Alexander Hoogenboom, PhD, MSc. LL.M. Senior Policy Officer at the Dutch Healthcare Authority and associate researcher at the Institute for Transnational and Euregional cross border cooperation and Mobility, Faculty of law, Maastricht University. The opinions presented in this paper are solely those of the author.
Introduction
Some have interpreted recent Court of Justice rulings on EU citizens’ access to benefits as a restrictive shift compared to earlier decisions, possibly influenced by rising populism. However, an article by Davies in a special issue of the Journal of European Public Policy offers a fresh perspective on this supposed shift. Davies questions whether the Court has become stricter, favoring Member States over EU citizens, due to the rise of populism in European politics. Contrary to prevailing scholarly views, Davies argues that the Court has remained consistent, attributing perceived differences in recent rulings to the claimants’ reduced “deservingness” of benefits from host Member States. He posits that the nature of the cases explains the outcomes.
To support this argument, Davies employs a “deservedness” measurement methodology based on factors like the applicant’s behavior, potential hardship if benefits are denied, societal costs associated with granting benefits, whether granting benefits guarantees specific positive outcomes, and if the state bears any responsibility for the claimant’s situation. Higher “deservingness” increases the likelihood of a favorable outcome for the applicant.
Davies applies these criteria to various cases, demonstrating that individuals like “Dano” (unemployed, unintegrated, lacking self-support) appear less deserving of benefits than those like “Sala” (long-term legal resident denied child benefits due to technicalities).
However, this approach raises concerns. It’s debatable whether publicly available information on EU law decisions allows for accurate application of the proposed test, especially since the publication of Reports for the Hearing ceased in 2012. Additionally, as Davies acknowledges, negative outcomes can influence the presentation of facts to support the final judgment.
Furthermore, “deservedness” is subjective. The perception of a young EU citizen pursuing higher education in another Member State can vary: a self-improving future contributor or a welfare-exploiting individual.
The primary concern, however, is the methodology’s application to an incomplete dataset of cases, potentially influenced by selection bias due to the focus on “most discussed” cases.
Grzelczyk Revisited: The Case of Förster
Davies uses the Grzelczyk case to support his thesis, highlighting the sympathetic circumstances of a hardworking young Frenchman residing in Belgium who sought financial aid to complete his studies. The Court, while leaving the final decision to the national court, seemed to support his entitlement.
However, the Court wasn’t as generous in Förster. Jacqueline Förster, a German national residing in the Netherlands since March 2000, enrolled in educational programs and worked part-time. After a period of full-time practical training, she experienced a gap in employment before graduating. The Dutch authorities later demanded repayment of study maintenance assistance received during this period.
Ms. Förster seemingly mirrored Mr. Grzelczyk’s circumstances. Applying Davies’ matrix reveals: good behavior with self-support and societal contributions; potential hardship if benefits were denied; a limited support period; arguably limited support costs; positive outcomes through contributing to Dutch society post-graduation; and potential state fault due to delayed benefit recovery. Additionally, her relationship with a Dutch national and fluency in Dutch are factors the Court considered relevant in other cases.
Based on Davies’ methodology, Ms. Förster should have been successful. However, she lost her case despite the Advocate-General’s suggestion to consider the circumstances. While the EU citizens’ Directive 2004/38 influenced the conclusion, the Court didn’t “bend over backwards” to find exceptions as anticipated.
A Shift in Direction: Commission v Austria and Commission v the Netherlands
The cases of Commission v Austria and Commission v the Netherlands present further discrepancies. Both involved travel benefits for students in higher education. In 2012, Austria argued it could deny benefits to EU citizens without permanent residency, but the Court ruled that all enrolled students should have automatic access.
Applying the matrix is difficult, but the Court didn’t seem swayed by potential good behavior, limited benefit duration, cost considerations, or exceptional harm. Despite this apparent lack of “deservingness,” the hypothetical beneficiaries received a favorable outcome.
Conversely, in 2016, the Court reached the opposite conclusion in Commission v the Netherlands concerning a similar benefit. Despite established case law rendering national benefit classifications irrelevant, the Court used this to differentiate the case from Commission v Austria.
These cases present conflicting outcomes despite similar circumstances and hypothetical beneficiaries. While the Court formally distinguished the cases, both remain legally valid.
Conclusion
While Davies’ line of inquiry is intriguing, it struggles to explain the inconsistencies in Förster and the Commission v Austria/Netherlands cases. Seemingly deserving applicants are rejected, and similar benefits receive different legal treatment within a short timeframe.
Two explanations emerge: either the Court lacks consistency, disproving Davies’ hypothesis, or the “deservedness” matrix is flawed. The existence of both Commission v Austria and Commission v the Netherlands as “good law” suggests the former.
Ultimately, claiming normative consistency from the Court of Justice based on Davies’ analysis appears unfounded.
Barnard & Peers: chapter 13
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