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

Abstract

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.

Categorizing discourses of welfare chauvinism: Temporal, selective, functional and cultural dimensions

“…A distinction between different ‘types’ of non-natives (based on their legal status in the country or territory in question) was also expected to be made by populist radical right parties and mini-public participants across all three countries for two reasons. First, European law may not allow for discrimination against non-native EU citizens (although in practice, such discrimination already existed in all three countries due to legal uncertainties, see e.g., Blauberger and Schmidt, 2014; Gago and Hruschka, 2022). Second, our analysis (2014–17) covers the period of the so-called refugee crisis, at times when the status of asylum seekers and the perceived strain they put on the system were intensively discussed by populist radical right actors.…”

Agency, institutions, and welfare chauvinism: Tracing the exclusion of European Union migrant citizens from social assistance in Germany

“…Pressure from right-wing populist parties similarly does not offer a sufficient explanation for Hamburg’s demands: Hamburg proposed to legislate social assistance exclusions already in 2012, as part of a Städtetag working group (I18, I19; Städtetag, 2013) – before the far-right AfD was even founded. Still, some argue that the AfD’s success of entering the local parliament in 2015 with 6.1% of the votes (Statistikamt Nord, 2015) was an important reason behind the 2016 law (Gago and Hruschka, 2022: 10). Yet, it does not set Hamburg apart from other cities or states (Figure 1): the AfD’s 2015 election success in Hamburg was far below those in other states (Bundeswahlleiter, 2021).…”

“…Furthermore, social assistance is a most likely case for welfare chauvinist perceptions and reform attempts, considering that it is non-contributory and strongly associated with ideas of (non-)deservingness. Existing accounts of the 2016 law suggest that it was a response to political pressure resulting from the AfD’s electoral success (Gago and Hruschka, 2022: 10), and to a ruling by the German Federal Social Court which extended social assistance rights to EU migrant citizens (Martinsen and Werner, 2019: 643). Yet, we demonstrate that the legislative proposal to exclude EU migrant citizens from social assistance emerged from demands by German city administrations prior to the ruling.…”