Social rights, labour market policies and the freedom of movement: contradictions within the European project?

Absenger, Nadine; Blank, Florian

doi:10.4337/9781788112710.00018

Cited by 3 publications

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“…According to the FSC, it could not be proven that her residency ‘resulted solely from the purpose of seeking employment’ ( Federal Social Court, 2013 ). However, lower courts resisted the 2013 FSC ruling ( Blauberger and Schmidt, 2014 : 5) and in some cases deviated from it ( Absenger and Florian, 2018 : 164). Building on earlier judgments of the Regional Social Courts of Lower Saxony-Bremen and of Berlin Brandenburg, the Berlin Social Court, for example, criticized the FSC for disregarding the intention of the legislator by resorting to the SCB XII that is only applicable to persons who are unfit to work on a permanent basis.…”

Section: The Transposition Of Directive 2004/38/ec In Germanymentioning

confidence: 99%

The persistence of legal uncertainty on EU citizens’ access to social benefits in Germany

Gago

Hruschka²

2022

Journal of European Social Policy

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Legal uncertainty may hinder the effective implementation of public policies. Still, the political and legal dynamics that underpin its persistence are underexplored. This article proposes that legal uncertainty is more likely to persist in multi-level political and legal systems where actors with authority on the same issue hold different interpretations of rules. Also, it suggests that, under these conditions, actors can use legal uncertainty as an opportunity to advance their own interests. We illustrate this argument by investigating the legal uncertainty concerning EU citizens’ access to social benefits in Germany. Through the analysis of social legislation and courts’ rulings, the article shows that different interpretations of EU law by domestic actors hindered the possibilities of settling uncertainty: national courts of different levels used litigation processes and referrals to the Court of Justice of the European Union to advance their legal interpretations and the German government profited from the uncertainty to exclude EU citizens from social benefits.

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Section: The Transposition Of Directive 2004/38/ec In Germanymentioning

confidence: 99%

The persistence of legal uncertainty on EU citizens’ access to social benefits in Germany

Gago

Hruschka²

2022

Journal of European Social Policy

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“… 29. Absenger and Blank (2018: 161 ff) describe how several German courts sought, after the Dano judgment, a basis in the German Constitution and the European Convention on Social and Medical Assistance on which to grant subsistence benefits to persons in the position of Ms Dano. Apparently, they felt that these EU citizens should not be excluded from protection.…”

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confidence: 99%

Does the EU Charter of Fundamental Rights have Added Value for Social Security?

Pennings

2022

European Journal of Social Security

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In this contribution the added value of the Charter in the area of social security is examined. It is concluded that Article 34 of the Charter has not created fundamental rights that can be invoked in order to improve the legal position of claimants of social security or of social assistance. This conclusion is no surprise, given the express provisions limiting the interpretation of the Charter. Instead, it is interesting to note that the Charter has, in particular, added value where the scope for interpretation has not been explicitly limited, that is where provisions are applied that are not implemented by the instrument that is disputed in a particular situation. A second added value is the doctrine of horizontal effect, which means that in some cases provisions of Directives can also be invoked in horizontal situations. This is of relevance, particularly in non-statutory social security cases. Also, the Court of Justice itself seems to have had its difficulties in applying the Charter. It is difficult to understand the consistency of the Dano and CG judgments, where in the Dano the Court claimed not to have jurisdiction to interpret the non-specific provisions in the case, yet in CG, it did so without having even been asked. In this contribution it is undertaken to analyse these judgments with a view to better understanding the added value of the Charter.

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‘Pushing the boundaries’: a dialogical account of the evolution of European case-law on access to welfare

Gago

Maiani

2021

Journal of European Integration

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In the context of the 2004 Enlargement, several EU governments reformed their social legislation to restrict the access to benefits of job-seeking or inactive EU citizens. Many of these restrictions were in tension with the case-law of the European Court of Justice, but when it came to judge their compatibility with EU law, the ECJ was more lenient than many anticipated. This article analyses this shift in ECJ case-law by looking at the dialogue between the Court and national authorities against the backdrop of EU legislative reform. It demonstrates that Member States contributed to the evolution of case-law by ‘pushing the boundaries’ of EU law both domestically and before the Court. It shows in particular how closely the arguments presented before the Court by national judiciaries or governments correlate with the new interpretations adopted by the Court itself. This is illustrated with empirical evidence from the UK and Germany.

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Social rights, labour market policies and the freedom of movement: contradictions within the European project?

Cited by 3 publications

References 0 publications

The persistence of legal uncertainty on EU citizens’ access to social benefits in Germany

The persistence of legal uncertainty on EU citizens’ access to social benefits in Germany

Does the EU Charter of Fundamental Rights have Added Value for Social Security?

‘Pushing the boundaries’: a dialogical account of the evolution of European case-law on access to welfare

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