Transnationalization and the judicialization of welfare (TransJudFare)

TransJudFare deals with two challenges for welfare states in the European Union (EU): the transnationalization of citizenship and welfare rights and the judicialization of politics. European case law significantly broadens the eligibility of non-economically active EU nationals to non-contributory welfare services. Yet while these rights and their potential are widely discussed, there has been no systematic study of their actual impact on member states welfare states, the gap that this project aims to fill. TransJudFare focuses on social assistance measures and study grants and asks how member states respond to European case law at the level of lower courts, the administration, and the legislature. Teams of political scientists and lawyers in four member states will map changes in five western EU member states according to a unified approach, joining forces in the analyses along different dimensions. Austria, Denmark, Germany, the Netherlands and the UK are chosen as they are all targeted by migration flows but differ in important respects such as welfare state type and judicial system. By mapping and explaining reactions to case law, TransJudFare will enrich the political science literature on Europeanization, and law scholars analyses of the workings of the integrated European court system. TransJudFare cuts across several core themes outlined in the Welfare State Futures call, addressing the question of social citizenship, increased heterogeneity among EU member states, the new politics of the welfare state, and potential shifts of welfare responsibility to the European level.

TransJudFare examined how Member States of the European Union (EU) implement case law of the European Court of Justice (ECJ) in the field of social citizenship, i.e. free movement of persons and their cross-border access to social benefits. It focused on non- contributory benefits, such as social assistance, in the following five Member States: Austria, Denmark, Germany, the Netherlands, and the United Kingdom. The ECJ had for a long time extended the access of non-active mobile EU citizens to social benefits. Expectations were raised that the ECJ created a social Europe. Yet, scholars have not studied how Member States absorbed the law and whether one would still find a social Europe there. As TransJudFare found, expansive case law is not reflected in Member States practice. The latter have increasingly contained the impact of the ECJ and interpreted its judgments in a restrictive manner. Consequently, non-active EU citizens, and increasingly also those in atypical employment relationships, have been widely excluded from the welfare system of their Member State of residence. Their residence is, at the same time, tolerated. Those EU citizens thus find themselves in a precarious situation and enter other Member States at their own risk. The project further pointed to the fact that ECJ case law was first and foremost a burden for national authorities. The latter are confronted with legal uncertainty as the law is very vague and thus does not point out clear limits of solidarity. Moreover, case law entails a high workload as it demands costly case-by-case assessments. Contrary to expectations of public administration, case workers rather search for signals from above, i.e. domestic laws, superiors, or courts, which they can follow, instead of exploiting the leeway that EU law leaves them. The roads that Member States take when implementing EU law thus differ, but they all lead to restrictions. The party-political environment cannot account for the respective interpretation of EU law. Above all, the topic of social citizenship has dramatically gained attention in public and was increasingly discussed in a negative way under headings such as social tourism. This change in the broader political mood has finally influenced the ECJ, which has been following a more restrictive line of jurisprudence since 2014. In short, the project contributes to special literature on social Europe and Union citizenship but also to a more general one on Europeanization and public administration as well as research on the European Court of Justice and the impact of domestic courts. Furthermore, it confirms that migration within the EU is not an economic problem, but shows that it constitutes a legal and a political problem.