Enforcer of European Social Rights or Defender of National Welfare Systems? The National Judiciary and its Role in the Europeanisation of Welfare Rights

In its case law on free movement of EU citizens the Court of Justice of the European Union (CJEU) has broadened the cross-border access to national welfare systems, especially to non-economically active persons. While this case law itself is much discussed – either praised as strengthening Europe’s social dimension or condemned as undermining the national welfare state – little is known about its actual impact on member states’ welfare systems. Therefore, this paper traces the domestic responses to this case law in Germany and the UK, focusing in particular on the reactions of the judicial branch which is expected – along previous research – to play a decisive role in determining the domestic impact of EU case law. However, given the dissimilar nature of the two legal systems under observation, namely a common law vis-à-vis a civil law system, we postulate diverging roles of the respective judiciaries: While German courts have fostered the enforcement of CJEU case law, British courts have been much more reluctant and shielded the domestic status quo. If this expectation holds it would explain why the UK has reacted in a much more restrictive way to CJEU judgements than it has been the case in Germany.