Edited by Frans Pennings and Martin Seeleib-Kaiser
Edited by Frans Pennings and Martin Seeleib-Kaiser
Martin Seeleib-Kaiser and Frans Pennings
Social rights are highly contested and historically were closely linked to the establishment of nation states. Freedom of movement and the introduction of EU citizenship have eroded the sovereignty of EU Member States in limiting access to social rights to their citizens. In this chapter we introduce the main issues associated with intra-EU migration and social rights as well as provide an overview of the book.
Andrzej Marian Świątkowski and Marcin Wujczyk
This chapter approaches the issue of social rights in Europe from a normative perspective. It investigates whether standards can be derived from the European Social Charter of the Council of Europe that may be of use in establishing a minimum floor of social rights for citizens.
This chapter focuses on the strength of EU social rights of inactive Union citizens over time. It is argued that these rights have been mainly the creation of the European Court of Justice, which has been the motor in promoting equal treatment of Union citizens. While the EU Court initially paved the way for more equality among migrant nationals, the EU legislator introduced several restrictions to this in the Citizenship Directive, whereupon the Court started to embark on a restrictive path towards social rights for non-economically active persons. Access to social rights is core for the ability of all citizens irrespective of class to more fully enjoy political and civil rights. The development of EU citizenship over the past twenty years has made great progress in granting social rights not only to workers, but also to EU citizens, who fulfil certain minimum residency requirements. These developments are, however, not fully underpinned by the necessary political legitimacy in all Member States. Although across Member States one can detect a nascent solidarity that includes EU migrant citizens, in a number of countries the support for access to social rights by EU migrant citizens is fragile at best, or almost non-existent, as in the United Kingdom. The specific welfare regime of a country does not seem to be of great importance for EU migrant citizens accessing social rights. In practice, access largely depends on meeting residency and/or registration requirements and on the propensity of individual Member States to implement rules limiting access of these rights for EU migrant citizens. Systematic evidence regarding the extent to which EU migrant citizens have been able to access their social rights in EU Member States as well as about the social conditions under which EU migrant citizens live is largely lacking.
Cecilia Bruzelius, Catherine Jacqueson and Martin Seeleib-Kaiser
The authors analyse the development of EU social policy, highlighting the limited role of the EU and the dominant role of Member States in determining social rights and outcomes. The chapter provides the context for the subsequent analyses.
In 1992 the Treaty of Maastricht was adopted, that introduced inter alia a new concept: EU citizenship. It provided that EU citizens can rely on the rights ensured by the treaties and on free movement (Articles 20 and 21 TFEU). Since until that Treaty the provisions on free movement and non-discrimination on ground of nationality had been limited to workers and self-employed, this meant an important extension of rights. For workers, the Treaty guaranteed, already from the establishment of the EEC, that they had to be treated equally as national workers. Requiting equal treatment for economically non-active persons is much more problematic. If, for instance, anyone from the moment of entering a Member State would be entitled to social assistance, this might lead, it is feared, to ‘benefit tourism’ and that would clearly overstretch the solidarity of the host State. For this reason the combination of mobile EU citizens and social rights constitutes a politically highly sensitive area.
Sara Stendahl and Otto Swedrup
This chapter discusses three theoretical focal points: social rights, redress mechanisms and citizenship. Core references were made to Jeff King, Anna Hollander, Håkan Gustafsson, Lotta Vahlne Westerhäll and T.H. Marshall. The aim of the study is to investigate the possibilities and impediments for EU-citizens in Denmark, Estonia, Germany, the Netherlands, Poland, Spain, Sweden and the United Kingdom to enforce their (moral and/or legal) social rights in the fields of education, health care, housing and social assistance. The redress mechanisms developed in the eight countries to secure the enforcement of the selected social rights are discussed as well as other – extra-legal – circumstances that create hindrances for EU-citizens to enforce their social rights in spite of established redress mechanisms.
The European Union Member States are under the obligation to ensure that Union citizens may exercise freedom of movement without encountering unjustified restrictions or otherwise discriminatory treatment. Whether private parties are also directly obligated under Union law to respect the ban on nationality discrimination in contractual agreements is a more contested issue. Formal public law structures in a host Member State can nevertheless make it difficult in practice for a non-national Union citizen to access both public benefits and private services on equal terms with resident nationals. This chapter looks at the example of Sweden, which, like its neighbouring Denmark, Finland and Norway, relies heavily on a national public law administrative system of residence registration of all its inhabitants, primarily for the purpose of taxation, and control of national migration within the State. The significance of being registered is however greater than what is reflected normatively when looking at Swedish public law, since, to navigate in Swedish public and private society without a residence registration may in fact pose great practical difficulties.
Nadine Absenger and Florian Blank
While the Rome Treaty granted freedom of movement and residence only to workers and other employed persons, this freedom was expanded significantly until it was granted to non-employed EU citizens in 1990. While thus the EU grants its citizens at least some social rights and promotes the use of the freedom of movement, national debates and policy reforms that are supported by judgments of ECJ reinforce the member state’s rights to refuse EU citizens access to social benefits. We want to show in this chapter that the European approach to social rights and labour market policies can hence be described as a contradictory project. First, the EU subscribes to an ambitious labour market programme and to the objective of activating citizens, that is, to enable and/or push them to participate in labour markets. Because of the double guise of activating policies where training measures and placement services are often connected to ‘passive’ social benefits such as unemployment benefits and because of giving EU members states the possibility to restrict access to the latter, the ECJ at the same undermines activating policies and hence EU labour market objectives. Second, the general approach of the ECJ and member states to restricting access to social benefits is in opposition not only to labour market objectives, but also to the more general approach to social rights as enshrined in the European Charter of Fundamental Rights. We want to illustrate these points by using an in-depth analysis of the German case; more, an attempt that is highly controversial given the rules of the German Basic Law and recent rulings by the Federal Social Court.