Cjeu Representative Police Pull On Eu Citizenship: Normatively Consistent? Unlikely! - A Reply To Davies’ ‘Has The Courtroom Changed, Or Convey The Cases?’
May 07, 2018
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Alexander Hoogenboom, PhD, MSc. LL.M. Senior Policy Officer at the Dutch Healthcare Authority together with associate researcher at the Institute for Transnational together with Euregional cross edge cooperation together with Mobility, Faculty of law, Maastricht University. The seat taken inwards this paper only reflects the views of the author.
Introduction
Recent instance constabulary of the Court of Justice on European Union citizens’ access to benefits has been seen past times about equally a restrictive plough compared to prior instance law, inwards reply to a ascent inwards populism. However, the article past times Davies inwards a recent special number of the Journal of European Public Policy is to endure commended for its master copy accept on this alleged ‘turn to restrictiveness’. The goal of his article is, equally I encounter it, questioning whether the Court has indeed of late go stricter (in the feel of to a greater extent than State-friendly, less Union citizen-friendly) inwards reply to the populist plough inwards the European political landscape. In that vein, Davies submits, reverse to what he sees is the mind thrust inwards the scholarship, that the courtroom has been ‘normatively consistent’ (see also this research paper he authored) together with that the perceived divergence inwards recent litigation outcomes from the golden years of Union citizenship are due to the litigants beingness less ‘deserving’ of access to benefits provided past times the host Member State: ‘what goes inwards volition render an overwhelmingly plausible explanation of the outcomes on its own’.
This declaration is supported past times relying on a methodology for standard the ‘deservedness’ of the litigants based on a laid upwards of indicators: the ‘good behaviour’ of the applicant, the possibility for exceptional impairment should the create goodness endure denied, the possible toll to guild resulting from the grant of a create goodness (e.g. because it is long-term or applies to a large category of persons), whether granting the create goodness would mandate a item positive effect together with whether the State was somehow at error for the specific conundrum that the litigant finds him or herself in. The to a greater extent than ‘deserving’ (high contribution to society, depression cost), the greater the likelihood of a litigant-positive result.
Applying these criteria to a alternative of instance law, Davies proceeds to present that indeed, the Dano’s (never worked, never integrated, lacked resources for self-support) of the ground seem to endure less deserving of benefits than the Sala’s (long-term legal resident, kid create goodness denied due to a technicality past times an inconsistent state). (On the Dano instance – the starting fourth dimension judgment showing the perceived plough toward a stricter approach – encounter the word here).
There are, however, a few issues 1 could accept amongst this approach. In part, it is questionable whether the facts equally available to scholars of European Union constabulary decisions allow 1 to accurately apply the proposed attempt – peculiarly given that the publication of the Reports for the Hearing was abolished since 2012 (see also para 119 of the AG see inwards Breyer). This is exacerbated, equally Davies admits, past times the fact that a negative effect throws its shadow forwards: 1 together with so tends to introduce the facts inwards such a way equally to back upwards the later conclusion.
In part, it is questionable whether deservedness is objectively verifiable: after all, 1 could also fence that the ascent of populism or say an economical crisis – the ‘times nosotros alive in’ – precisely render a unlike variety of lens through which to see the migratory Union citizen. The same fresh-faced youth enrolling inwards higher pedagogy inwards a Member State unlike from the 1 of his nationality tin endure cast equally a self-improving, futurity productive fellow member of that guild (compare to Gravier, para 24) or equally a welfare-abusing, locust-like animate beingness eating his or her fill upwards together with later returning from whence he or she came (see the mind arguments past times Kingdom of Belgium together with Republic of Austria inwards the the judgment inwards Bressol).
However, the mind challenge I would similar to flat is that the methodology suggested is applied to an incomplete ‘data set’ (the cases), inwards purpose due to alternative bias (the focus inwards the article on the cases ‘most discussed’).
Grzelczyk past times about other name: The curious instance of Förster
The instance of Grzelczyk is amid those used past times Davies to back upwards his thesis: his item circumstances ‘paint a sympathetic picture’. Influenza A virus subtype H5N1 hard-working immature Frenchman, resident inwards Kingdom of Belgium for about fourth dimension together with whose claim to fiscal back upwards destination his in conclusion few months of report would seem altogether reasonable. Indeed, the Court, spell leaving it to the national courtroom to brand the concluding decision, seemed to suggest he should endure so entitled.
Nonetheless, the Court was non so generous inwards Förster. Jacqueline Förster was a High German national who grew upwards inwards a town non far from the Dutch border. She moved to together with resided inwards the Netherlands from March 2000 onwards – partly to endure amongst her Dutch boyfriend. There, she enrolled into a instructor preparation programme together with later inwards a course of report on educational theory at the Hogeschool van Amsterdam. In the menstruation 2000-2002 she undertook diverse part-time jobs, until she engaged inwards full-time paid practical preparation at a Dutch schoolhouse providing secondary pedagogy for children amongst special needs (October 2002 – June 2003). After her practical preparation she did non engage inwards gainful occupation until July 2004. She graduated from her course of report that summer.
At stake was the intermezzo period: the Dutch Student Benefit Authority (then called IB-Groep) assessed inwards 2005 that she had non been eligible for report maintenance assistance inwards the instant one-half of 2003 together with ordered her to repay the amounts received.
It would seem to me that Ms. Förster ticked practically the same equally mr. Grzelczyk. Measuring her ‘deservedness’ according to the matrix suggested past times Davies nosotros find:
- Good behaviour: self-support initially (three years), enrolled inwards studies together with contributing to Dutch guild fifty-fifty during her studies inwards her practical preparation period. Advocate-General Mazàk moreover made the explicit betoken that she did non seem to have got moved amongst the goal of claiming benefits.
- Exceptional harm: Although the withdrawal of the create goodness was retroactive, when assessing her correct to access the create goodness equally matters stood inwards 2003 1 could plausibly maintain that, equally amongst Grzelczyk, non-access to the create goodness would have got made the completion of the score much to a greater extent than difficult.
- The back upwards requested covered only a express time: at number was a six-month menstruation only.
- Limited toll of the support: As amongst Grzelczyk, this aspect is hard to estimate.
- Positive outcomes: the completion of the score would enable her to contribute to Dutch guild together with economic scheme equally a teacher.
- State at fault: One could brand the declaration that given the fact that they had initially granted her the create goodness together with only much later (some 1 together with a one-half years) took the concluding determination to recover the amount, should count against the Dutch state.
Finally, inwards add-on to these elements from Davies’ deservedness matrix, the applicant had a human relationship amongst a Dutch national together with given her work, presumably, spoke fluent Dutch – both elements that the Court inwards other cases has flora relevant when assessing eligibility to benefits (see Prinz together with Seeberger, for instance).
All inwards all, 1 would assume, from the methodology applied that this applicant should endure successful, or that should have got led to a ‘discretionary-result-with-a-hint-in-favour-of-the applicant’. Yet, she categorically lost her case, notwithstanding the proposition past times the Advocate-General to consider the circumstances of the instance along the lines suggested above. Yes, the conclusion was (partly) mandated past times the European Union citizens’ Directive 2004/38, but the Court for sure did non ‘bend over backwards to uncovering exceptions to [this] restriction’ equally his matrix would predict.
The large turnaround: Commission v Austria together with Commission v the Netherlands
The cases of Commission v Austria together with Commission v the Netherlands are perchance fifty-fifty to a greater extent than glaring. The number concerned a move create goodness aimed at students attention higher education. In the Austrian case, decided inwards 2012, Republic of Austria argued that it could reject access to the create goodness where the Union citizen inwards query had non yet obtained a correct to permanent residence (a five-year prior residence requirement inwards practice). In contrast, the Court flora that all persons enrolled inwards higher pedagogy should have got automatic access.
The instance is somewhat hard to lucifer into the matrix, but intuitively 1 could fence that the Court was non swayed past times the hypothetical skilful demeanour of potential beneficiaries (no prior residence requirements, no integration), nor was the create goodness for a express fourth dimension (it could in conclusion the entire report period), all persons enrolled inwards higher pedagogy persons were eligible (no ‘limited costs’) together with it is hard to imagine an ‘exceptional harm’ had the create goodness been denied to the hypothetical applicant. Notwithstanding this apparent lack of deservedness, however, a positive effect for the hypothetical beneficiaries.
In 2016, inwards Commission v the Netherlands, the Court reached the opposite conclusion. The create goodness at number was inwards all respects the same equally at stake inwards Commission v Republic of Austria (Table taken from A. Hoogenboom, Balancing Student Mobility Rights together with National Higher Education Autonomy inwards the European Union (BRILL, 2017)):
| | Austria | The Netherlands |
| Nature of the benefit | Fee reduction for the occupation of populace carry (grant) | Free occupation of populace carry on about days of the week; reduced fees on the other days (conditional grant) |
| Apparent purpose | To facilitate access to education | To facilitate access to education |
| Provision | Commercial populace carry operators | Commercial populace carry operators |
| Financing | The private governments of several Länder | Central Dutch government |
| Recipient | Student | Student |
| Eligibility | Enrolment higher education Parents inwards receipt of Austrian household unit of measurement allowances | Enrolment inwards higher education. Student inwards receipt of Dutch studiefinanciering |
Here the Court decided that the Netherlands could limit the create goodness along the price suggested past times Republic of Austria inwards the before case. It stretched the limits of consistency past times trying to distinguish the latter instance amongst a bizarre reference to the divergence inwards national classification of the benefit, despite it beingness settled instance constabulary that such classifications are irrelevant - a betoken the Court itself made inwards Commission v Austria.
So hither nosotros initially have got a judgment against the State together with inwards favour of the Union citizen, whereas the matrix would probable predict a judgment inwards favour of the State. Four years later the Court came, on largely the same facts, to the opposite conclusion. This should non endure seen equally a (late) vindication of the matrix however, since the Court formally distinguished the latter instance from the former, pregnant that both cases hold to endure skilful law.
Conclusion
Whereas the line of research presented inwards Davies’ paper is an interesting one, it cannot trouble organisation human relationship adequately trouble organisation human relationship for the existence of Förster together with the Commission v Austria/Netherlands saga. Apparently deserving applicants larn rejected, together with the same create goodness amongst a similar hypothetical user base of operations gets a unlike legal handling inwards the infinite of a few years. Two possible explanations suggest themselves:
- The Court is non consistent. This would hateful that Davies’ hypothesis is disproven.
- The matrix presented, past times which the courtroom supposedly measures deservedness, is flawed. This goes to the methodology used together with way that nosotros precisely haven’t flora calculus that the Court uses.
It would seem to me that the existence of both Commission v Austria together with Commission v the Netherlands equally ‘good law’ seems to hint at the former. In whatsoever case, however, to fence that the Court of Justice is normatively consistent, on the footing of the analysis carried out past times Davies, is a twosome besides far.
Barnard & Peers: chapter 13
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