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

ABSTRACT

In recent cases concerning mobile citizens and access to social assistance the Court has sided with Member States against the litigating citizens. Given that in early cases it sided with the litigants, this has created the impression of a change in judicial perspective. This article looks at the most discussed sub-set of cases, and argues that a more plausible explanation lies in the changing characteristics of the litigants themselves – recent claims for social assistance are based on less meritorious facts. This raises a broader issue about research into judicial decisions: Trends in outcomes cannot be analysed without taking account of possible trends in inputs. These may vary due to changes in skills or strategies at national courts or authorities, or social changes leading to different litigant characteristics. Unless accounted for, claims that a court is changing its approach will be unreliable.

KEYWORDS:

• European Court of Justice
• judicial independence
• judicial responsiveness
• social assistance
• union citizenship

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Gareth Davies is Professor of European Law at the Vrije Universiteit Amsterdam.

ORCID

Gareth Davies http://orcid.org/0000-0002-9907-7758

Notes

1. Directive 93/96/EEC on the right of residence for students; Directive 90/364/EEC on the right of residence (the ‘playboy directive’).

2. There is no attempt in this paper to explore the specifically cultural, even racial, aspects of identity, as the argument here confines itself to criteria expressed in the law. That is not to say that there is nothing to be said about the varying national origins of the litigants in the case law.

Additional information

Funding

The research for this paper was part of a Norface-funded project, TransJudFare [grant number 462-13-009].