ECJ Judges read the morning papers. Explaining the turnaround of European citizenship jurisprudence

Abstract

Recent jurisprudence of the European Court of Justice (ECJ) marks a striking shift towards a more restrictive interpretation of EU citizens' rights. The Court's turnaround is not only highly relevant for practical debates about 'Social Europe' or 'welfare migration', but also enlightening from a more general, theoretical viewpoint. Several recent studies on the ECJ have argued that the Court is largely constrained by member state governments' threats of legislative override and non-compliance. We show that an additional mechanism is necessary to explain the Court's turnaround on citizenship.While the ECJ extended EU citizens' rights even against strong opposition by member state governments, its recent shift reflects changes in the broader political context, i.e. the politicisation of free movement in the European Union (EU). The article theorizes Court responsiveness to politicisation and demonstrates empirically, how the Court's jurisprudence corresponds with changing public debates about EU citizenship.

Responding to free movement: quarantining mobile union citizens in European welfare states

“…Only recently, arguably with the Dano judgment in 2014 (C-333/13) and later Alimanovic (C-67/14) and , the Court broke with this expansionary line of case law and ruled in favour of Member States who used the limitations and conditions attached to free movement and residence to justify the exclusion of Union citizens from social benefits (Blauberger et al 2018). Meanwhile, high consensus hurdles for political legislation and conflicts of interests among extremely heterogeneous Member States have generally made it difficult to politically 'correct' the expansive case law of the ECJ at the European policy level (Scharpf 2008) especially since the EU enlargements of 2004 and 2007 (Scharpf 2010: 223).…”

Has the Court changed, or have the cases? The deservingness of litigants as an element in Court of Justice citizenship adjudication

“…Davies 2016;Verschueren 2015). Consistently with this, political scientists have shown that the judgments going against mobile citizens correspond to media attention for migration and benefit tourism (Blauberger et al 2018), suggesting that the Court 'reads the morning papers'. This fits a wider trend of political science research suggesting that the Court is responsive to external political pressures and moods (Kelemen 2012;Larsson and Naurin 2016;Martinsen 2015).…”

“…Trends in outcomes in Luxembourg may therefore be (partly) the product of trends at national level -just as it seems plausible that the cases on social assistance for noneconomically active mobile citizens are partly explained by changing migration patterns, and partly by national authorities seeking to circumscribe a difficult policy area by challenging unmeritorious claimants (Kramer 2016;Kramer et al 2018). It may be, to borrow a phrase, that national authorities and judges read the morning papers (Blauberger et al 2018).…”

“…This article does not deny the correlation between outcomes and political mood (Blauberger et al 2018). Rather, it adds to the possible explanations of it, and argues against a hasty leap to assume direct causation, suggesting instead that the important relationship may be between politicization and the nature of the references produced by national courts.…”

Free Movement and Equal Treatment in An Unequal Union

“…The contribution by Blauberger et al (2018) sets out to investigate empirically the ECJ's turnaround on EU citizenship. According to the dominant view among EU legal scholars (see the contributions to Thym 2018; for an opposed view, see Davies 2018), the Court has indeed shifted its interpretation of EU citizenship in recent years, although the underlying legal basis has remained unchanged.…”