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.

Implementing European case law at the bureaucratic frontline: How domestic signalling influences the outcomes of EU law

“…In our case, politicisation of free movement and cross border welfare, increasingly negatively framed in public debates as 'welfare tourism', appear to be a relevant background factor for the restrictive signalling across member states. With politicisation the issue has become more visible and important in various member states (Blauberger et al, 2018 ).…”

Power Shifts via the Judicial Arena: How Annulments Cases between EU Institutions Shape Competence Allocation

“…The question remains open as to whether this ruling (published in September 2006) was linked to the highly salient and controversial REACH proposal that the Commission was preparing internally for adoption in the College of Commissioners by October 2006 (cf. Blauberger et al, forthcoming).…”

The Court of Justice in times of politicisation: ‘law as a mask and shield’ revisited

“…Even if the vast majority of CJEU judgments do not reach broad visibility, newly collected data on newspaper coverage of CJEU jurisprudence shows that a considerable share of case law is in fact reported by main European newspapers (Dederke, 2018, p. 18). Moreover, there is empirical evidence that CJEU actually do 'read the morning papers' (Blauberger et al, 2018).…”

“…Member state governments, not the least from the UK, had already called for greater national discretion regarding the regulation of EU migrants' welfare access for several years. In addition, between 2013 and 2015, the public debate around the theme of 'welfare migration' increasingly politicised EU citizens entitlements to welfare in a hosting member state in several member states (Blauberger et al, 2018). 'Welfare tourism' came to feature as a negatively framed concept in the public debate.…”