European integration, notably the single market, has much profited from case law of the ECJ, relying on the Treaty’s many policy goals under its supremacy and direct effect. The introduction of EU citizenship rights in the Treaty of Maastricht allowed transfering the ‘integration through law’ approach of using case law of the Court to push European integration along to the area of welfare entitlements. Member states’ heterogeneous welfare states are only coordinated at the level of the EU to allow for individual free movement. Case law based on free movement rights, the prohibition to discriminate along national lines, and citizenship has incrementally helped to build social Europe by granting access to each other’s welfare systems. In the light of rising political contention, in recent years the Court has halted its extensive case-law development, resulting in pronounced criticism from the community of EU law scholars. In this paper, I challenge the expectation that judicialization can be an avenue for building social Europe. This is not only because of expectations of ‘a tragedy of the commons’, where the opening of national welfare may risk undermining its financial basis. Given heterogeneous national welfare regimes, I argue that non-discrimination is a poor guide for the Court to further transnational welfare. Rather, new inequalities result. Integration through law that was so successful in building the single market faces much higher, and particularly normative problems when individual citizens are concerned. The extent of legal uncertainty accompanying integration through law could imply that individuals are better off with clearly defined rights.
Afterwards you are cordially invited for drinks in the hall of the 3rd floor.