Emily Hancox is a PhD researcher at the University of Edinburgh working on the interplay between norms in the EU legal order and the implications of this for the scope of application of European law. Alongside her PhD, Emily Co-Convenes the Europa Research Group, sits on the Steering Committee of the Edinburgh Europa Institute and is Managing Editor of the University of Edinburgh Legal Studies Research Paper Series. She also teaches Public and EU Law. Prior to moving to Edinburgh, Emily worked as a lecturer at the University of Oxford and was a Legal Trainee at the Office of the European Ombudsman in Brussels. A fully referenced version of the letter is available here.
While there are many urgent and troubling issues one might choose to write about regarding European public law at present, I write to you today with a fairly modest plea. My plea is aimed at the European Court of Justice (ECJ) and implores its members to better respect the rule of law in their decision-making.
It is perhaps always dangerous to invoke such a contested concept as the rule of law in an argument. However, the Member States themselves, as drafters of the Treaties, made clear the commitment of the EU towards the rule of law. Article 2 of the Treaty on European Union (TEU) states:
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.
A number of meanings can be (and have been) attributed to the rule of law, ranging from a formalistic conception to requiring a full-blown commitment to human rights. At its most basic, perhaps, the rule of law might be regarded as a requirement of consistency that contrasts with arbitrary exercises of discretion. When directed towards the judiciary, the rule of law as consistency requires a coherent line of jurisprudence with some degree of predictability. Respect for the rule of law does not imply that it is illegitimate for judges to overrule earlier decisions. However, in such cases, judges ought to justify and explain the shift.
In the context of the EU the need to respect the rule of law takes on a new dimension. The decisions of the ECJ are binding across all twenty-eight Member States where it is the obligation of national judges and law-makers to interpret and apply those decisions. While, strictly speaking, the ECJ is not bound to follow its earlier decisions, its position within the EU legal order provides a strong argument why the ECJ should aim for consistency.
The ECJ has only very rarely expressly departed from its earlier decisions and the cases in which it has done so are ‘as few as they are celebrated’ (in the words of Advocate General La Pergola). Such cases where the ECJ explicitly overruled its earlier decisions include Roquette Frères (overturning Hoechst), Keck, and Metock (overturning Akrich). More frequently, the ECJ implicitly departs from earlier judgments such as from its decision in Cinéthèque to ERT and Familiapress. It is this latter instance that I want to pick up on and raise in the light of two recent cases regarding access to social benefits for EU citizenship: Dano and Alimanovic.
In Dano the ECJ appears to depart its rulings in Martínez Sala and Trojani, namely that migrant EU citizens, lawfully resident according to national law (but not EU law), are entitled to equal access to any social benefits regulated by EU law. The ECJ focused on the primary rights of Ms Martínez Sala and Mr Trojani to move and reside (Article 21 TFEU) and to non-discrimination on grounds of national (Article 18 TFEU). Ms Martínez Sala, as a Union citizen lawfully residing in the territory of another Member State, fell within the personal scope of the Treaty (para 61) and was thus able to claim equal access to social benefits. Similarly, in Trojani, the ECJ held that while Member States ‘can make residence of an EU citizen conditional on his having sufficient resources, that does not mean that such a person cannot, during his lawful residence in the host Member State, benefit from the fundamental principle of equal treatment’ (para 40).
In Dano, however, the ECJ chose not to focus on the position of Ms Dano as an EU citizen lawfully resident in a host Member State. Instead, the ECJ focused its attention on whether Ms Dano had a right of residence under EU law (specifically Directive 2004/38, the Citizens’ Rights Directive). Ms Dano did not have a right of residence under Citizens’ Rights Direct as she lacked sufficient resources (para 81) which meant she could not claim equal treatment with regard to social assistance (para 82). The case clearly departs from the ECJ’s earlier decisions, yet does not expressly say so or provide reasons as to why it is doing so. It might be that the entry into force of the Citizenship Directive signalled the need for a change, but the ECJ does not even go so far as to state this.
In Alimanovic, the ECJ again implicitly overruled its 2009 decision in Vatsouras. Article 24(2) of the Citizens’ Rights Directive permits Member States to derogate from the right to equal treatment as regards jobseekers. In Vatsouras, the ECJ held, notwithstanding Article 24(2), that a jobseeker still falls within the scope of Article 45 TFEU on free movement of workers. A jobseeker could therefore still benefit from the right to equal treatment in Article 45 TFEU (para 36) as regards ‘a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State’ (para 37). The ECJ did accept, however, that a Member State could choose to grant such an allowance only after it has been possible to establish a real link between the job-seeker and the labour market of that State (para 38). In Alimanovic, however, the ECJ did not refer to Article 45 TFEU. Instead the ECJ narrows, almost to the point of extinction, this aspect of its decision in Vatsouras, holding simply that social assistance to jobseekers may be withheld under Article 24(2) of the Citizens’ Directive (paras 57-58).
In both Dano and Alimanovic therefore, the ECJ implicitly overrules several earlier cases on the rights of EU citizens. Without explicitly declaring this, the ECJ leaves in doubt the status of the earlier decisions, complicating the position of national judges who have to make their way through the ECJ’s case law. What is more, when the subject matter concerns the rights of EU citizens, a decision to limit these rights warrants justification. In the absence of explanation, the ECJ leaves itself open to criticism for acting arbitrarily or political expediency. I therefore end, as I began, with a plea for greater respect for the rule of law in Europe.
Is mise le meas,