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

Introduction

Where mobile Union citizens seek social assistance in their host state this is a sensitive matter, provoking fears in some of benefit tourism and threats to national budgets, while for others it represents a chance to build transnational solidarity and give the Union social depth. In early cases where this issue arose the Court largely sided with the individual citizens seeking assistance. In more recent cases, however, it has largely sided with the Member States seeking to refuse social assistance, emphasizing the limitations to Union citizenship rights and the legitimate budgetary concerns of states.

Where there is change, there arises a desire to explain that change. Although only 6–10 cases are involved, both lawyers and political scientists have provided forceful arguments that the trend is not statistical accident, but a product of substantive changes at the Court. Broadly speaking, several lawyers have argued that the Court has undergone an ideological transformation, and retreated from the commitment to transnational citizenship which it used to display (Iliopoulou-Penot 2016; Nic Shuibhne 2015; O’Brien 2017; Spaventa 2017; c.f. Davies 2016; Verschueren 2015). Consistently with this, political scientists have shown that the judgments going against mobile citizens correspond to media attention for migration and benefit tourism (Blauberger et al. 2018), suggesting that the Court ‘reads the morning papers’. This fits a wider trend of political science research suggesting that the Court is responsive to external political pressures and moods (Kelemen 2012; Larsson and Naurin 2016; Martinsen 2015).

A coherent picture therefore emerges of a Court modifying its reading of the law in the light of the political context. Whether that change is because the Court fears a loss of legitimacy, or court-curbing measures (Carrubba and Gabel 2015; c.f. Scharpf 2010; Stone Sweet and Brunell 2012), or because the Court has authentically changed its own views – perhaps because of new appointments to the bench (Bobek 2015) or simply because individual judges are also denizens of a society which is in flux, and their own views change accordingly – is not something the research tells us, but the implication is that ideational change at the Court has, somehow, occurred.

This article challenges part of that story. It suggests two possible explanations for a change in the outcomes of judicial processes:

1. The Court has changed – the story above. Or,

2. the inputs have changed – the kinds of cases, or questions, which are referred to the Court have become less meritorious.

If I give my students in the morning an 8, and those in the afternoon a 5, it is possible that I had a bad lunch, or that the Dean had a quiet word with me about grade inflation, but it is also possible that the students in the morning did better work.

This article suggests that neither the legal nor political research so far allows us to distinguish between the two hypotheses above. Moreover, it looks closely at the facts of the leading cases on mobile citizens and benefits, and finds they support hypothesis ii. The recent cases are importantly different in character from the older ones. Whereas the early, successful, litigants came with stories which made it easy to regard them as ‘deserving’(Lafleur and Mescoli 2018; van Oorschot 2000), the newer, unsuccessful ones fit the mould of a meritorious claim for public support far less well.

This cannot show that the Court has not also changed. The reality may be a complex mixture of changes in Court composition, the views of individual judges, and in the kinds of cases being referred. However, the facts of the cases provide a sufficiently good explanation for the pattern in outcomes that there is no reason to conclude – yet – that the Court has changed its views on Union citizenship, or on circumstances justifying public support in a host state.

The importance of this conclusion is two-fold. For those interested in what drives the Court, in its ideological commitments, and its relationship to external political pressures, taking account of variable inputs to that Court is essential: claims which ignore that variation will be unreliable.

For those interested in the working of EU law in the Member States, changes in the nature of references invite further research. How does this come about? Is it the inevitable arc of any new right, in which litigation continues until the limits of the right are reached (Schmidt 2012)? Are national judges changing their behaviour, becoming more strategic in what they refer (Alter 2001; Golub 1996; Nyikos 2006), or are different kinds of claimants coming to court? If the latter, is that because the kind of mobile citizen needing public help is changing – because of enlargement, or the economic crisis – or are national authorities becoming more skilled, selective or strategic in choosing when to refuse benefits? (Blauberger 2012; Kramer 2016; Kramer et al. 2018) This article does not answer those questions, but its findings suggest that they need to be asked.

Method

This article considers the leading cases on access to social assistance for mobile citizens. It presents the facts as they are depicted in the judgments and opinions of the Advocate-General, and considers them in the light of what may be called a mainstream idea of what constitutes a meritorious case and a deserving litigant. On the basis of this, it demonstrates a consistency to the cases: deserving litigants win, less deserving ones lose.

Accordingly, the judgments are compatible with two hypotheses:

1. the Court changed its views, but around the same time the kinds of cases it was receiving underwent a change too, giving it ample opportunity to express its new, restrictive, worldview.

2. the Court has always had a moderately traditional, mainstream view of when a mobile citizen deserves assistance, and the cases depict this worldview being consistently applied to changing facts.

This article suggests the cases provide more support for the second hypothesis: not only is it more efficient, and does not require the ‘happy coincidence’ of the first, but it is also more compatible with plausible expectations regarding the moral standpoints of the judiciary. We cannot exclude that the Court has changed, at least a bit, but the cases have changed more.

Before addressing the cases, however, two issues must be addressed: the relationship of this argument to other research which seems to take a contrary view, and the use of the facts as portrayed by the Court itself.

Rebutting or complementing the existing research?

Correlation is not causation. This article does not deny the correlation between outcomes and political mood (Blauberger et al. 2018). Rather, it adds to the possible explanations of it, and argues against a hasty leap to assume direct causation, suggesting instead that the important relationship may be between politicization and the nature of the references produced by national courts.

Regarding the legal critique, there is less conflict than might at first appear. The essential argument made is that the Court has fallen from the trajectory it began (Iliopoulou-Penot 2016; Nic Shuibhne 2015; O’Brien 2017; Spaventa 2017). The new cases involve different legal situations from the older ones, so the Court has not needed to change formal doctrine – and certainly it treats all the cases as consistent – but tools which it used to assist mobile citizens in early cases, notably proportionality, have not been set to work in the later ones. It is then said that a certain philosophy of deep integration and transnational solidarity which fitted the earlier cases does not fit the later ones (Sankari and Frerichs 2016).

That viewpoint is compatible with the argument here. One may regret the emergence of limits to Union citizenship, but this does not tell us that the Court would have decided these cases differently in the past. To interpret the early cases in terms of decommodification and liberation of the individual from the market (O’Brien 2016; Sankari and Frerichs 2016; Spaventa 2017; Wollenschläger 2011) does not mean the Court itself ever saw them in such radical, disruptive or far-reaching terms. Given that it is generally regarded, in its case law on free movement or discrimination, as cautiously progressive, at times a little old-fashioned, somewhat market-minded, it would be rather odd if it did. Thus the early cases are compatible with various views of citizenship, but it takes the less meritorious later ones to establish which of those views is held by the Court.

There are also suggestions of doctrinal change. Lawyers are divided on this (see Davies 2016; Iliopoulou-Penot 2016; Nic Shuibhne 2015; Thym 2015; Verschueren 2015). However, the issue need not be decided here, for the argument of this article is that the Court is normatively consistent (Šadl and Madsen 2016). That in fact entails a degree of doctrinal flux, for it is notoriously hard to predict the consequences of rules: when the Court invents a rule in order to protect a sympathetic claimant, and that rule later works to the advantage of a less sympathetic claimant, it is faced with a choice between its law and principles, and normative consistency will require it to tweak the law. No practicing lawyer should be surprised by such a choice (Ruger et al. 2004).

Finally, there is the question of language. Some detect a more hostile rhetoric and tone in the newer cases. However, judicial language is chosen to explain and justify the result. Negative outcomes may be expected to involve more negative language. We cannot draw conclusions from language alone without taking account of the degree to which the facts invite those linguistic choices.

The facts as seen by the Court

The facts discussed below are drawn from the judgments and the opinions of the Advocates General. However, if the Court rejects a claim it may seem likely that it will present the facts less sympathetically. There may seem to be a question-begging bias in using judgments to judge the Court.

The facts in issue here are fairly objective ones – employment status, income, length of residence. The literature, including the very critical literature, does not dispute them – with the limited exception of the Commission v UK case, discussed below (O’Brien 2017). There is a difference between such facts and normative analyses of character or circumstances.

Nevertheless, there is power in the ability to choose which facts to present or highlight, and the risk remains that the Court’s view is not incontestable. However, what the facts as presented by the Court show is the view from the bench – how the case looks through the Court’s eyes. The central question in this article is whether, if we look at the cases through those judicial eyes, we can then make sense of their outcomes, or whether we need to turn to external factors for help.

Rise and fall

The discussion below encompasses Martinez Sala (C-85/96), Grzelczyk (C-184/99), Baumbast (C-413/99), Trojani (C-456/02), Brey (C-140/12), Dano (C-333/13), Alimanovic (C-67/14) and Commission v UK (C-308/14), in chronological order of the judgments. This is an uncontroversial list of the key cases on the residence and social assistance rights of non-economically active mobile Union citizens – the most discussed in the literature, and the ones regarded by both legal scholars and political scientists as containing the most important legal developments relevant to this field.

While there are variations in the precise legal context of the cases, they share a conceptual structure: on the one hand, a non-economically active citizen(s) asserting a right to access the host welfare system – usually financial benefits, in Baumbast the use of public health care. On the other hand, a host Member State denying this right, relying on EU law which apparently requires such citizens to be self-sufficient (usually Directive 2004/38).

In the first three cases, Martinez Sala, Grzelczyk and Baumbast, the Court used general principles of EU law – non-discrimination, proportionality and the transnational bonds that were inherent in the very idea of Union citizenship – to soften the apparently strict rules (Davies 2016; Nic Shuibhne 2015; Spaventa 2017). It emphasized the broader integrative context of the law and found that the Member States were unjustified in taking such a strict view. Not every bit of public support could be excluded.

In Trojani and Brey it broadly continued this line, leaving the final decision to the national judge but emphasizing that the self-sufficiency requirement on these citizens was not absolute, but must be tempered by proportionality.

Then, in the last three cases, Dano, Alimanovic and Commission v UK, it stopped doing this. In these cases it allowed Member States to enforce the exclusions from public support, emphasizing their need for clear and enforceable rules, in order to protect their welfare systems.

So what changed? It is not the legislative context: the Citizenship Directive was adopted between Trojani and Brey, but the directives in force for the earlier cases¹ contained essentially identical restrictions regarding self-sufficiency and access to benefits. However, at the start of its case law the Court bent over backwards to find exceptions to these restrictions, and then suddenly it stopped and embraced strict enforcement. Is there an explanation for this that is endogenous to the cases themselves, or do we need to look outside, to the structure of the Court or to its political and social context?

Reading the cases reveals a striking correlation between the deservingness of the claimant and the outcome, suggesting an explanatory rule: the Court will stretch the law when the claimant has a meritorious case.

The deserving claimant and the meritorious case

Deservingness is a loaded concept, but the literature shows that idea of the deserving recipient plays an important role in access to social benefits in Europe (Lafleur and Mescoli 2018; Spaventa 2017; van Oorschot 2006). Moreover, public ideas of who is deserving predate both the financial crisis and EU enlargement (van Oorschot 2000) and appear largely consistent across European countries (van Oorschot 2006). The essence of the deserving recipient is summed up by van Oorschot in five concepts (van Oorschot 2000): control, need, attitude, identity and reciprocity. Put more concretely, this means that questions relevant to the deservingness of a candidate for public support are:

1. whether the claim is the product of choice or circumstances; (control)

2. the consequences of approval/refusal for both the claimant and the state who is called upon; (need, reciprocity)

3. whether the claimant is doing their best/has behaved well; (attitude)

4. the degree to which they are ‘part of’ society, or distant from it: ‘us’ or ‘them’. (identity)

These criteria, as well as embodying a recognizably mainstream moral perspective, correspond well to the ones which the Court uses to determine whether or not a claim for social assistance is ‘unreasonable’.² Importantly, these criteria all derive from the early, ‘generous’ cases (Grzelczyk; Trojani; Baumbast; Brey). Later cases merely repeat them, other than a certain explication of criterion (v) below found in Alimanovic. The criteria are:

1. How long the migrant has been resident in the host state, and whether he/she has until now complied with residence conditions.

2. Whether their initial claim to have sufficient resources was honest and genuine.

3. How long the migrant is likely to need the social assistance.

4. The amount of aid to be granted.

5. The consequences for the state. The issue here is precedent – if the benefit is granted, how many others might then claim the same position, and perhaps even be attracted to the host state by the ruling?

6. The personal circumstances of the applicant. This can encompass the consequences of the denial – would it lead to e.g., a family breakup, great personal hardship etc. It can also encompass aspects of the behaviour of the applicant – have they done their best to be self-sufficient, etc.

In several cases (Martinez Sala, Trojani, Grzelczyk) the Court has also noted state inconsistencies, suggesting that bad state behaviour can also be added as a criterion: it will be less reasonable to refuse if the state has misinformed the citizen, or been inconsistent, or perhaps even dishonest. This is the only factor not obviously within van Oorschot’s framework, but that is probably because it is something only likely to arise in the context of adjudication. It is, however, hardly alien to the moral world which the deservingness criteria sketch.

The Court therefore expresses a consistent view, apparently aligned with the longstanding standpoint of the European public, and reflecting the kind of moderately traditional values that one might expect in the judiciary, that public assistance is more appropriate for individuals for whom the answers to the following questions are positive:

1. Has the claimant behaved well?

Have they been self-sufficient for an extended period? When they moved did they plan to claim benefits?

(2)	Are the consequences for them of refusal particularly harmful?

Is there some exceptional harm caused, beyond the financial consequences inherent in loss of the benefit? This could arise from personal or other circumstances.

(3)	Is the benefit limited in scope?

How long will benefits be necessary? What are the prospects for self-sufficiency?

(4)	Are the financial consequences of granting the benefit containable?

Will a precedent be created? How many people might rely on it? Could migration specifically for this purpose be the result? What are the expected consequences for particular policies, e.g., social housing, or access to education?

(5)	Are there positive outcomes for society as a result of granting the benefit?

Does the benefit maintain the status quo, or enable the citizen to become a (more) contributing member of society? Is it likely to be a good investment for the state?

(6)	Has the state behaved badly?

Does its refusal to grant the benefit conflict with earlier promises or behaviour?

The following section therefore considers the facts of the cases in the light of these questions. Does the Court actually decide according to its own expressed norms? Does the degree of deservingness explain whether individuals win?

The changing character of citizenship litigants

Ms Martinez Sala

Ms Martinez Sala went to live in Germany as a child, and had been resident for about 20 years before her lawsuit. She had worked as a young adult, but stopped around the time she had children. The legality of her residence had never been disputed. However, at a certain point the German government had stopped issuing her with residence documents, simply giving her a receipt indicating she had applied for them. This did not initially cause problems – she was treated as a lawful resident.

Then when she applied for child benefits she encountered a problem: she could only get them if she produced her residence permit. The receipt was not enough. The bizarreness of the case is that the German government conceded that Ms Martinez Sala was lawfully resident. They also conceded that lawfully resident migrants in her position were entitled to the benefit. They conceded that she had properly applied for the residence permit. Yet for reasons which they were unable to explain in the case they simply failed to issue it to her, and then used this as a justification for withholding the benefit.

It is hard to hear this story without feeling disgusted with the German authorities. Not only were they dishonest, but in denying a child benefit that they conceded she had a right to, they were putting the wellbeing of her child at risk. The Court found that Ms Martinez Sala should get the benefit.

Mr Grzelczyk

Mr Grzelczyk was a young French man who went to study at the university of Louvain-la-neuve in Belgium. For the first three years he supported himself by part-time work and loans. In his fourth and final year – note that he was completing his studies on time, something relatively unusual in continental Europe at that time – he applied for the minimex, a Belgium basic benefit for those without means or income. The local benefit authority noted that he had worked hard during his studies, but in his last year would have to write a dissertation, and do a period of training, both of which would demand much time and make it difficult to be employed as well. They granted him the minimex. However, the federal government challenged this decision on the grounds that the minimex was only for Belgians.

The facts paint a sympathetic picture. That he supported himself suggests that he did not come from a privileged background. He explained lack of parental support by saying that his father was unemployed and his mother seriously ill. When we meet him he has studied hard and successfully, and is about to obtain a university degree which will no doubt open many possibilities for him. He is studying physical education, making it not unlikely that he will become some form of teacher. All he needs is a few months of support, to get through his final stage. The view of the authorities closest to him is that he deserves it. On the one hand, these few months may open the door to a professional life, one perhaps very different from his parents. Or, if the Belgian federal government prevails, he might fail to complete his degree because he cannot afford to stop working in order to do his practical placements. Four years might be wasted and a different kind of life open up before him.

What is in the interests of Europe, or even of Belgium here? Do we feel any sympathy for Mr Grzelczyk? The Court allowed the national court to decide whether refusal would be unreasonable, but insisted it take into account the factors discussed above, rather implying that it would.

Mr Baumbast

The Baumbast family moved from Germany to the UK when Mr Baumbast got a job there. After some years he lost this job, and got another one, with a German company, working on projects in China and Lesotho. Mrs Baumbast and the children stayed in the UK, where the children were in school. Although the details are not in the case, Mr Baumbast presumably spent some time in these far-off places, and some time with his family in the UK.

Legally, Mr Baumbast had changed from being a migrant worker to being a non-economic mobile citizen. Although still economically active, his employment was no longer in the host state, so that he did not qualify as a migrant worker.

Non-economic mobile citizens and their families are required to have sufficient resources and comprehensive sickness insurance. The family’s resources were not disputed. However, two years after Mr Baumbast began his new job, when the family went to renew their residence documents, the UK government refused, claiming that they did not have comprehensive sickness insurance. A UK tribunal allowed Mrs Baumbast and the children to stay on the basis of other law, but Mr Baumbast was refused permission to remain.

The family had German health insurance, probably via Mr Baumbast’s work, and went to Germany for elective care. However, it was admitted that they had no insurance covering emergency care in the UK. Yet this is quite normal: healthcare costs are covered by the tax-funded National Health Service in Britain, and only around 10% of people have private cover.

The Baumbasts were caught in the middle of an odd dispute: the UK government thinks that non-economic migrants should have private health insurance, while the Commission disagrees and has even begun enforcement proceedings. In a strange compromise, UK does not enforce its view when Union citizens arise, but when they go to renew documents it uses the absence of insurance to justify refusal. This confusing and dishonest inconsistency is almost impossible to defend.

The Court did not go into this, but will have been aware of it. It noted that the Baumbast family had never actually used the NHS, and to throw Mr Baumbast out of the country using this argument was disproportionate.

The case is not about a benefit, but addresses the situation where a citizen is a potential burden. The same questions then arise – who is at fault, is the citizen deserving, and so on. In this case the UK behaviour was probably illegal, and certainly inconsistent, whereas the family were, on the evidence in the case, honest, integrated, net contributors to both society and the economy.

Mr Trojani

Mr Trojani was a Frenchman in Belgium. He appeared from the judgment to be struggling a little with life: while not actually claiming social assistance, he was not employed either, and spent some time living at a campsite, and then at a hostel, before ending up in a Salvation Army reintegration programme. This allowed him to live at a hostel – although he had to pay – and receive food and some pocket money. In return he had to do various jobs for 30 h a week.

Shortly after starting his programme Mr Trojani applied for the minimex, but was refused. The case raised a number of issues, but on the core issue of whether he was entitled to social assistance the Court emphasized that such refusals must be proportionate in all the circumstances, leaving it to the national court to decide if that was the case here.

This is a middle way in a case with borderline facts. We just don’t know enough about Mr Trojani to know which stereotype would fit him: doing his best to overcome a no-doubt complicated past, or the cliché of a travelling waster? If we gave him to Hollywood, which role would they assign him? What point of view would a mainstream newspaper take? Society does sympathize with those in difficulty when they try to ‘reintegrate’, but it loses that sympathy if they seem to be claiming more and trying less. The Court defers the question, but warns the state to act proportionately. Its tone is broadly sympathetic and supportive, emphasizing the standard of procedural fairness expected of the state, while rather skipping over the fact that Mr Trojani may well nevertheless lose.

Mr Brey

Mr Brey was a German who moved to Austria with his wife. Although it is not entirely clear from the case, they appeared to be of retirement age. Their income consisted of an ‘invalidity pension’ for Mr Brey and a care allowance for his wife, both paid by the German authorities. These amounted to about 1100 € per month. The case does not tell us why they moved to Austria, but they appear to have been living in the Graz region, a pretty Alpine area.

Shortly after settling in Austria, Mr Brey applied for a ‘compensatory supplement’. This is an extra income paid in Austria to those living on a low retirement or invalidity pension. On the basis of their household income, Mr Brey was entitled to an extra 326 € per month.

There was some disagreement between the Austrian authorities as to whether he was entitled to this, but finally it was decided that he was not. The reason was that he did not have ‘sufficient resources’ as the Citizenship Directive requires. As a result, he had no right of residence in Austria at all, and therefore no right to social assistance.

Mr Brey was in a difficult situation. If he had not applied for the benefit it is hard to imagine that Austria would have taken steps to expel him, or that they would have succeeded if they had tried. While his pension was not large, it seems likely that he and his wife could have supported themselves, and an income of 1100 € per month is almost certainly ‘sufficient resources’ in the sense of the directive. Yet once lawfully resident, a migrant citizen is entitled to equal treatment, so why should he not apply for the generous Austrian supplements? But in doing so he became a ‘burden on the social assistance system’ and his right of residence became precarious. He was in a Catch-22 situation, for which he can hardly be blamed: if he exercised the right of equality that he enjoyed, then that exercise undermined his right of residence (Davies 2016).

Yet one can also understand the position of the Austrian authorities. Austria is a wealthy state with excellent social provision and low levels of poverty. Even those whose incomes would be good by the standards of many states are entitled to top-ups from the public purse. However, if all foreign pensioners whose income is enough to let them get by, but below the generous Austrian thresholds, are entitled to top-ups, then Austria may become a very attractive place to retire to, and the system could plausibly be threatened. How many pensioners are there in the EU with an income between 800 and 1200 € who would find a life in Austria and a few hundred extra per month attractive? It is always a difficult empirical question whether such scenarios will play out, but the Austrian state’s fear is understandable. The legal regime of the directive is premised on the idea that if one receives social assistance this is evidence that one does not have enough to live on, but in wealthy European welfare states even those with adequate incomes may receive extra help, undermining the coherence of the law.

What should the Court do? There is no real villain here, no state that is playing dishonest games, but also no migrant that is trying to exploit – or at least there is no suggestion in the case that Mr Brey had moved purely in order to get benefits. There is, instead, clumsy law creating a difficult situation. The Court, as it does in such situations, deferred the decision to the national court, giving them its standard guidelines: only an ‘unreasonable’ use of social assistance undermines residence rights. They emphasized the need to look at all the facts and engage in an individual assessment.

This makes the judgment read quite sympathetically, and given Mr Brey’s personal situation it is easy to think that it supports him. One might think that an individual assessment of a disabled pensioner who has not behaved badly is likely to conclude in his favour. Yet the Court also restated the factors which help determine ‘unreasonableness’; how long would the social assistance be for? How much would it be? What would be the consequences for the state budget? How integrated is the applicant in the host state? All these factors work against Mr Brey: he was newly arrived, there was no prospect of his income increasing, so that the benefits were presumably permanent, and it was not implausible that he would create a very attractive precedent, creating significant budgetary consequences.

As in Trojani, the Court packed an iron fist in kid gloves: it insisted that the state follow procedure and look at all the relevant facts, but gave them plenty of grounds to expel Mr Brey and his wife.

Brey is the first case where the possibility of strategic behaviour arises. There is no suggestion that Mr Brey was doing this, but it is possible that pensioners would move to Austria in order to enjoy their supplements. By contrast, it is unimaginable that people would move to Germany as children in order to obtain child benefits when they became parents themselves, and it is unlikely that people would go and study in Belgium, and support themselves for three years, because they planned to obtain six months of minimex in their fourth year. It is perhaps conceivable that some people, from the poorest two or three Member States, might migrate to the UK in order to use the NHS, but that was manifestly not the situation in Baumbast. These cases were obviously about individuals in difficult, atypical, and genuine situations. Brey raised the first shadow of a dangerous precedent.

Ms Dano

Ms Dano was a Romanian citizen who went to live in Germany with her baby son in 2010. She lived with her sister, who provided for them both materially, according to the referring court. However, Ms Dano also received child benefit from the German authorities of about 130 € per month, and applied for further social assistance for herself. This was refused, leading to the reference.

The national court documents revealed that Ms Dano was neither working nor looking for work in Germany. Nor did she have any resources of her own. Now, it is established that ‘sufficient resources’ can come from another person, so if Ms Dano had simply lived with her sister, without making any call on public assistance, she would have had a right of residence. However, she did receive benefits, and was applying for more. Were these applications sufficient to show that she would be an unreasonable burden?

The Court’s answer is identical to Brey, but briefer: the national court must look at all the facts, and make an individual assessment. However, there is nothing in the judgment that provides much hope to Ms Dano. There is no suggestion of a temporary difficulty like Grzelczyk, or a complicated story like Baumbast, or a Member State playing games as in Sala. It looks rather like someone who moves to Germany with no resources at all, and no ambitions to work, but finds she cannot get by purely on family support, and needs social assistance. Ms Dano, as portrayed in the case, is exactly the kind of the person who was never intended to have access to social assistance or even to residence rights in other Member States.

If this inspires outrage it should not be because of the judicial reasoning, which is merely repetition of earlier cases, but because it reveals that the EU is indeed a limited project, and seems to offer relatively little to those whose need is greatest. What does Union citizenship mean for a penniless and almost uneducated single mother from the Union’s poorest state? However, there is nothing new in the case, and nothing in earlier cases to suggest that it would ever have been decided differently.

Ms Alimanovic

Ms Alimanovic was born in Bosnia, but became Swedish. She had three children, who were born in Germany, but she left that country in 1999, returning in 2010. She and her eldest daughter, who was then around 16, perhaps nearly 17, worked in temporary jobs for a little less than a year. Shortly after these jobs finished, Ms Alimanovic and her daughter applied for unemployment benefits, and for other forms of social assistance for her other two children.

The case was quite complex, but the referring court took the view that Ms Alimanovic and her eldest daughter were both job-seekers, and this was the basis for any right of residence that they might have in Germany. The European Court of Justice did not dispute this. The question for the Court was whether job-seekers had a right to social assistance.

On the face of it this is not difficult, because Article 24(2) of the Citizenship Directive explicitly provides that they do not. However, strict rules were softened in earlier cases – why not here too?

Ms Alimanovic had previously been employed, and after her work ended had maintained the status of worker for six months, as the directive provides. This gave her a right to social assistance. But then the six months was over and she became simply a job-seeker again, with no social assistance rights. Suddenly her income was gone. Was that not unreasonable? Should the six-month limit not be extended a bit? Should there not be a personal assessment?

Yet what would be the personal circumstances that might justify looking at her situation differently? Perhaps if she had an offer of a job that was to start in a month, or if she was about to obtain some important qualification, and perhaps if the loss of the benefit for that month or so would have particularly dramatic consequences, she might have had a good case. But it looked as if she was simply challenging the rule itself: Six months? Really? Can’t I have some more? One may sympathize, but there is no precedent for such an approach to the law.

Ms Alimanovic certainly faced harsh consequences as a result of applying Article 24(2), but they are exactly the consequences that this law envisages: that work-seekers should have to support themselves, and if they cannot they should return to their home states. Unlike Grzelczyk or Baumbast there was no feature that made her case distinctive and gave a reason for exceptional treatment.

If she had worked for longer, this might have been different – one can imagine that a history of several years of employment might make a court slower to cut off the income to a mother of three. Yet then the Directive would have allowed her benefits for a longer period anyway. In Grzelczyk the Court emphasized that the logic of giving him social assistance was primarily because it was for a limited period, and temporary loosening of a requirement is a different matter than permanently letting it go. Yet as the Court in Alimanovic said, that extension of a helping hand through a difficult period is precisely what the directive intends with its extension of worker status for six months after work has been lost. Ms Alimanovic had been helped through her temporary difficulties, and was now in the situation that Mr Grzelczyk would be when he approached graduation: time to stand on her own two feet again.

It should be noted that Ms Alimanovic’s right of residence was not questioned – she was free to remain in Germany looking for work. Moreover, she may have had an additional right of residence, and even a right to benefits, arising via her children (Iliopoulou-Penot 2016) – something that was, intriguingly, not referred by the national court, nor discussed by the Court.

Commission v UK

This case is an enforcement action rather than a reference, and so does not involve a particular individual. That makes it harder to apply the frame used in this paper. However, because the case is much discussed as a restrictive example, it deserves mention here.

The case concerned the UK practice of asking mobile citizens applying for benefits to first prove they are lawfully resident – workers, family members, or in possession of resources, for example. The Court found that provided this was only done when there was some genuine doubt about their situation it was permissible. It further found that the Commission had not shown that the UK checks went beyond this, or were disproportionate. The case was therefore dismissed.

The controversies around this decision are largely factual, and to do with whether the Court understood what the UK policies and practices really were (O’Brien 2017). The case was decided just ten days before the Brexit referendum in the UK, which raised the suspicion that the sympathetic interpretation of the UK’s policy was a clumsy attempt to manipulate public opinion in the greater good, a suspicion which only became stronger when the Court ruled on the day before the 2017 Dutch elections that headscarves could be banned in the workplace (C-157/15 Achbita; C-188/15 Bougnaoui). It may be hoped that this suspicion is misplaced.

Certainly the timing is striking, and neither Machiavellianism nor cowardice can be excluded. Yet the judgment is nevertheless essentially orthodox: since Martinez Sala the Court has maintained that equal treatment regarding benefits is only for the lawfully present. If the Court had ruled differently in Commission v UK then even those with no right to be in the UK would have been able to claim benefits there, a position that is somewhat of a challenge to defend.

The more substantive question raised by the case is how lawfulness is to be demonstrated, particularly in the anarchic context of UK public administration (O’Brien 2017). The Court did not go into this in any detail, but it did emphasize that legality testing must be neither systematic nor disproportionate. In language as in substance the judgment is a corollary of what was decided before.

The relationship between case outcomes and facts

The table indicates the outcome of each case and the ways in which the claim was deserving or not. The first three rows correspond to whether the Court clearly indicated that the benefit should be awarded (win) or that there was no right to the benefit (lose) or whether it left this assessment to the national court (discretion). The subsequent rows correspond to the questions in part III(ii) above. The columns correspond to the cases discussed.

Table

	Sala	Grzelczyk	Baumbast	Trojani	Brey	Dano	Alimanovic	C v UK
Win	√		√
Lose						√	√	√
Discretion		√		√	√
1.Good behaviour	√	√	√	?	√	x	?	n/a
2.Exceptional Harm	√	√	√	?	x	x	x	n/a
3.Limited time	√	√	√	?	x	x	?	n/a
4.Limited cost	√	?	√	?	x	x	x	n/a
5.Positive outcomes	√	√	√	?	x	x	?	n/a
6.State at fault	√	X	√	?	x	x	x	n/a

Conclusion

A given judicial decision may be influenced by many factors, but one of them is the particular facts of the case – not all litigants claiming a certain right have an equally good factual basis for their claim, as the discussion above shows.

If the distribution of meritorious and less meritorious cases is essentially random, then changing trends in which side wins before the European Court of Justice may well be the result of changing interpretations of the law – what one might call changing judicial preferences – and it will become worthwhile to try and explain these interpretative variations, either through external influences or factors internal to legal doctrinal debate.

However, such randomness cannot be assumed. Just as there may be trends at the Court, there may also be trends in the nature of litigants, and the behaviour of national judges and authorities. Trends in outcomes in Luxembourg may therefore be (partly) the product of trends at national level – just as it seems plausible that the cases on social assistance for non-economically active mobile citizens are partly explained by changing migration patterns, and partly by national authorities seeking to circumscribe a difficult policy area by challenging unmeritorious claimants (Kramer 2016; Kramer et al. 2018). It may be, to borrow a phrase, that national authorities and judges read the morning papers (Blauberger et al. 2018).

As a result, we cannot draw conclusions about what comes out of the Court without taking account of what goes into it. Sometimes, as in the cases examined here, what goes in will provide an overwhelmingly plausible explanation of the outcomes on its own.

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

Additional information

Funding

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

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.