EUROPEAN COURTS AND SOCIAL RIGHTS: A CASE OF US JUDICIAL ACTIVISM OR SOCIAL DUMPING?

Courts contribute to the construction of citizenship by patrolling who enjoys rights to equal participation in a community.¹ Carlos Ball (1996) credits the European Court of Justice (ECJ) with the ad hoc creation of a transnational capitalist society where individuals' economic rights to participate in the European Union (EU) regional market generated broader rights to equal treatment. Specifically, judicial prohibitions against nationality discrimination enabled EU market citizens to gain access to domestic social benefits that foreign host states intended to reserve for their own nationals. The ECJ expanded entitlements not only to social-insurance schemes that protect against risks and social-investment programmes that promote future productivity, but also to social-assistance benefits that serve the needy (Conant, 2006a). Given that states historically avoided responsibility for the social protection of foreigners (Brubaker, 1992) and used social benefits as a means to forge national citizenries (Leibfried, 1994; Jensen, 2003), the development of transnational social rights is a striking departure. Furthermore, unlike the formal EU citizenship that derives from the Treaty on EU, which is limited to the nationals of EU member states, the ECJ's market citizenship extends some economic and social rights to the resident 'third-country nationals' of a handful of countries with EU association and cooperation agreements (Conant, 2002, 2004). Meanwhile, the European Court of Human Rights (ECHR) has creatively interpreted the Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter the Convention) to bolster the economic rights of individuals within the forty-six member Council of Europe (CE) and expand social rights in directions not available under EU law (Conant, 2006a). Most dramatically, ECHR decisions grant social rights universally, including resident foreigners regardless of their national origin, and increasingly ignore distinctions between contributory and non-contributory social programmes.

Is such European judicial activism a manifestation of an Americanisation of the relationship between law and politics? Political scientists have attributed a European trend towards increasing legalisation and judicialisation to economic liberalisation (Stone Sweet and Brunell, 1998; Kelemen and Sibbitt, 2004; Kelemen, 2006; Kagan, 2006), political fragmentation in EU politics (Conant, 2001; Tsebelis and Garrett, 2001; Kelemen, 2003, 2006; Kelemen and Sibbitt, 2004), and growing commitments to and demands for the rule of law and human rights (Moravcsik, 1995, 2000; Cichowski, 2006). Whether this legalisation is indicative of Americanisation (Kelemen and Sibbitt, 2004) or modernisation more generally (Kagan, 2006) remains in dispute. The post-war and post-Cold War expansion in domestic judicial review across Europe suggests that legalisation need not be synonymous with Americanisation: most states that intentionally pioneered judicial review created specialised constitutional courts with exclusive jurisdiction to review laws for compatibility with the constitution (Stone, 1992; Kommers, 1997; Schwartz, 2000; Stone Sweet, 2000). Unlike the US case, this institutional structure confines judicial interference with law-making to a single court. In the United Kingdom (UK), meanwhile, judicial review controls government action only for compatibility with statute (Sterett, 1997), and Parliament remains responsible for correcting domestic legislation that is declared to be incompatible with the Convention (Nicol, 2001). The ability of individuals to request that national courts apply 'supreme' EU law over any conflicting domestic provisions, however, diffuses the competence of American-style judicial review to all tribunals in EU member states. Furthermore, the CE requires its member states to change domestic law whenever the ECHR declares a violation that originates in the operation of a particular law or practice, and it accepts national courts conferring direct effect on ECHR rulings as proof of compliance (Parliamentary Assembly, 2000), which entails a parallel diffusion of review powers to all domestic courts. The extent to which national courts make use of these European judicial review powers to overturn national law remains unclear (Alter, 2001; Chalmers, 2000; Blackburn and Polakiewicz, 2001).

In the case of social rights before the European Courts in Luxembourg and Strasbourg, a basic substantive parallel with the US Supreme Court exists. Similar to the European Court's rejection of nationality discrimination against foreign residents, the US Supreme Court prohibited states from imposing residency requirements on welfare recipients on the grounds of a fundamental right to travel (US Supreme Court, 1969). The US decision allows the indigent to move freely, rather than merely allowing those already legally settled to gain entitlement to assistance, but this right to collect upon entry coincides with a system of welfare provision that is much less generous than those of the European states with the largest foreign populations. Broader trends in case law involving the construction of citizenship through property rights (Shapiro, 1981; Brubaker, 1992; Moustafa, 2003), enforcement of the boundaries of citizenship by courts (Smith, 1997; Sahlins, 2004), and shifts from a focus on economic rights to the development of rights associated with disadvantaged populations (Epp, 1998; Shapiro and Stone Sweet, 2002) are evident in a number of countries. The European Courts are acting much the same as domestic courts have in their propensity to prioritise the equal treatment of individuals under the law over privileges for national citizens (Guiraudon, 1999, 2000; Joppke, 1999, 2001).

Yet the case of social rights also reflects some major differences between the US and Europe. Unlike Europe, the US no longer displays any commitment to social citizenship. Since the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 replaced 'Aid to Families with Dependent Children' with 'Temporary Assistance to Needy Families' (TANF), the US has abandoned any conception that a minimum standard of living is a right of citizenship. Content to allow individuals who exhaust the five-year lifetime limit on public assistance to rely on family, local charity, or life on the streets, the US has reverted to virtually nineteenth century standards of social protection. The social Darwinian prospect of being left to die in the gutter has resurfaced (Sumner, 1883). By contrast, commitments to social citizenship persist in Europe. Welfare programmes in Europe do not impose strict deadlines to achieve economic self-sufficiency or prioritise a reduction in the welfare rolls as the primary indicator of success. Instead, Europeans focus on vocational training and investment in other social services that enable individuals to balance work and family responsibilities (Levy, 2005). The following statement is far from any official US rhetoric on welfare: the ECHR argued 'in the modern, democratic State, many individuals are, for all or part of their lives, completely dependent for survival on social security and welfare benefits. Many domestic legal systems recognize that such individuals require a degree of certainty and security, and provide for benefits to be paid – subject to the fulfillment of the conditions of eligibility – as of right' (ECHR, 2005a, paragraph 51).

In this article, I explore how the evolution of social rights in the two European legal venues is transforming the nature of solidarity and citizenship in Europe. I argue that the two European Courts have primarily fortified the transnational civil citizenship that national governments sketched out in EU law and the Convention, but that a nascent transnational social citizenship is emerging as well. Because provisions for social citizenship originate in commitments to national solidarity and depend on the operation of domestic programmes, however, judicial efforts to extend them transnationally are contested and vulnerable to retrenchment. Although a decline to US standards seems unlikely, European social citizenship remains susceptible to conversion to a predominantly civil form of citizenship. This suggests a move in the direction of the US model, even if it falls short of its harshest implications.

PRODUCTION AND REPRODUCTION: EARNING SOCIAL PROTECTION IN EUROPE

Member state governments of the EU and CE created a transnational civil citizenship by adopting legal texts to expand economic and civil rights for the nationals of EU member states and a few other states with EU association or cooperation accords, and for all individuals within the territory of the CE. EU members also agreed to extensive entitlements related to social insurance and investment for individuals who participate in the market and their dependent families, thereby creating social rights that are closely linked to economic activity and traditional family relationships. By contrast, social assistance that is based more exclusively on need is either omitted from European texts, explicitly excluded, or included in formally non-justiciable texts. With the exception of the right to education under Article 2 of Protocol 1, the Convention's provisions require considerable interpretive creativity to generate any social rights (Conant, 2006b). These distinctions that 'legislators' have drawn between (1) social insurance and investment and (2) social assistance reflect a limited form of European social solidarity.

Meanwhile, European judges have actively enforced social-rights provisions adopted in European treaties, legislation, and conventions, and they have creatively interpreted EU law and the Convention to expand entitlements to social rights far beyond the intentions of national governments (Conant, 2006a). Most notably, individuals who contest their exclusion from poverty relief have found a fairly generous reception from European judges, who have restricted governments' ability to limit social assistance to nationals. Providing an increasingly similar level of social protection to foreign residents and citizens alike has not been popular with member states, who have argued that states can legitimately discriminate against foreign claimants because the state 'has special responsibility for its own nationals and must take care of them and provide for their essential needs' (ECHR, 1996, paragraph 45) and only assumes obligations to promote the family life (through distribution of child benefits) of foreigners who possess permanent rights of residence (ECHR, 2005b, paragraph 15).

The ECJ has been chipping away at the nationality discrimination that EU 'citizens' faced decades before EU 'citizenship' existed, broadening entitlements to social benefits by narrowly defining social-assistance exclusions and classifying some forms of social assistance as 'social advantages' that EU migrant workers may access. Yet the ECJ still tends to link entitlement to social assistance to periods of employment or study and vocational training (Conant, 2006b) and bases the entitlement of any third-country residents on formal accords between EU member states and resident foreigners' home countries (Conant, 2002, 2004). By contrast, the ECHR has more fundamentally challenged state prerogatives by rejecting distinctions between social insurance and assistance and eliminating the possibility of nationality discrimination for all legally resident foreigners in CE states. The ECHR grounds its decisions that resident foreigners, regardless of nationality, can be entitled to non-contributory 'welfare' benefits that are based on need on the prohibition against national-origin discrimination under Article 14 of the Convention along with individuals' rights to 'enjoy their possessions' under Article 1 of Protocol 1. The ECHR's social interpretation of the Convention's property rights provision has not been a hit. France argued that a right to property could not include non-contributory benefits that take the form of social assistance (ECHR, 2003, paragraph 33). The UK argued that proprietary claims to state benefits should be limited to those contributory benefits for which 'the individual had, in effect, paid for the benefits' (ECHR, 2005a, paragraph 34). The UK government insisted that 'the Convention and Protocol No. 1 were concerned with civil and political, rather than social and economic rights' (ECHR, 2005a, paragraph 34). The ECHR based its rejection of these arguments on a British judge's conclusion that the variety of funding methods, interlocking nature of welfare benefits, and contributions that individual taxpayers make to benefits paid out of general taxation render distinctions between contributory and non-contributory social benefits increasingly artificial (ECHR, 2005a, paragraphs 50 and 21).

This dramatic expansion in entitlement to social assistance via European Courts, however, is limited by the subsidiary nature of all European social rights. Neither EU law nor the Convention creates rights to acquire property or receive social benefits, and therefore neither places restrictions on states' freedom to provide any sort of social benefits or determine the type or amount of benefits. It also remains unlikely that claims to a right to maintenance in the absence of some compulsion to work would be successful given the current case law concerning Article 4 of the Convention on forced labour. The ECHR has found a number of work requirements to be compatible with the notion of 'work or service, which forms part of normal civic obligations' (ECHR, 1971, 1982, 1983, 1994). Given this approach, policies that link social protections to some type of work will probably remain unchallenged.

THE TRIUMPH OF CIVIL CITIZENSHIP AND THE LIMITS OF EUROPEAN SOLIDARITY?

EU law and the Convention largely promote a transnational civil citizenship where social rights are primarily corollaries of economic rights. The primary indicator of this is that most entitlements to European social protection entail social-insurance and investment systems designed to reward productivity rather than social-assistance programmes intended to alleviate poverty. The European Courts have pushed the limits of these texts to expand transnational entitlements to social assistance, but it remains possible for states to reassert their emphasis on productivity as the solution to poverty with domestic reforms that transform public commitments to social welfare.

Entitlement to benefits are increasingly contingent on obligations to work or pursue training in both the US and states of Western Europe. National reforms in most wealthy European states are linking social rights to 'activity'. Joel Handler argues that the 'active labour market policies' and strategies for 'social inclusion' being adopted throughout Europe are similar to US 'workfare' in the sense that they push work and training initiatives for social-assistance recipients. Although the conditionality of these programmes does not impose US-style deadlines to achieve economic self-sufficiency, they tie rights to obligations in a contractual manner. Income security becomes based on labouring status rather than citizenship itself (Handler, 2004). The linkage of most EU social rights to the exercise of rights that facilitate the pursuit of productive aims such as employment, education, or child-rearing renders transnational social citizenship shallower than its traditional national equivalent in EU member states. In the case of social assistance, governments have helped their own national citizens simply because they needed it, regardless of any past history of economic activity or familial provision.

The contingency of US social rights on economic activity is so strong that Gwendolyn Mink (1998: 27) considers the coerced labour of TANF to fall under the Supreme Court's definition of involuntary servitude, prohibited by the Thirteenth Amendment to the US Constitution. Comparatively low public social spending in the US is often contrasted with the more-generous European welfare states, but US exceptionalism in social policy is exaggerated. Jacob Hacker has demonstrated that what is unusual about US social spending is not its level, but its source. Much of the US welfare regime operates through private spending by employers rather than public spending by the state. When public and private social spending are combined, the US no longer appears to be an outlier among advanced industrial democracies. But, private provision usually confers benefits only on the economically active and their family members through employment contracts. Far from universal in nature, the quality of social insurance varies with the quality of employment: higher income individuals usually receive more comprehensive coverage (Hacker, 2002).

Even though more redistributive public social insurance remains quite comprehensive in Europe, further contemporary trends in social insurance threaten universal provision based on national citizenship. At the same time that states have begun to tie benefits more closely to labour-market participation in ways that subvert unwelcome judicial incursions into social assistance, a privatisation of social provision has emerged through the proliferation of occupational, company-linked pensions and supplemental private life and health insurances (Rhodes, 1996: 20–1). Social policy analysts see such privatisation, always prevalent and recently on the rise in the US, as contributing to a privatisation of risk and the erosion of support for more universal social protection (Hacker, 2004; Jordan, 1996). Rendering social rights dependent on economic rights, particularly in the competitive environment of transnational arenas, threatens universal social protection (Closa, 1996; Rhodes, 1996; La Torre, 1998). Given high unemployment levels in much of Western Europe, and the decline of traditional families, individuals could find themselves increasingly falling outside of conventional social safety nets based on employment and family relationships (Rhodes, 1996; Kazepov, 1998).

As a result, Europe may be inching towards the situation of the US, where the economically active who are in the least need of social protection are actually best insured against the risks of contemporary life. This could represent an unfortunate contraction in the social rights of citizenship in Europe. In a world of increased mobility, however, some scholars argue that contractual forms of social rights based on contribution may be the only legitimate means to extend social protections to the immigrants and resident aliens who constitute a substantial segment of the population (Engelen, 2003). To the extent that European Courts prohibit differential treatment between nationals and foreigners, all may become subject to the contractual demands of transnational civil citizenship.

Notes

¹ The author thanks participants at the seminar 'Patrolling the Boundaries: Courts, Rights, and Citizenship in Europe' of the Robert Schuman Centre for Advanced Studies, European University Institute, Italy, 7 February 2006 and the 'EU politics' panel of the Annual Meeting of the American Political Science Association, Philadelphia, 31 August–3 September 2006, for their helpful comments on earlier versions of this article. The author is also grateful for financial support for research in this project from a Professional Research Opportunities for Faculty Grant of the University of Denver and a Small Grant of the American Political Science Association.

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About the Author

Lisa Conant is an associate professor of political science at the University of Denver. Her publications examine the politics of legal integration in the EU, Europeanisation of national courts, and transformations in the rights and obligations of citizenship that derive from EU law and the European Convention on Human Rights.