Free movement, the welfare state, and the European Union's over‐constitutionalization: Administrating contradictions
| DOI | http://doi.org/10.1111/padm.12313 |
| Date | 01 June 2017 |
| Author | Susanne K. Schmidt,Michael Blauberger |
| Published date | 01 June 2017 |
ORIGINAL ARTICLE
Free movement, the welfare state, and the
European Union’s over-constitutionalization:
Administrating contradictions
Michael Blauberger
1
|Susanne K. Schmidt
2
1
Salzburg Centre of European Union Studies,
Salzburg University, Austria
2
Institute for Intercultural and International
Studies (InIIS), University of Bremen, Germany
Correspondence
Michael Blauberger, Salzburg Centre of
European Union Studies, Salzburg University,
Moenchsberg 2, Salzburg 5020, Austria.
Email: michael.blauberger@sbg.ac.at
The European Union (EU) has to reconcile free movement rights
with national welfare states. Case law of the European Court of
Justice (ECJ) has broadened rights to welfare of economically inac-
tive or marginally active EU citizens. Applying the Court’s jurispru-
dence, which is vague and specific at the same time, poses serious
challenges for national administrations. Vague criteria for individ-
ual assessments have to be translated into mass procedures. And
legislative corrections of the case law are often foreclosed given
the EU‘s skewed separation of powers and the over-
constitutionalization of European law, where crucial policy choices
are taken by the Court’s Treaty interpretation. We compare the
British and the German approaches and show that ECJ case law
impacts through different channels, but triggers similar challenges
for national administrations.
1|INTRODUCTION
With supremacy and direct effect, as established by the European Court of Justice (ECJ) in the early 1960s, the
European Union (EU) received a constitution, in all but name. Case law of the Court has been animportant driver of
European integration. In developing this constitution of the EU further through different rulings, the ECJ influences
EU legislation that has to follow its Treaty interpretation (Davies 2016). Largely ignored in research so far, being
directly effective, case law of the Court also impacts member state administrations.
In this explorative study we ask and analyse how ECJ case law structures member states’administrative prac-
tice in a policy field with high political salience: the access of newly settled EU citizens to non-contributory social
benefits. Granting welfare benefits to recently arrived EU citizens is politically contentious. By picking this area, we
have good reason to assume that if member state administrations follow ECJ case law here, it will also matter
elsewhere.
We show that, compared to judicial–administrative interactions at the national level, European case law poses
particular challenges for national administrations. Nationally, an administration applies laws that are incomplete con-
tracts, being subject to judicial review. The judiciary fills in legal gaps incrementally, increasing legal certainty for
DOI 10.1111/padm.12313
Public Administration. 2017;95:437–449.wileyonlinelibrary.com/journal/padm© 2017 John Wiley & Sons Ltd437
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