Susanne K. Schmidt

Beyond Compliance: The Europeanization of Member States through Negative Integration and Legal Uncertainty

Abstract Europeanization – that is the domestic impact of European integration on member states – is rightly attracting increasing attention, given the extent to which European integration determines domestic policies. However, the debate on Europeanization focuses predominantly on the conditions for successful compliance with European secondary law. This note argues that this focus insufficiently captures the implications of member states being part of a multi-level system. It is largely overlooked how negative integration (market making) and legal uncertainty about the implications of European law constrains domestic policy making.

Introduction – the European Court of Justice and legal integration: perpetual momentum?

The European Court of Justice (ECJ) has played an indispensible role as a motor of European integration. In judgments addressing the balance between national and supranational authority, the European Court – not unlike high courts in other federal-type systems (Bzdera 1993; Halberstam 2008; Volcansek 2008) – has demonstrated a bias in favour of centralization. Again and again, the ECJ has demonstrated the independence and the authority necessary to push the scope and depth of European integration beyond what European Union (EU) law-makers had intended. The literature on the European legal integration establishes a number of reasons for this marked bias towards supranationality: there is a comparatively weak legislator at the supranational level and divisions between EU law-makers generate gridlock and open up space for the ECJ to pursue its pro-integration preferences (Pollack 2003; Stone Sweet 2004: 7–9; Tallberg 2002); European lawyers worked early to establish the supremacy and direct effect of European law (Vauchez 2008); national lower courts have had incentives to refer cases to the ECJ through the preliminary ruling system (Alter 2001); private parties had incentives to make legal claims based on their economic rights and other individual rights under European law (Cichowski 2007; Conant 2002; Kelemen 2011). Together these factors have sparked a self-reinforcing process of judicialization that has expanded ECJ power and deepened integration (Stone Sweet 2004; Stone Sweet and Brunell 1998). Some observers fear that in privileging integration over the safeguarding of national competences, the Court’s jurisprudence may threaten the maintenance of a politically acceptable balance between European-level and national competences in the EU. Political controversy surrounding the ECJ’s major integrative decisions is, of course, nothing new. Powerful national leaders from French President Giscard d’Estaing in the 1980s to German Chancellor Kohl in the 1990s have publicly attacked the court for its activism and overreach. In recent years, however, the expansion of EU law has led it to impact ever more politically sensitive issues. And today EU law treads on this sensitive terrain in a period when

Who cares about nationality? The path-dependent case law of the ECJ from goods to citizens

The role that the ECJ plays in European integration has been much discussed by political scientists. Less is known about how case law develops. In this contribution, I give a historical–institutionalist account and argue that path dependence explains the course that case law takes. Litigants provide positive feedback in this process, aiming to strengthen their rights by transferring legal arguments from one area to the next, leading to a convergent interpretation of the fundamental freedoms. The contribution traces this development, analysing how legal arguments were transferred from goods markets to the free movement of workers and citizenship as a result of positive feedback to a distinct legal interpretation. I discard alternative explanations that explain case law by drawing on the preferences of member states or judges.

Judicial Europeanisation: The Case of Zambrano in Ireland

The Court of Justice of the European Union is an important motor of integration and is said to be particularly strong in those cases where the Council shows an inability to act. What is the relevance of the Court to social Europe? Europeanisation studies analyse how member states change due to European integration. Judicial Europeanisation is a topic that is under-explored in the literature. Using a case-study approach, this paper analyses the Zambrano case, one of the most notable recent cases of judicial activism of the CJEU with regard to EU citizenship rights. Although the literature often assumes that member states only reluctantly embrace the requirements of case law, the Irish government immediately obliged its administration to implement the required changes. Analysing this case in greater detail and comparing it to the responses of several other member states promises to shed some light on the under-explored question of how Europeanisation through case law proceeds, and what the Court may contribute to social Europe.

Jenseits von Implementierung und Compliance — Die Europäisierung der Mitgliedstaaten

Die Verlagerung der Europaforschung von Fragen der Integration starker hin zu Fragen des politischen Systems der EU und dessen Auswirkungen auf die nationale Politik (policies, politics und polities) zeigt sich besonders deutlich am Wachstum der Europaisierungsliteratur (Green Cowles et al. 2001; Featherstone/Radaelli 2003). Trotz der Vielfalt europaischer Steuerungsmodi und der Breite der von europaischer Integration beeinflussten Politikfelder wurde unter dem Oberbegriff „Europaisierung“ die Entwicklung eines einheitlichen Forschungsprogramms unternommen. Verschiedene Autoren haben Typologien von Europaisierungsmechanismen aufgestellt und dabei unter anderem nach den zugrunde liegenden Formen der Integration, den vorherrschenden Steuerungsmodi und nach jeweils typischen Politikfeldern differenziert (Knill/Lehmkuhl 2002; Bulmer/Radaelli 2005).

Squaring the circle with mutual recognition? Demoi-cratic governance in practice

ABSTRACT This contribution analyses the experience of the European Union (EU) with mutual recognition in the single market for goods and the European Arrest Warrant (EAW) as examples of multi-centred governance. In how far is it possible to respond to the functional needs for transborder mobility while protecting the choices of demoi and individual rights? Does the experience in the EU show that recognition of diversity is an alternative to harmonization and unity? The single goods market has developed far-reaching vertical elements falling short of a multi-centred regime. With a duty to recognize all rules, it may become meaningless to determine own rules. The EAW, in contrast, operates as a horizontal system but violates the rights of individuals, while honouring those of demoi.

Failing on the social dimension: judicial law-making and student mobility in the EU

ABSTRACT National welfare states and free movement rights are in tension in the European Union (EU). Yet, despite potential free-riding dynamics, fully developed welfare states appear remarkably resilient. Two explanations can account for this in the literature: institutional heterogeneity of welfare states leads to differential impact of free movement, and contained compliance with EU legal obligations means that non-discrimination provisions exist mainly on paper. By example of higher education and student financial maintenance, we show that under adverse conditions, free movement rights need exceptions to not undermine national welfare. Moreover, the incapacity of the European Court of Justice to provide clear and stringent guidelines in regards to EU students’ access to student benefits, confronts potential beneficiaries with significant legal uncertainty. This introduces new inequalities among EU students. Our analysis shows the limits of judge-made law in furthering social justice.

Free movement and equal treatment in an unequal union

ABSTRACT The European Union’s (EU) fundamental principles of free movement of persons and non-discrimination have long challenged the traditional closure of the welfare state. Whereas the relationship between the EU and the welfare state appeared largely reconciled before the grand enlargement of 2004, economic downturn and politicisation question the nexus anew. This collection explores the current dynamics, scope and limits of free movement and welfare equal treatment for EU citizens on the move. The different contributions bring together the normative, legal and political developments and about-turns which dynamically square the circle of pan-European social solidarity. The collection covers the new politics of EU cross-border welfare but also the structuring role of the European Court of Justice. It includes the political economy of free movement as well as its outputs and outcomes in selected member states. Finally, it analyses the mechanisms that activate attitudinal polarisation on intra-EU migration and welfare.

The European Court of Justice and its political impact

Abstract This article reviews recent advances in the study of the European Court of Justice (ECJ) and its political impact at the European and member state levels. New quantitative as well as qualitative analyses show with great empirical precision that member state preferences guide the Court. The article summarises these findings, but argues that greater attention needs to be given to the (over-)constitutionalisation of EU law in order to fully capture the political impact of ECJ jurisprudence. Even if European judges are less activist than is often assumed and individual decisions are more restrained in the face of member state opposition, incrementally, case law evolves in a highly expansive fashion. And, exercising caution regarding unrealistic expectations about quasi-deterministic judicial law-making, it is found that the Court’s constitutionalised jurisprudence impacts heavily on European and member state policy-making.

Building Social Europe Requires Challenging the Judicialisation of Citizenship

Which rights should European citizenship entail to protect the achievements of European integration, while overcoming its pitfalls? Should we aim to ‘add stuff’, as Ferrera suggests, or rather follow Joppke’s plea for non-exclusive citizenship rights? I agree with Ferrera’s diagnosis that EU citizenship has an isopolitical bias, it horizontally opens nationally shaped (and financed) welfare systems to citizens from other member states. However, in his ‘detecting of the flaws’ he overlooks the largely judicial genesis of citizenship rights, which are crucial for understanding the shortcomings of EU citizenship.