Did the Financial Crisis Change European Citizenship Law? An Analysis of Citizenship Rights Adjudication Before and After the Financial Crisis

Published date01 January 2016
Date01 January 2016
Did the Financial Crisis Change European
Citizenship Law? An Analysis of Citizenship
Rights Adjudication Before and After the
Financial Crisis
Urška Šadl* and Mikael Rask Madsen**
As long as the Court goes on handing down judgments that enable ordinary
men and women to savour the fruits of integration, it will continue to
demonstrate its usefulness.
Abstract: This article analyses the impact of the 20072008 global nancial crisis on the
adjudication of EU citizenship rights, combining long-term quantitative empirical legal
study with qualitative socio-legal analysis. We nd that, rst, the Court of Justice of
the EU continues to interpret the provisions of the treaty and secondary legislation
broadly and reaches largely pro-individual outcomes in its citizenship case-law. Second,
it has been more explicit in drawing the line between core citizenship rights of European
citizens, such as the primary rights to move and reside freely, and the rights that are tied to
these core citizenship rights, including social security and social advantages on the one hand,
and the rights of Third Country Nationals, which they derive from their relationship with EU
citizens on the other hand. On this basis, we conclude that the economic crisis has had limited
impact on EU citizenship law and remained conned to the edges of the notion of EU
I Introduction
In this article we examine the effect of the 20072008 global nancial crisis on the adjudica-
tion of individual rights in the EU, in particular citizenship rights as a paradigm case of ju-
dicial protection.
It is generally acknowledged that the 20072008 global nancial crisis and the ensuing
Euro-zone economic crisis had a profound impact on European integration. Numerous
initiatives were taken to address the crisis, foremost at the national and supranational
political levels. These have already been studied in-depth elsewhere. By contrast, the
broader impact of the economic and nancial meltdown on the judicial protection of
*Assistant Professor at iCourts, the Danish National Research Foundations Centre of Excellence for Inter-
national Courts, Faculty of Law, University of Copenhagen, Studiestræde 6, DK-1455 Copenhagen K.
**Professor of law and Director of iCourts, theDanish National Research Foundations Centre of Excellence
for International Courts, Facultyof Law, University of Copenhagen, Studiestræde6, DK-1455 Copenhagen
K. This researchis funded by the DanishNational Research FoundationGrant no. DNRF105and conducted
at iCourts, Centre of Excellence for International Courts. We would like to thank Niamh Nic Shuibhne,
Agustín Menendez and the participants of the workshopThe impacts of the economic crisison the European
system of human rights,University of Strasbourg, June 2015, forcomments and suggestions.
G.F. Mancini and D. T. Keeling, Language, Culture and Politics in the Life of the European Court of
Justice(1995) 1 Columbia Journal of European Law, 397413, at 412.
European Law Journal, Vol. 22, No. 1, January 2016, pp. p. 4060.
© 2016 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
individuals has remained understudied. Moreover, while the positions of national govern-
ments and the EU political institutions are well known, the position of the Court of Justice
of the EU (CJEU) remains unclear.
First, the CJEU has been sending conicting signals. While the Aziz case,
overturned the allegedly abusive Spanish mortgage loans, could be read as a statement
of the CJEU to stand as the guardian of individuals in times of crisis, the
decided a few years earlier, sends a message of market logic prevailing
over labour and social interests. The rulings in Åkerberg Fransson
or Digital Rights Ireland,
on the one hand, and in Melloni,
and Opinion 2/13,
on the other hand, have left
many wondering how high individual rights protection is on the list of jurisprudential
priorities in Luxembourg. Second, this possible wavering seems to clash with the
CJEUs hallmark commitment to the protection of individuals, and the idea(l) of
la protection du faible
as one of the key justications of integrationist jurisprudence.
Critical voices have suggested that a gradual jurisprudential shift in the protection of cit-
izenship rights is indeed taking place. According to these scholars, the recent jurisprudence
is characterised by a lack of clarity,
rising limits and greater deference to the interests of the
Member States. Thym has argued that the CJEUs recent jurisprudence effectively reversed
the objective of Directive 2004/38 to facilitate the exercise of the individual right to move
and reside freely by allowing general national measures, which can prevent economically
inactive Union citizens (as a group) from using the host Member States welfare system.
Nic Shuibhne has demonstrated that the shift was systemic and not a new direct conse-
quence of coming into force of secondary legislation (Directive 2004/38) but rather of
a new constitutional interpretation by the CJEU.
Spaventa in the same tenor concluded
that we might be witnessing a reactionary phasein the jurisprudence, and a return of the
market citizen.
Sarmiento, in a more informal setting, has suggested a certain citizenship
fatiguein the practice of the CJEU.
Case C-415/11, Aziz, ECLI:EU:C:2013:164.
C-341/05, Laval, ECLI:EU:C:2007:809; C-346/06 Rüffert, ECLI:EU:C:2008:189; C-319/06 Commission v
Luxembourg, ECLI:EU:C:2008:350; and C-438/05, Viking Line, ECLI:EU:C:2007:772.
Case C-617/10, Åkerberg Fransson, ECLI:EU:C:2013:105.
Joined cases C-293/12 and C-594/12, Digital Rights Ireland, ECLI:EU:C:2014:238.
Case C-399/11, Melloni, ECLI:EU:C:2013:107.
Case C-62/14, Gauweiler, ECLI:EU:C:2015:400.
Opinion 2/13 on the draft agreement providing for the accession of the European Union to the Convention for
the Protection of Human Rights and Fundamental Freedoms, ECLI:EU:C:2014:2454.
R. Lecourt,Leurope Des Juges (E. Bruylant,1976) See also O. Due,The Law-Making Role of the European
Court of Justice Considered in Particular from the Perspective of Individuals and Undertakings(1994) 63
Nordic Journalof International Law,12337; s ee also Mancini and Keeling, above, n.1.
Most explicit in ibid.
Especially cases as Case C-333/13, Dano, ECLI:EU:C:2014:2358 and Case C-67/14, Alimanovic, ECLI:
D. Kochenov, The Right to Have What Rights? Eu Citizenship in Need of Clarication(2013) 19
European Law Journal, 502516.
D Thym, The elusive limits of solidarity: Residence rights of and social benets for economically inactive
Union citizens(2015) 52 Common Market Law Review,1750.
N. NicShuibhne, Limits Rising, Duties Ascending: The Changing Legal Shape of Union Citizenship
(2015) 52 Common Market Law Review, 889938.
E. Spaventa, Earned citizenship understanding Union citizenship through its scope, paper forthcoming
in Dimitry Kochenov (ed) EU Citizenship and Federalism: the Role of Rights (Cambridge University Press,
forthcoming), on le with the authors.
D. Sarmiento, Citizenship fatigue at the Court of Justice?, from June 22, 2015, available at https://
despiteourdifferencesblog.wordpress.com/page/2/ (accessed on October 4, 2015).
European Law Journal Volume 22
© 2016 John Wiley & Sons Ltd 41

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