'Pushing the boundaries': a dialogical account of the evolution of European case-law on access to welfare

Abstract

In the context of the 2004 Enlargement, several EU governments reformed their social legislation to restrict the access to benefits of job-seeking or inactive EU citizens. Many of these restrictions were in tension with the case-law of the European Court of Justice, but when it came to judge their compatibility with EU law, the ECJ was more lenient than many anticipated. This article analyses this shift in ECJ case-law by looking at the dialogue between the Court and national authorities against the backdrop of EU legislative reform. It demonstrates that Member States contributed to the evolution of case-law by 'pushing the boundaries' of EU law both domestically and before the Court. It shows in particular how closely the arguments presented before the Court by national judiciaries or governments correlate with the new interpretations adopted by the Court itself. This is illustrated with empirical evidence from the UK and Germany.

Keywords: European Court of Justice; case law; member state administrations; welfare rights.