96 María Martínez Sala [1998] ECR I-2691.
74
Case C-209/03 Bidar [2005] ECR I-2119.
75
See further, e.g. C Barnard, “EU Citizenship and the Principle of Solidarity” in M Dougan and E
Spaventa (eds), Social Welfare and EU Law (Hart Publishing, Oxford, 2005).
76
The potential for greater exportation of benefits from the home state pursuant to Article 18 EC may
help alleviate some of those inequalities, but without eliminating them entirely: see further, e.g. M
Dougan, “Expanding the Frontiers of Union Citizenship by Dismantling the Territorial Boundaries of
the National Welfare States?” in C Barnard and O Odudu (eds), The Outer Limits of EU Law (Hart
Publishing, Oxford, forthcoming).
77
T H Marshall, Citizenship and Social Class (CUP, 1949, reprinted Pluto Press, 1991).
78
M Kleinman, A European Welfare State? (Palgrave, Basingstoke, 2002) pp 194-195.
70
15
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
characteristics of enforceable subjective legal rights: as recognised under Community
law itself, the very concept of social security usually implies the conferral upon its
beneficiaries of a legally defined position, with benefits granted as of right upon the
occurrence of a particular contingency.79 Nevertheless, it has been argued that “[t]he
language of social citizenship, in effect, enables what is fundamentally a political
struggle and a philosophical argument about income redistribution and economic
inequality to be dressed up in the language of legal rights”.80 Or to put it differently,
one might say that questions about entitlement to welfare engage not only the
individual’s personal expectation of social support, but also the relevant society’s
choices about the allocation of its available resources, which in turn reflect collective
moral judgments concerning the nature of its social solidarity: what risks to protect
against, what levels of support to offer, and which individuals fall within the
catchment area of collective responsibility.81
Yet it is arguable that Community law, and particularly the approach of the
ECJ, risks neglecting that crucial collective dimension to social solidarity. 82 In that
regard, one might begin with the observation that it has become so easy to trigger the
application of the provisions on Union citizenship – thanks to the Court’s broad
construction of the personal and material scope of the Treaty,83 and the sheer breadth
of the rights of residency, equal treatment and freedom from barriers to movement
enjoyed by individual citizens – that the mere existence of a prima facie infringement
of the Treaty has surely lost its ability to tell us anything meaningful about the
balance of policy interests at stake in any given dispute. In other words, breaching the
Treaty has become so commonplace that the relevant national rules should not per se
be treated with antagonism, as if it can thenceforth be taken for granted that they have
offended against some higher public interest.84 That would be to elevate the simple
principle of movement – and incidentally, all of the second-order rights derived from
that movement, such as individual rights to welfare support from the host or home
state – above all other manifestations of the general good. Yet it is arguable that that
is exactly the nature and outcome of judicial reasoning in free movement cases:
having triggered the application of the Treaty on the basis of an individual right
connected to movement, the onus then falls upon the Member State to explain and
defend its disputed national rules, in accordance with the constraints imposed by the
principle of proportionality and other general principles of Community law. The very
79
See, e.g. Case 79/76 Fossi [1977] ECR 667.
M Kleinman, A European Welfare State? (Palgrave, Basingstoke, 2002) p 195.
81
For a detailed analysis of the theoretical nature of social solidarity, including the relationship
between individual and collective interests, see S Stjernø, Solidarity in Europe: The History of an Idea
(CUP, Cambridge, 2005).
82
As noted also by S Giubboni during a presentation on “A Certain Degree of Financial Solidarity:
Some Reflections on the Caselaw of the Court of Justice on Cross-Border Access to National Welfare
Systems” at the conference Seeking Solidarity in the European Union: Towards Social Citizenship and
a European Welfare State? (University of Sussex, 7 May 2008). Similar allegations have been raised
against the “individualistic” approach to social and welfare rights in the EU’s Charter of Fundamental
Rights: see, e.g. M Berezin and M Schain (eds), Europe Without Borders: Remapping Territory,
Citizenship and Identity in a Transnational Age (John Hopkins University Press, Baltimore, 2003) at
pp 22-24.
83
On which, see E Spaventa, “Seeing the Wood Despite the Trees? On the Scope of Union Citizenship
and Its Constitutional Effects” (2008) 45 CMLRev 13. Also, e.g. A Epiney, “The Scope of Article 12
EC: Some Remarks on the Influence of European Citizenship” (2007) 13 ELJ 611; Y Borgmann-Prebil,
“The Rule of Reason in European Citizenship” (2008) 14 ELJ 328.
84
See, in a similar sense, N Nic Shuibhne Annotation of Schwarz, Commission v Germany and Morgan
and Bucher (2008) 45 CMLRev 771.
80
16
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
structure of legal argumentation before the Court of Justice therefore emphasises from
the outset the importance of the individual and endorses his / her claim of entitlement
to welfare support, whereas the collective aspects of social solidarity are put on the
defensive and thereby at an inherent disadvantage.85
That inherent disadvantage is aggravated by certain other features of
adjudication before the Court of Justice. On one side, the Court does not allow the
process of triggering the Treaty (for example, on the basis of unequal treatment by the
host state or a barrier to movement by the home state) to be complicated by the need
for the individual to demonstrate empirically that his / her movement has actually
been deterred or impeded in any meaningful way. The Court relies on intuitive –
sometimes even counter-intuitive – assessments which attribute the average citizen
with both penetrating foresight and inordinate sensitivity, such that almost any
inequality of treatment for migrants acts as a deterrent to their apparently boundless
expectation of unimpeded mobility.86 On the other side, the Court often insists that
Member States fearful of the consequences that rights to free movement and / or equal
treatment for individual Union citizens might inflict upon national policy choices,
even those recognised as valid imperative requirements capable in principle of
justifying an infringement of the Treaty, must nevertheless produce firm evidence to
substantiate those fears.87 In several cases, Member States have failed to defend their
national policy choices simply because they were unable to present to the Court fully
documented empirical analyses to substantiate their concerns.88 In the battle between
competing suppositions, it seems that those favouring the individual will often trump
those designed to protect the public interest, so that the nature as well as the burden of
proof in free movement cases conspires against the collective aspects of social
solidarity.89
The balance is further tipped in favour of an individual right to welfare
support by another feature of the Court’s caselaw on Union citizenship and the
principle of proportionality: the insistence that Member States must not determine
qualification for benefits according to generalised criteria applied in an exclusive and
exhaustive fashion, without taking into account the personal circumstances of each
individual claimant – an assessment which may well oblige the national authorities to
recognise entitlement to welfare support on the basis of additional factors not
See further, e.g. M Dougan and E Spaventa, “Wish You Weren’t Here… New Models of Social
Solidarity in the European Union” in M Dougan and E Spaventa (eds), Social Welfare and EU Law
(Hart Publishing, Oxford, 2005). Cf. Y Borgmann-Prebil, “The Rule of Reason in European
Citizenship” (2008) 14 ELJ 328, who challenges the idea that the caselaw under Art 18 EC establishes
a conceptual hierarchy between the individual’s prima facie right to free movement and the Member
State’s imperative requirements of the public interest.
86
For a vivid recent example, consider Case C-212/06 Government of the French Community and
Walloon Government v Flemish Government (Judgment of 1 April 2008).
87
Though not in every dispute: consider, e.g. Case C-157/99 Peerbooms [2001] ECR I-5473; Cases C11-12/06 Morgan and Bucher [2007] ECR I-9161.
88
Consider, e.g. Case C-385/99 Müller-Fauré [2003] ECR I-4509; Case C-147/03 Commission v
Austria [2005] ECR I-5969. Note also Case C-228/07 Petersen (Judgment of 11 September 2008).
89
Consider also the problem for Member States of demonstrating that an individual’s recourse to social
assistance renders them an “unreasonable burden”, and therefore susceptible to physical removal from
the territory, having regard to the cumulative effect of similar cases: see further, e.g. M Dougan and E
Spaventa, “Educating Rudy and the (Non-)English Patient: A Double Bill on Residency Rights Under
Article 18 EC” (2003) 28 ELRev 699; though consider the ruling in Case C-385/99 Müller-Fauré
[2003] ECR I-4509, para 74. Contrast with the views of A P van der Mei, “Residence and the
Evolving Notion of European Union Citizenship” (2003) 5 European Journal of Migration and Law
419.
85
17
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
ordinarily considered valuable or even relevant under domestic law.90 The Court’s
“personal circumstances” approach to the principle of proportionality deserves
criticism in its own right on the grounds (first) that it risks creating serious legal
uncertainty, for individuals and authorities alike, in a field generally characterised by
the need for expeditious decision-making on a mass scale;91 and (secondly) that it
may end up diverting valuable financial resources into the administrative procedures
for assessing entitlement to benefits, with potential adverse consequences for the
overall provision of welfare support.92 But in addition, it is arguable that the
potentially intrusive nature of the Court’s “personal circumstances” assessment
contrasts strongly with the traditional basis upon which concepts of social solidarity
are adjudicated by the courts in many Member States. Domestic courts have long
been conscious of the limits of judicial intervention in decisions concerning the
allocation of welfare resources, having regard to their limited expertise and carefully
demarcated democratic mandate, relative to that of the competent political and
administrative authorities. In most cases, national judges (and administrative
tribunals) are more comfortable with enforcing basic standards of procedural fairness
as regards the treatment of individual claimants, rather than promoting their own
vision of substantive justice in contradiction to the wide discretionary powers
exercised by the primary decision-makers.93 However, the Court of Justice seems
much bolder in its willingness to question the Member State’s political choices about
the equitable sharing of available resources, or rather, to encourage judicial
intervention for the benefit of individual claimants, on the basis that their “personal
circumstances” outweigh the admittedly legitimate interests of the relevant Member
State as embodied in the latter’s established, and theoretically justifiable, decisionmaking structures and criteria.94
In short: the caselaw on Union citizenship tends to elevate free movement
within the EU over all other manifestations of the general interest, in particular, by
privileging individual welfare rights and expectations over the collective interests and
priorities normally inherent in concepts of social solidarity, and ultimately, to alter the
traditional character of judicial review in cases involving difficult choices about how
best to marshal scarce, or at least finite, national welfare resources. Of course, such
tendencies need not be viewed in a negative light: those commentators who have
90
See above.
Consider, e.g. AG Kokott in Case C-287/05 Hendrix (Judgment of 11 September 2007), especially
paras 70-73 Opinion. See further, e.g. M Dougan, “The Constitutional Dimension to the Case Law on
Union Citizenship (2006) 31 ELRev 613; H Verschueren, “European (Internal) Migration as an
Instrument for Defining the Boundaries of National Solidarity Systems” (2007) 9 European Journal of
Migration and Law 307.
92
Cp. discussion of the merits and problems of discretionary (as opposed to rule-based) decisionmaking in welfare systems in N Harris (ed), Social Security Law in Context (OUP, Oxford, 2000) at pp
35-37.
93
In English law, the two main examples are R v Cambridge District Health Authority, ex parte B
[1995] 2 All ER 129 and R v Gloucestershire County Council, ex parte Barry [1997] AC 584. See
further, e.g. E. Palmer, “Resource Allocation, Welfare Rights: Mapping the Boundaries of Judicial
Control in Public Administrative Law” (2000) 20 OJLS 63; and since the introduction of the Human
Rights Act 1998, e.g. J King, “The Justiciability of Resource Allocation” (2007) 70 MLR 197.
94
A criticism magnified by recent rulings where the claimant’s “personal circumstances” were
arguably far from unique or even exceptional, and taken into account systematically could amount to
the straightforward abolition of the relevant national restrictions: e.g. Cases C-11-12/06 Morgan and
Bucher [2007] ECR I-9161; Case C-499/06 Nerkowska (Judgment of 22 May 2008). However,
contrast with the views expressed in C O’Brien, “Real links, abstract rights and false alarms: the
relationship between the ECJ’s ‘real link’ case law and national solidarity” (2008) 33 ELRev 643.
91
18
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
criticised the marked reluctance on the part of national judges to intervene on behalf
of individual claimants suffering undoubted hardship as a result of disputed decisions
concerning welfare allocation might welcome moves by the ECJ to encourage a more
activist judicial role, not only in Community law cases, but eventually and by osmosis
in purely internal situations as well, whereby the domestic courts ensure that political
choices concerning welfare allocation are conducted within the same framework of
public law principles as any other branch of national administration.95 But others will
be dismayed by such a prospect, and might point to the healthcare caselaw –
understood as a branch of the caselaw on the exportation of benefits from the home
state,96 based on the reimbursement by an insured person’s own healthcare system of
the costs incurred in receiving medical treatment from a healthcare provider
established in another Member State – to help illustrate their concerns for both the
emergent Community and the inherited national concepts of social solidarity.97
On the one hand, certain academics praise the Court’s healthcare caselaw for
helping those individuals who have been “let down” by their own national healthcare
system to seek medical assistance elsewhere in the Union; for putting greater pressure
on the Member States to increase the resources devoted to their domestic healthcare
systems in an effort to reduce clinically unjustified waiting lists; and perhaps even for
pointing out to the Union the potential benefits of organising the Member States’
collective healthcare resources in a more efficient manner, which takes advantage of
particular regional medical strengths and the economies of scale to be derived from
greater cross-border specialisation.98 On the other hand, the Court has been accused
(usually by specialists in domestic healthcare law) of placing an individual right to
“queue jump” above the principle of solidarity – here understood in terms of the
universal sharing of costs and opportunities – which underpins many national
healthcare systems; it is further argued that that right to queue jump will, in practice,
benefit only a restricted class of patient, i.e. educated, confident and articulate enough
to know and exploit their rights, and wealthy enough both to pay for treatment upfront, as well as cover any ancillary costs such as travel and accommodation,
including those entailed by any accompanying family or friends.99 That sort of
critique might well be projected further, into the entire caselaw on the exportation of
benefits: without doubting the advantages for migrating individuals of continuing to
95
Consider the arguments for greater judicial intervention in the field of social and welfare rights, e.g.
by G van Bueren, “Including the Excluded: The Case for an Economic, Social and Cultural Human
Rights Act” [2002] PL 456.
96
Even if the legal basis for the decided healthcare caselaw is Art 49 EC on the free movement of
(economic) services, rather than Art 18 EC on the free movement of (economically inactive) Union
citizens, the underlying principles remain the same. Indeed, consider Case C-208/07 ChamierGlisczinski (Opinion of 11 September 2008; Judgment pending).
97
Especially: Case C-157/99 Peerbooms [2001] ECR I-5473; Case C-385/99 Müller-Fauré [2003]
ECR I-4509; Case C-372/04 Watts [2006] ECR I-4325; Case C-444/05 Stamatelaki [2007] ECR I3185.
98
See further, e.g. P van Nuffel, “Patients’ Free Movement Rights and Cross-Border Access to
Healthcare” (2005) 12 MJ 253; A Kaczorowska, “A Review of the Creation by the European Court of
Justice of the Right to Effective and Speedy Medical Treatment and its Outcomes” (2006) 12 ELJ 345.
Consider also M Flear, “Developing Euro-Biocitizens through Migration for Healthcare Services”
(2007) 14 MJ 239.
99
See further, e.g. J Montgomery, “Impact of European Union Law on English Healthcare Law” in M
Dougan and E Spaventa (eds), Social Welfare and EU Law (Hart Publishing, Oxford, 2005); C
Newdick, “Citizenship, Free Movement and Health Care: Cementing Individual Rights by Corroding
Social Solidarity” (2006) 43 CMLRev 1645; J McHale, “Framing a Right to Treatment in English
Law? Watts in Retrospective” (2007) 14 MJ 263.
19
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
enjoy social support from their home state, the removal of territorial welfare
restrictions does diminish the resources available to the public institutions to provide
for the well being of their static citizens. That in turn is illustrative of an important
element, and potentially an important flaw, in the ECJ’s overall approach to welfare
disputes: its tendency to focus on the rights of the individual migrant, to the potential
neglect of the collective interests of the relevant society.
3.3.
Concerning the constitutional propriety of the Court’s interpretation of
Union citizenship
The second main category of criticisms levied against the Court’s caselaw concerns
the constitutional propriety of its interpretation of the welfare rights associated with
Union citizenship.
3.3.1. Disregarding the Community’s variegated regulatory competences?
To begin with, the Court may be accused of developing the caselaw on Union
citizenship in disregard of the limitations on the Community’s regulatory
competences as enshrined in the Treaty. In fields such as health, education and social
security, the Treaty confers upon the Community legislature only limited powers to
intervene in the national legal systems, strictly circumscribed by the terms of the
applicable legal bases (which, in most cases, expressly rule out the possibility of
harmonising domestic law).100 Yet the Member State’s duty to respect the obligations
imposed directly under the Treaty – particularly in the field of free movement,
including the provisions on Union citizenship – manages to exert an increasingly
profound influence on the exercise of its domestic prerogatives to determine for itself
the organisation and functioning of its own systems of healthcare, education and
social protection. Furthermore, each time the Court finds that a particular category of
national rules infringes the primary Treaty provisions, it brings such rules within the
potential ambit of the Community’s competence to adopt harmonising measures for
the purposes of reducing or eradicating obstacles to the proper functioning of the
internal market and / or the free movement of Union citizens. The Commission’s
long-awaited proposal in July 2008 for a directive on the application of patients’
rights in cross-border healthcare – citing the Court’s caselaw under Article 49 EC as
its competence trigger and Article 95 EC as its legal basis, and providing for the
harmonisation of various aspects of national law relating to the cross-border provision
of medical treatment – serves as an excellent example of such “competence creep”.101
The caselaw concerning the welfare rights and obligations of migrant Union citizens
is therefore capable of rendering unto the Community legislature that which
(according to the scheme of differentiated regulatory competences envisaged by the
Treaty) was rightly assumed to belong to the Member States themselves.
It is true that the Court’s caselaw pursues an admirable logic when it refuses to
exclude per se such matters as health, education and social security from the impact
100
On health: Art 152 EC. On education: Arts 149-150 EC. On social security: Arts 18 and 137 EC.
COM(2008) 414 Final. See further, e.g. D Wyatt, “Community Competence to Regulate Medical
Services” in M Dougan and E Spaventa (eds), Social Welfare and EU Law (Hart Publishing, Oxford,
2005); G Davies, “The Community’s Internal Market-Based Competence to Regulate Healthcare:
Scope, Strategies and Consequences” (2007) 14 MJ 215.
101
20
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
of the primary Treaty provisions.102 But logic can provide Community law with only
so much legitimacy. After all, the social, economic, political and cultural sensitivities
of interfering with national rules on health, educational or welfare policy are similar
regardless of whether that interference emanates from the Community legislature or
instead the judiciary. Indeed, it is arguable that judicial intervention – precisely
because it lacks a clear mandate, bypasses deliberation by democratic institutions, and
(especially in cases concerning the interpretation of primary Treaty provisions) is
difficult to amend or reverse – raises even greater legitimacy problems in fields of
marginal Community responsibility than action by the accountable political
institutions. It therefore remains open for debate whether the Court should find a
lighter step with which to tread across spheres characterised by only complementary
Community regulatory competences – not by excluding the application of the primary
Treaty provisions altogether, of course, but at least by tempering the rigour with
which the objective of free movement is balanced against the Member State’s
countervailing legitimate interests, particularly within the context of the
proportionality assessment.103
3.3.2. Disregarding the Community legislature’s regulatory preferences?
Just as serious is the accusation that the Court has developed its caselaw on Union
citizenship sometimes even in disregard of the regulatory choices expressed by the
Community legislature in the exercise of its competences under the Treaty. As we
have seen, “indirect judicial review” of Community secondary legislation restricting
the exercise of free movement rights by Union citizens first emerged in the rulings in
Grzelczyk and Baumbast,104 in situations where the claimant’s actual or potential
reliance on welfare benefits / services within the host state called into question his /
her ability to satisfy the requirements for lawful residency contained in the Residency
Directives adopted in 1990-1993.105 The Court established that Community measures
regulating the exercise of the Union citizen’s right to free movement, as referred to in
Article 18 EC, must nevertheless be applied by the national authorities in compliance
with the general principles of Community law, especially the principle of
proportionality.106 In this regard, Grzelczyk and Baumbast constituted a novel
development in the caselaw: such judicial review of national acts, even though they
are in full compliance with valid Community legislation, amounts (indirectly) to
judicial review of that very Community legislation, and not of the “light touch” sort
one would normally expect as regards exercise of the Community’s own legislative
powers, but rather of a very detailed and intrusive kind which pierces right to the core
– the “personal circumstances” – of each individual case.107
102
See, e.g. Case C-372/04 Watts [2006] ECR I-4325, para 92 (as regards healthcare); Case C-76/05
Schwarz (Judgment of 11 September 2007), para 70 (as regards education); Case C-499/06 Nerkowska
(Judgment of 22 May 2008), paras 23-24 (as regards welfare benefits).
103
See, in a similar sense, F Jacobs, “Citizenship of the European Union: A Legal Analysis” (2007) 13
ELJ 591.
104
See above.
105
Directive 90/364 [1990] OJ L180/26; Directive 90/365 [1990] OJ L180/28; Directive 93/96 [1993]
OJ L317/59.
106
See further, e.g. M Dougan and E Spaventa, “Educating Rudy and the (Non-)English Patient: A
Double Bill on Residency Rights Under Article 18 EC” (2003) 28 ELRev 699.
107
M Dougan, “The Constitutional Dimension to the Case Law on Union Citizenship (2006) 31 ELRev
613.
21
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
The specific application of indirect judicial review illustrated in Grzelczyk and
Baumbast has now been incorporated by the Community legislature into the text of
Directive 2004/38, which expressly provides that recourse to social assistance shall
not justify automatic recourse to expulsion of the claimant from the host state.108
However, the broader principle of indirect judicial review has since been extended
into a broader range of situations where Community secondary legislation (implicitly
or explicitly) purports to limit or condition the exercise of Union citizenship rights
pursuant to Article 18 EC, yet the Court obliges the Member States to apply or
enforce such legislation without prejudice to the requirements derived from the
primary Treaty provisions themselves.
For example, the Court in cases such as Tas-Hagen and Nerkowska, and
Morgan and Bucher, found that home state territorial restrictions on the payment of
civilian war benefits and student financial assistance (respectively) were in prima
facie breach of Article 18 EC and had to be objectively justified – even though such
benefits were deliberately excluded from the material scope of Regulation 1408/71
(and will remain so under Regulation 883/2004) and were thus intended not to be
governed by the principle of exportation contained in the coordination regime.109
More controversially, it seems that even benefits which do fall within the material
scope of Regulation 1408/71 (and Regulation 883/2004), but whose exportation from
the home state has been positively restricted by the Community legislature, are now
amenable to scrutiny under the primary Treaty provisions. In De Cuyper, the Court
relied on Article 18 EC to examine the case of a Union citizen claiming that Belgium
could not terminate his unemployment benefits on the sole grounds that he had
changed habitual residence to France – notwithstanding the fact that the situation
appeared fully congruent with the provisions of Regulation 1408/71.110 The personal
circumstances of the particular claimant in De Cuyper did not appear to justify setting
aside the Belgian territorial restriction on payment of unemployment benefits.
However, in the subsequent case of Petersen, the Court indeed insisted upon the
exportation of an unemployment benefit from Austria to Germany, in favour of a
migrant (ex-)worker relying on Article 39 EC, even though the relevant claimant
again fell outside the situations expressly provided for under the Community’s own
coordination regime.111 The ruling in Petersen is couched in relatively narrow terms:
the Court claimed not to be directly contradicting Regulation 1408/71, which contains
only limited coordination provisions, such that all remaining national residency
requirements can still be scrutinised under the Treaty itself;112 furthermore, the
possibility of exportation as imposed under the primary Treaty provisions was
explained by reference to the special nature of the disputed benefit (which was offered
on a provisional basis to applicants for invalidity pension), whereas the Court hinted
strongly that, when it came to objectively justifying residency restrictions on
“ordinary” unemployment benefits, the primary Treaty provisions would oblige
108
Art 14(3) Directive 2004/38.
Case C-192/05 Tas-Hagen [2006] ECR I-10451; Case C-499/06 Nerkowska (Judgment of 22 May
2008); Cases C-11-12/06 Morgan and Bucher [2007] ECR I-9161. Consider cases where the claimant
fell outside the personal scope of Regulation 1408/71 but could nevertheless rely on the primary Treaty
provisions to challenge territorial restrictions on welfare benefits: e.g. Case C-213/05 Geven [2007]
ECR I-6347; Case C-212/05 Hartmann [2007] ECR I-6303.
110
Case C-406/04 De Cuyper [2006] ECR I-6947. See further, e.g. M Cousins, “Citizenship,
Residence and Social Security” (2007) 32 ELRev 386.
111
Case C-228/07 Petersen (Judgment of 11 September 2008).
112
Ibid, especially at paras 38-44.
109
22
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
Member States to follow only those rules already contained in Regulation 1408/71.113
Nevertheless, such judicial modesty should be read against the background of the
previous ruling in Hendrix.114 In that case, which was also based on Article 39 EC,
the Court made apparent its objection to a decision by the Netherlands to terminate
payment of a disability benefit for young people on the sole grounds that the claimant
worker had moved his habitual residence to Belgium – even though the disputed
payment was validly categorised as a special non-contributory [cash] benefit under
Regulation 1408/71 and should thus have been excluded entirely from the possibility
of exportation.115
It is not only in the application of Regulation 1408/71 that we might now
encounter the principle of indirect judicial review over Community secondary
legislation restricting the Union citizen’s free movement rights. Notwithstanding the
partial codification of Grzelczyk and Baumbast in Directive 2004/38, other provisions
of the new legislative regime on free movement for Union citizens may yet provoke a
similar judicial response. For example, Advocate General Mazák in Förster has
advised the Court effectively to ignore Article 24(2) Directive 2004/38, insofar as it
purports to overrule the judgment in Bidar116 by excluding the right of equal treatment
as regards educational grants and loans for migrant students who cannot qualify as
either workers or permanent residents, in favour of analysing each dispute on its own
merits pursuant to the primary Treaty provisions, the “real link” test and a “personal
circumstances” assessment.117 Similarly, academic commentators have suggested that
the Court might use the principle of indirect judicial review so as to bypass Article
24(2) Directive 2004/38, insofar as it appears to overturn the ruling in Collins118 by
excluding migrant workseekers from equal treatment as regards entitlement to social
assistance.119
On the one hand, some commentators have lodged serious constitutional
criticisms against the Court’s principle of indirect judicial review.120 The Court’s
interpretation of Union citizenship is not only immune from the Member States acting
unilaterally in the exercise of their residual regulatory powers, and indeed impervious
to their collective wishes as “masters of the Treaties”, whose carefully designed
system of variegated competences has had little impact upon the forward integrative
dynamic of the caselaw, but is also resilient even against the express will of the
Community’s own legislature. In effect, it is argued, the Court is usurping the role of
the Council and the European Parliament, and extending rights to Union citizens
beyond (and indeed despite) the clear limits negotiated and agreed by the Union’s
accountable political institutions. On the other hand, it has been argued that the
Court’s caselaw on indirect judicial review is capable of plausible constitutional
113
Ibid, especially at paras 57-62.
Case C-287/05 Hendrix [2007] ECR I-6909.
115
See further, e.g. C O’Brien, Annotation of Geven, Hartmann and Hendrix (2008) 45 CMLRev 499.
116
Case C-209/03 Bidar [2005] ECR I-2119.
117
Case C-158/07 Förster (Opinion of 10 July 2008; Judgment pending). Cp. M Dougan, “Fees,
Grants, Loans and Dole Cheques: Who Covers the Costs of Migrant Education within the EU?” (2005)
42 CMLRev 943; O Golynker, “Student Loans: the European Concept of Social Justice According to
Bidar” (2006) 31 ELRev 390.
118
Case C-138/02 Collins [2004] ECR I-2703.
119
See further, e.g. M Dougan, “The Court Helps Those Who Help Themselves… The Legal Status of
Migrant Workseekers Under Community Law in the Light of the Collins Judgment” [2005] EJSS 7; O
Golynker, “Jobseekers’ Rights in the European Union: Challenges of Changing the Paradigm of Social
Solidarity” (2005) 30 ELRev 111.
120
In particular: K Hailbronner, “Union Citizenship and Access to Social Benefits” (2005) 42 CMLRev
1245.
114
23
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
justification.121 In effect, the assertion that Union citizenship is “destined to be the
fundamental status”122 of all Member States nationals has succeeded in elevating the
relevant primary Treaty provisions to a special place within the Community’s
hierarchy of legal acts and justifies a more rigorous examination of the impact of
Community secondary legislation upon the exercise of the individual’s fundamental
freedoms.
However, that constitutional justification, while it may be legally plausible,
does expose a weak flank in the Court’s whole enterprise of enhancing the value and
status of Union citizenship. Free movement by economically active persons has
always enjoyed an express mandate in the Treaty, benefited from a reasonably clear
teleology to guide its development, and been furnished with the hard legal tools
required to achieve its goals. By contrast, free movement by economically inactive
persons can call upon only an ambiguous mandate under the Treaty, and lacks any
distinct teleology to direct its interpretation, while the legal armoury made available
to the Community institutions in this field is obviously more limited. Yet despite
those obstacles, the Court has succeeded in crafting a mandate, a teleology and the
legal tools, all by itself. The caselaw on Union citizenship effectively relies on blind
faith in a particular political vision – that Union citizenship really is destined to be the
fundamental status of all Community nationals – which the Court considers powerful
enough to justify a transformation in the complex web of welfare relationships
between individuals and societies, host and home states, and Community institutions
and judicial authorities. Indeed, in the current process of deterritorialising and
reterritorialising welfare states within the EU, the Court seems to be asserting that it is
the emergent supranational space, as interpreted by the judges, which truly expresses
and projects the collective will of the Member State populations, and thereby
commands an authority more compelling than that of either the inherited national
models or any alternative understanding expressed by the Union’s political leaders. Is
that vision persuasive? In particular, can it survive the painful process of
constitutional reform leading up to, and now engulfing, the Treaty of Lisbon 2007?
4.
The Relevance of the Treaty of Lisbon 2007
New treaties have a reputation for neglecting to address the thorny issue of the
Union’s relationship to the national welfare states and its role in welfare policy more
generally.123 True to form, the Treaty of Lisbon 2007 seems at first glance of little (if
any) relevance to the debate about the welfare rights and obligations associated with
migrant Union citizens. After all, Lisbon’s formal impact upon the existing Treaty
provisions concerning Union citizenship is marginal.124 Even the introduction of an
In particular: M Dougan, “The Constitutional Dimension to the Case Law on Union Citizenship
(2006) 31 ELRev 613.
122
For the first time in Case C-184/99 Grzelczyk [2001] ECR I-6193, para 31. And in many other
cases since, e.g. Case C-224/98 D’Hoop [2002] ECR I-6191, para 28; Case C-148/02 Garcia Avello
[2003] ECR I-11613, para 22; Case C-224/02 Pusa [2004] ECR I-5763, para 16; Cases C-482 and
493/01 Orfanopoulos [2004] ECR I-5257, para 65; Case C-403/03 Schempp [2005] ECR I-6421, para
15; Case C-520/04 Turpeinen [2006] ECR I-10685, para 18; Case C-50/06 Commission v Netherlands
[2007] ECR I-4383, para 32.
123
Consider, e.g. G Falkner, “The Treaty on European Union and Its Revision: Sea Change or Empty
Shell for European Social Policies?” in S Kuhnle (ed), Survival of the European Welfare State
(Routledge, London, 2000).
124
Save for the new power under Art 21(3) TFEU to legislate on social security and social protection
for Union citizens: see below. See further on the post-Lisbon Union citizenship provisions, e.g. S
121
24
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
express reference to the idea that Union citizenship shall be additional to, and not
replace, national citizenship merely clarifies the status quo.125 Nor, in this context,
does the conferral of binding legal effects upon the Charter of Fundamental Rights,
including the provisions concerning social solidarity, seems likely to make much
practical difference.126 The constitutional reform process has therefore produced
neither any direct and clear endorsement, nor any direct and clear rejection, of the
status quo as it has evolved in the secondary legislation and through the ECJ’s
caselaw. Yet a broader look at the Treaty of Lisbon, and at the constitutional reform
process of which Lisbon now forms part, suggests that there may be more subtle
lessons to be learned in this field.
The revised Treaties are certainly peppered with newfound references to
“solidarity” between citizens and between Member States, 127 and to the Union’s role
in combating social exclusion and promoting social justice.128 However, the revised
Treaties are also notable for their renewed emphasis on the principle that the Union
enjoys only those powers conferred upon it by the Member States,129 and on the need
to exercise those attributed competences with due consideration for the principle of
subsidiarity.130 Furthermore, the revised Treaties would contain fresh indications that
social welfare in general, and social security in particular, are to be considered special
fields at the interface between Union and national competences. In the first place,
most of the existing limits on Union power as regards the spheres related to social
protection would remain in place;131 indeed, health and education would be formally
categorised as examples of complementary (rather than exclusive or shared) Union
competence.132 In the second place, even as regards the Union’s “hard” regulatory
powers in the field of social security, the decision-making procedures prescribed
under the revised Treaties would continue to highlight the sensitive nature of the
relevant subject-matter. For example, the new power in Article 21(3) TFEU for the
Union institutions to adopt measures concerning social security or social protection
necessary to attain the free movement of Union citizens may only be exercised by
default, and according to a special legislative procedure, based on unanimity in the
Council of Ministers and consultation of the European Parliament. The Union’s
existing power to adopt (minimum) harmonisation measures in the field of social
security and social protection for workers would remain subject to the same special
legislative procedure, without any possibility of the Council taking a simple decision
to replace it with the ordinary legislative procedure,133 and still subject to the proviso
that Union measures may neither affect the Member State’s right to define the
Currie, “The Transformation of Union Citizenship” in M Dougan and S Currie (eds), 50 Years of the
European Treaties: Looking Back and Thinking Forward (Hart Publishing, Oxford, forthcoming).
125
See Art 20(1) of the revised TFEU.
126
For a more detailed analysis, see J Tooze, “Social Security and Social Assistance” in T Hervey and J
Kenner (eds), Economic and Social Rights Under the EU Charter of Fundamental Rights (Hart
Publishing, Oxford, 2003).
127
E.g. sixth recital of the preamble, Art 2 and Art 3(3) of the revised TEU; Art 222 TFEU.
128
E.g. Art 3(3) of the revised TEU; third recital of the preamble and Art 9 TFEU.
129
E.g. Art 3(6), Art 4(1) and Art 5(2) of the revised TEU.
130
E.g. Art 4(2) and Art 5(3) of the revised TEU; Protocol on the application of the principles of
subsidiarity and proportionality.
131
On education: Arts 165-166 TFEU. On health: Art 168 TFEU. On social security: Art 153 TFEU.
132
See Arts 2(5) and 6 TFEU. Moreover, although social security falls within the Union’s shared
competence as regards social policy in general, according to Art 153 TFEU, harmonisation is not
possible as regards combating social exclusion and modernising social protection systems.
133
Art 153(2) TFEU. Though recourse could still be made to the general “passerelle clause” contained
in Art 48(7) of the revised TEU.
25
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
fundamental principles of its social security system nor significantly affect its
financial equilibrium.134 Moreover, as regards the Union’s longstanding power to
promote the cross-border coordination of national social security systems, the
Member States were unable to agree to a wholesale conversion of the unanimity
requirement currently contained in Article 42 EC, to ordinary QMV within the
Council of Ministers under the revised TFEU. The IGC instead agreed to create a
unique “emergency brake” procedure.135 Thus, the revised Article 48 TFEU employs
the ordinary legislative procedure (i.e. co-decision), with the Council acting by QMV
as normal, unless and until a Member States declares that draft legislation would
affect fundamental aspects, or the financial balance, of its social security system. In
that event, the ordinary legislative procedure shall be suspended and the matter
referred to the European Council. Within four months, the European Council may (by
consensus) refer the draft back to the Council, permitting the ordinary legislative
procedure to resume; or instead kill off the draft, by either taking no action or
requesting the Commission to submit a new proposal.136
In broad terms, the Treaty of Lisbon therefore affirms that welfare in Europe is
undergoing a process of deterritorialisation and reterritorialisation whose anchorage is
firmly located at the national level, supplemented by various new dimensions
cultivated by Community law or attributable to Union membership, but where simple
assertions about “supranational solidarity” lack any true legal, political or social
meaning when divorced from the constitutional constraints imposed by the Treaties.
In specific terms, it is arguable that the revised Treaties would complicate further the
problematic constitutional dimension to the welfare rights associated with Union
citizenship. After all, the Member States in their capacity as Treaty drafters continue
to stress and indeed reinforce the peculiarly sensitive nature of welfare as a field of
primarily national responsibility, and to impose ever more precise limits on the
powers of the Community legislature to intervene therein. Does that increase pressure
on the ECJ to align its caselaw concerning the interpretation of the primary Treaty
provisions more sympathetically with the system of graduated Union competences
enshrined in the revised Treaties; and / or to show greater deference towards the
welfare choices of the Member States, in particular, when it comes to the
proportionality assessment of national rules in prima facie breach of the Union
citizens’ rights to free movement and equal treatment?
More fundamentally, perhaps, it is arguable that the constitutional reform
process leading up to and beyond the signing of the Treaty of Lisbon highlights the
fragile normative basis upon which the Court has constructed its caselaw on Union
citizenship. In this regard, it would be tempting to focus on the detailed reasons why
the voters of France and the Netherlands, and then Ireland, rejected the Constitutional
Treaty and the Treaty of Lisbon (respectively).137 After all, among the wide variety of
antagonisms displayed towards the Constitutional Treaty / Treaty of Lisbon during the
course of the three unsuccessful popular referenda, it would be relatively easy to find
some constituency of public opinion which objected to the Union’s constitutional
reform on grounds that tally – however superficially – with the sorts of academic
134
Art 153(4) TFEU.
Though a variant of that “emergency brake” is also used in the field of judicial cooperation in
criminal matters (under Arts 82(3) and 83(3) TFEU). See further: M Dougan, “The Treaty of Lisbon
2007: Winning Minds, Not Hearts” (2008) 24 CMLRev 617.
136
Note Declaration No 23 annexed to the Final Act.
137
See the post-referenda opinion polls conducted at the request of the Commission in France, the
Netherlands and Ireland: Flash Eurobarometer Poll Nos 171, 172 and 245 (respectively).
135
26
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
concerns surrounding the welfare rights associated with Union citizenship highlighted
in previous sections of this paper: for example, an objection to the feeling that the
integration process is being driven forward by unresponsive political elites; the desire
to protect the national social model and welfare system from outside threats or
interference, whether by nebulous processes such as globalisation or by identifiable
organisations like the EU; or popular responses to the Union’s enlargement into
central and eastern Europe, especially fears concerning the dynamic migration
patterns it has unleashed (at least for certain Member States), and indeed broader
public concerns about the fragile relationship between immigration, integration and
national identity.
But however tempting, such an approach could only ever yield limited and
potentially even misleading results. After all, any political scientist would remind us
of the obvious difficulties in drawing firm or coherent conclusions about voter
preferences on European integration from the negative referenda results in France, the
Netherlands and Ireland: “no” votes were cast for myriad reasons, not all of them
related to the Constitutional Treaty / Treaty of Lisbon itself, or even to issues
concerning their country’s engagement with the EU; and many of those reasons would
appear upon closer analysis to be mutually incompatible – some people wanting “less
Europe” with a narrower focus on free trade, others wanting “more Europe” with an
active agenda of greater social integration.138
Against that background, perhaps the main lesson to be learned from the
constitutional reform process, for our purposes, is that there are genuine problems in
identifying and pursuing a “shared vision of European integration” among the peoples
of Europe. In fact, the post-Laeken debate on the “future of Europe” seems to have
revealed the existence of powerful differences between political vision and public
opinion within and between Member States. It is not without significance that, in the
aftermath of both the failure of the Constitutional Treaty, and the rejection by Irish
voters of the Treaty of Lisbon, there were repeated suggestions that the future of the
integration process surely lay in acknowledging and accommodating greater
differentiation between the 27 Member States of the enlarged European club, through
either the mechanism of enhanced cooperation,139 or the division of the Union in a
more formalised core and periphery.140
It might well be mere coincidence that the rulings in Grzelczyk and Baumbast
were delivered in the early and essentially optimistic stages of the constitutional
reform process.141 It might also be an interesting game to speculate about whether the
smooth ratification and entry into force of the original Constitutional Treaty would
have vindicated the Court’s trailblazing vision of Union citizenship and emboldened
the judges to push further their particular conception of supranational welfare
solidarity. But as events turned out, the crisis triggered by the 2005 referenda, the
fresh jolts from the Irish vote in 2008, and the ongoing challenge of finding a way
See further, e.g. P Taggart, “Questions of Europe: The Domestic Politics of the 2005 French and
Dutch Referendums and their Challenge for the Study of European Integration” in (2006) 44 JCMS:
Annual Review 7.
139
In which regard, note that the Treaty of Lisbon would further liberalise the substantive and
procedural conditions for engaging in enhanced cooperation, as compared to the regime inherited from
he Treaties of Amsterdam and Nice: see Art 20 of the revised TEU and Arts 326-334 TFEU.
140
See, e.g. T Konstadinides, “Now and Then: Fischer’s Core Europe in the Aftermath of the Collapse
of the December 2003 Constitutional Talks” [2004] Irish Journal of European Law 113.
141
Grzelczyk was delivered between the Nice European Council of December 2000 and the Laeken
European Council of December 2001; Baumbast was decided during the deliberations of the
Convention of the Future of Europe.
138
27
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
forward for the EU’s constitutional reform, all leave dangerously exposed the main
problems – allegations of social engineering and of judicial activism – associated with
the Court’s caselaw on the welfare rights of Union citizens. Even though we can feel
confident that few (if any) French, Dutch or Irish voters rejected the Constitutional
Treaty or the Treaty of Lisbon because of rulings such as Grzelczyk or Baumbast,
Tas-Hagen or De Cuyper, Hendrix or Morgan and Bucher, it nevertheless seems
legitimate to pose the question: does the Union’s constitutional crisis suggest that the
Court’s adventurous interpretative approach to Article 18 EC was in fact somewhat
ahead of its time? Has the Court been too hasty in assuming that mutuality of destiny
– and of solidarity – which provides the driving normative rationale behind its
caselaw on Union citizenship, and purports to justify such powerful transformative
effects for the welfare states, even without express sanction from the Member States
or the Union’s political institutions? Conversely, should the slap in the face of our
“shared vision of European integration” which the ratification crises of 2005 and 2008
surely represent, lead the Court to retreat back towards a more orthodox interpretation
of the welfare rights of Union citizens, i.e. in which there is greater legal recognition
for the collective aspects of social solidarity and greater judicial deference towards
political choices about how best to allocate a given society’s available welfare
resources?
5.
Concluding Remarks
In theory, the decline of the nation state’s historic monopoly over welfare provision
has created the opportunity for new spatial identities and solidarities to emerge, not
least through EU membership and the anticipation of closer economic, social, political
and cultural integration between Member States. In practice, however, it remains far
from clear that Member State citizens have actually reconciled themselves to this
possibility. On the one hand, the restructuring of welfare spaces within Europe has
not fundamentally altered the continued moral and financial anchoring of social
solidarity at the level of each nation state. On the other hand, the EU has increasingly
sought to develop a social dimension to its own activities, and a supranational
dimension to European welfare spaces, within the framework of its own peculiar
competences and institutions. This paper has argued that this dialectic raises various
substantive and constitutional problems – and ultimately suggested that the new
welfare spaces generated by processes of supranational integration might well be
viewed as much as a threat as an opportunity, even by those they are intended to
benefit.
In particular, the general assumption that greater rights for Union citizens
(including more generous rights to residency, equal treatment and unimpeded
movement, linked to the provision of welfare benefits and services by the migrant’s
host and home states) would be good for the EU’s social and political legitimacy has
perhaps given way to a more sober assessment, based on an increasing sense that an
over- or prematurely ambitious articulation of Union citizenship can actually be
mismanaged, to the detriment of not only the EU’s quest for greater popular
acceptance, but also the inherited networks of social solidarity that provide the
cornerstone of the national welfare states. The post-Laeken constitutional reform
process perhaps serves to compound those concerns – particularly through the lessons
suggested by the negative popular referenda in France, the Netherlands and Ireland
concerning the fragility and conditionality of our nascent European solidarity. For its
part, the Treaty of Lisbon preserves the accepted but rather vague idea of a multi-level
28
To appear in: R. Nielsen, U. Neergaard and L. Roseberry (eds), Integrating Welfare Functions
into EU Law: From Rome to Lisbon, (DJØF Publishing, Copenhagen, forthcoming in 2009)
European welfare space, grounded in the Member States but open to a Union
dimension, though without offering any clearer way forward or alternative strategy for
the future. The ball, as so often, ends up back in the Court: its vision of Union
citizenship initially transformed this field of Community law; will that vision survive
the tumults of the constitutional reform process unaltered?
29