Explaining Welfare State Closure

Courts at national and EU levels are the major drivers giving more room to the social dimension of freedom of movement. Legal research indicates that the case law of the European Court of Justice (CJEU) points to a rather permissive interpretation of primary and secondary EU law with regard to EU migrants’ access to social rights and benefits (Rogers et al. 2012, 60-61; Verschueren 2012). An example of such a CJEU judgment is the case of Grzelczyk, in which the French student Rudy Grzelczyk was found to have a rightful claim to access to the Belgian social assistance scheme ‘minimex’ on grounds of non-discrimination (C-184/99). Also noteworthy in this regard is the case of the Spanish national Maria Martinez-Sala, who lived in Germany as a permanent resident. Although she was unemployed, the CJEU found her to have a rightful claim to child benefits (C-85/96). In both cases, the Court extended eligibility for benefits to economically inactive persons on grounds of non-discrimination. This is the CJEU’s key justification for EU movers’ welfare state access, their equal treatment with nationals and the prohibition of discrimination on grounds of citizenship (Art. 18 TFEU).[1] At the same time, the Court would only justify access to benefits with regard to an individual assessment of the claimant’s degree of integration in the host member state and the nature of the benefit in question (Wollenschlager 2011, 23). An example of this reasoning is the Dano case (C-333/13), in which the advocate general of the CJEU pleaded against a claim for granting access to social assistance when a Romanian citizen claiming social assistance in Germany was found not to be eligible on grounds of missing ties to the country of residence (C-333/13 para 152). Accordingly, Wollenschlager (2011, 22) sees a ‘limited claim to social solidarity’ inferred by CJEU judgments and finds the claims of economically active EU citizens for social solidarity to be much stronger than those of the inactive. Others view EU citizens’ access to nationally defined welfare states much more critically. For example, Scharpf criticized the CJEU’s ‘refusal to consider national fiscal concerns as a potential limit on the exercise of European liberties’ (2009, 194).

So far, scholarly analysis on member state responses to the potential and actual access of EU citizens to their welfare states is scarce. Following a judicial politics explanation, member states aim for changes in their welfare regimes because of legal uncertainty created by CJEU interpretations of EU legislation. Member states re-regulate EU legislation in order to minimize the impact of Court jurisdiction on their domestic welfare administrations (Blauberger and Schmidt 2014, 3). In light of underdetermined EU legislation and an increase in permissive Court judgments, this argument is convincing. Still, member state responses can be different, aiming for more or less domestic re-regulation (Groenendijk 2013). Therefore, this article accounts for member state variations in terms of the respective welfare system that must cope with EU citizens’ right to equal treatment. Accordingly, the respective type of welfare system is closely scrutinized in explaining and assessing the scope of change that member states aim for. In fact, the extent of benefits that EU citizens can receive is determined by the structural conditions of the respective welfare systems of member states.

Drawing a relationship between welfare state type and benefits accessible for immigrants does not reinforce the ‘welfare magnet’ hypothesis (Borjas 1999).[2] If the latter were to be researched, EU migrants’ decisions and not member state policy change would need to be analyzed. Policy change can be based on actual or perceived welfare state access of EU citizens. This means that welfare state closure can be reactive as much as pre-emptive. The notion of ‘welfare state type’ builds on the idea that different welfare states perform differently with regard to non-nationals’ rights of access (Sainsbury 2006). As for this specific research question, the focus is on benefits accessible by economically non-active or only partially active EU citizens. Hence, it is assumed that universalistic and residence-based systems, such as those of the Nordic welfare states, offer access to a wide range of benefits to the EU migrant who lacks the status of EU worker (Brochmann and Skevik Grodem 2013, 62). In contrast, fewer benefits should be offered in more conservative welfare regimes that base benefits on contributions paid and on work performance (Sciortino 2013, 82). The ‘liberal’ welfare state providing for means-tested assistance on a rather moderate scale is the third welfare state type to be explored. Compared to the universalistic and conservative type, the means-tested component of the liberal system and its tax base provides rather easy access to non-contributory benefits (Menz 2006, 401-403). For analytical purposes it is convenient to neatly separate welfare state types. However, Obinger et al. (this volume) also observe convergence among these types. Accordingly, the empirical section of this chapter assesses how the existence, scope and accessibility of non-contributory benefits for EU migrants determines member state responses.

  • [1] Among others cases that point in a similar direction: C-140/ 12 (Brey), C-456/ 02 (Trojani)C-413/99 (Baumbast).
  • [2] With regard to EU member states, Menz clearly disagrees with the hypothesis that generouswelfare states would draw more immigration (2006, 395).
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