Judicial policy-making and Europeanization: the proportionality of national control and administrative discretion

Abstract

Judicial policy-making is having an increasing impact on political domains traditionally guarded by national sovereignty. This paper examines how the European judiciary has expanded Community competences into the policy domains of welfare and immigration, followed by subsequent Europeanization, against the preferences of the member governments. It finds that the principle of proportionality constitutes a most powerful means for the European Court to strike the balance between supranational principles and national policy conditions and administrative discretion. While the Court has previously been cautious to apply the principle beyond economic law, it no longer treads as reluctantly, instead generally limiting the inner core of national policy control, i.e. the capacity of the national executive to detail, condition and administer national policies in almost all domains.

Keywords:

• Administrative discretion
• judicial policy-making and Europeanization
• national control
• principle of proportionality
• welfare and immigration policies

Notes

See Case C-438/05, Viking, 11 December 2007, para. 46; Case C-341/05, Laval, 18 December 2007, para. 94; Case C-346/06, Rüffert, 3 April 2008, paras. 40–2 and Case C-319/06, Commission vs. Luxembourg, 19 June 2008, paras. 51–3.

Case C-184/99, Grzelczyk, 20 September 2001.

Case C-456/02, Trojani, 21 November 2002.

Article 1 of Council Directive 90/364/EEC of 28 June 1990 on the right of residence.

Case C-413/99, Baumbast, 17 September 2002.

Also the later case of Bidar continued to enhance the residence rights to those without a ‘genuine link with the economic market’, Case C-209/03, Bidar, 15 March 2005.

Case C-138/02, Collins, 23 March 2004.

Case C-90/97, Swaddling, 25 February 1999.

By the Social Security (Habitual Residence) Amendment Regulations 2004, Statutory Instrument 2004. no. 1232.

That is, the residence directive 2004/38/EC.

The point of departure for the Court's expansion of the rights of non-Community family members was the Singh case from 1992; C-370/90, Singh, 7 July 1992.

Case C-60/00, Carpenter, 11 July 2002.

Case C-459/99, MRAX, 25 July 2002.

Case C-109/01, Akrich, 23 September 2003.

Case C-1/05, Jia, 9 January 2007.

Case C-291/05, Eind, 11 December 2007.

See also the more recent cases C-310/08 and C-480/08, Ibrahim and Teixeira, 23 February 2010, where the Court followed suit and continued extending the rights of third-country nationals with reference to the free movement principle of Community law.

In 2008, 155 individuals were granted family reunification in accordance with Community law. In 2009, 467 persons were granted the same right. See the yearly report from the Danish Immigration Service ‘Tal og Fakta på Udlændingeområdet’, spring 2010, p. 35.