Criminal Cases
Although EU competence in the field of criminal law is limited, it includes some harmonisation of substantive and procedural criminal laws (Mitsilegas 2016), Member State law enforcement agencies’ cooperation, and mutual recognition of judgements and orders. For example, the 1990 Convention Implementing the Schengen Agreement (‘CISA’), to which all Schengen areaFootnote 22 Member States subscribe, pertains to supporting police and judicial cooperation. Under Article 54, which adopts the ne bis in idem principle, a person whose trial has been disposed of in one Member State may not be prosecuted in another for the same acts.
Furthermore, under Council Framework Decision 2002/584 (‘Framework Decision’),Footnote 23 which has been transposed into national laws by all Member States, national judicial authorities may issue a European Arrest Warrant (‘EAW’) to require other Member States to transfer a criminal suspect or sentenced person to the issuing State so that the person can be prosecuted or complete a detention period.Footnote 24 Such persons are provided numerous procedural protections. For example, the executing State must refuse to surrender a requested person who had been acquitted or had already served a sentence for the same act (Article 3). Moreover, the executing authority may refuse to surrender a person who has been prosecuted in that State or a third country for the same act, if the prosecutorial authorities in the executing State could not or had decided not to prosecute the person, or if the alleged offence was committed in the executing State (Article 4). Notably, under Article 4(6), the executing State may refuse to surrender a requested person who is ‘staying’ in or is a ‘resident’ of the executing State, if the State undertakes to execute the sentence in accordance with its own law.
Criminal Proceedings Against Szymon Kozlowski
In Criminal Proceedings against Szymon Kozlowski,Footnote 25 German judicial authority was asked to execute an EAW issued by a Polish court against a Polish national who was serving a custodial sentence in Germany. He argued that Germany should use its discretionary power under Article 4(6) to refuse to execute the EAW because he was either a ‘resident’ of or ‘staying’ in Germany—due to having visited it on numerous occasions and having worked there on various building sites for more than a year before his arrest. He also pointed that he was intending to remain and work there after his release. The German authority disagreed, arguing that his only purpose in being there had been to commit crimes. The German court enquired: (1) whether a person in Mr. Kozlowski’s circumstances could be considered a ‘resident’ of or as having been ‘staying’ in the executing State; and (2) whether Germany’s transposition of the Framework Decision which prevents EAW execution against German nationals opposing surrender but permits such extradition of nationals of other Member States was compatible with EU non-discrimination principle and EU citizenship rights.Footnote 26 In addition to the AG’s opinion and arguments presented by the parties, observations were submitted by nine Member States (including Poland) and by the Commission.
Addressing the first question, the ECJ noted that discretion under Article 4(6) not to execute the EAW was connected to the requested person’s chances of reintegrating into the executing State’s society after the sentence ends. The ECJ concluded that Mr. Kozlowski was not a resident in Germany because Germany was not his actual place of residence. Next, the ECJ instructed that in interpreting ‘staying in’, national authorities must make a holistic factual assessment—based on factors such as the length, conditions and nature of presence, and any family or economic connections—to determine whether ‘a stable period of presence’ had resulted in acquiring connections of a similar degree as those resulting from residence. Given Mr. Kozlowski’s length and nature of stays in Germany, absence of family ties and only weak economic connections, the Court then ruled that he could not be regarded as ‘staying in’ Germany. Thus, discretionary power was not available to Germany to refuse surrendering him pursuant to the EAW. After noting that Article 4(6) was not applicable to Mr. Kozlowski, the Court than declined to address the second question.
ECJ Discourse
The ECJ presents itself in this ruling as authoritative and its reasoning as undisputed, as is typical of its judgements (Kalimo et al. 2018). Notably, the Court refers to itself in the third person, as ‘the Court’ (seven times), and states that its interpretation ‘must be’ followed (seven times). Its decision resembles a monologue rather than a deliberation of various viewpoints. For example, the ECJ only acknowledges in passing some Member State observations, without engaging with them, and instead channels them through the Court’s own voice. Notably, observations submitted by the Polish government are not mentioned at all, despite the fact that the issuing government clearly had strong interests in the case. The Court also does not mention the AG’s opinion—perhaps because its approach differs from the Court’s in some significant ways, as described below. What the Court does devote much time to, however, is a detailed description of EU law, which goes beyond statutory provisions relevant to its decision. It also focuses on one guiding value: maintaining uniformity of the Framework Decision’s application across the Member States. Both of these techniques serve to reinforce the importance and authority of EU law.
What is missing in the Court’s substantive discussion is particularly revealing. The ECJ declines to address the second question altogether, even though its determination could have made the first question superfluous (as emphasised by the AG). In fact, the Court does not mention fundamental rights or any rights of requested persons—topics which were discussed at length by both the German government and the AG. By not engaging with arguments about fundamental values or movers’ rights, the Court creates the impression that Mr. Kozlowski is not the type of person for whom EU citizenship and fundamental rights were created.
Furthermore, the Court does not give Mr. Kozlowski a voice. It does not refer to his arguments (other than the fact that he was opposing his extradition). The Court’s discursive approach towards him is also illuminating. Other than in its recitation of the factual background and of the referring court’s questions, the Court refers to Mr. Kozlowski by his name only once. Throughout the rest of its discussion, the Court calls him ‘the requested person’ or ‘the person concerned’, dehumanising him and emphasising his criminal background. It thus becomes easier to other him as inferior (Keskinen and Andreassen 2017). One of the goals of the postcolonial framework has been to disrupt such practices, and to give a voice to those who have been silenced by the dominant knowledge production (e.g. Spivak 1999).
Moreover, the Court includes numerous factual details, only tangentially relevant to the questions at issue, which portray Mr. Kozlowski in a negative light. For example, the Court notes that Mr. Kozlowski was sentenced to imprisonment in Poland for the ‘destruction of another person’s property’ (para 19), and was serving a custodial sentence in Germany of 3 years and 6 months to which he was sentenced ‘by two judgements …. in respect of 61 fraud offences committed in Germany’ (para 20). Ignoring the fact that Mr. Kozlowski had been employed in Germany on construction sites for more than a year, the ECJ infers that ‘his successive periods of presence on German territory were characterised by the commission of several crimes, without any lawful activity’ (para 23). The Court also mentions that he was ‘single and childless,’ and had drawn unemployment benefits in Poland for approximately 1 year (para 25).
All these details paint a picture of someone who is not fit to be an EU citizen, and hence does not deserve discretionary protection from extradition. Mr. Kozlowski is inferiorised as someone whose alien values and lifestyle attributes make him an outsider to the idealised EU polity, not able to integrate there (Omi and Winant 2015). Instead of focusing on traits pertinent to him as a legal actor, the Court re-produces knowledge which is in line with how CEE movers tend to be portrayed by western media and by the western public—as alien, primitive and criminal. Thus, through both institutional and bottom-up knowledge production, persons such as Mr. Kozlowski become racialised as outsiders and deviants (Kushner 2005).
AG Opinion
The AG’s OpinionFootnote 27 is much longer than the Court’s, which is not atypical. Since AGs have lesser authority than the Court, they typically rely on other actors’ arguments more. The AG engaged with the German government’s arguments and with other Member States’ observations, including those of the Polish government. Unlike the Court, the AG concluded that Mr. Kozlowski’s intermittent presence, lack of stable resources and commission of crimes in Germany did not preclude a finding of his ‘residence’ or ‘staying in’ there, which should be determined through a holistic factual analysis by the referring court (para 175). The AG also found that Germany’s transposition of Article 4(6) violated non-discrimination rights because it prevented EAW execution against German nationals opposing surrender but permitted such extradition of nationals of other Member States.
The AG’s discussion helps to shed further light on both the gaps and extraneous matters in the ECJ’s discourse. Its substantive and discursive details are particularly revealing. Notably, by addressing at length the second issue in the case, the AG emphasised additional values and interests relevant to the case—including not only requested persons’ rights under the Framework Decision, but also more generally, EU citizens’ fundamental rights to free movement, equality, and re-integration and social rehabilitation following incarceration. In its discussion, the AG drew on the EU Charter of Fundamental Rights and the European Convention of Human Rights, which do not appear to have been discussed by the parties, increasing its appearance of authority as a moral arbiter. Even if the inclusion of such details was driven by the AG’s ultimate legal conclusions rather than by being sympathetic to Mr. Kozlowski, it nevertheless acknowledged Mr. Kozlowski’s EU rights and, more generally, the rights of movers in his position.
In parts, the AG’s discursive approach towards Mr. Kozlowski also appears starkly different than the ECJ’s, even bordering on sympathetic. The AG voices Mr. Kozlowski’s arguments, noting that he had intended to be in Germany to find work, but had fallen into bad company, and that he wished to remain in Germany following his release (para 34). Moreover, throughout the opinion, the AG refers to him by his surname, and often paints background details in a somewhat less negative light than the ECJ does. For example, instead of specifying that Mr. Kozlowski had been convicted of 62 fraud offences, the AG mentions his ‘numerous fraud offences’ (para 31); instead of pointing out that he had received unemployment benefits in Poland for 1 year, the AG notes that he had gotten by with his parents’ assistance and his receipt of ‘limited unemployment benefits’ in Poland (para 30). Unlike the ECJ, the AG also mentions that Mr. Kozlowski had trained as a chef (para 32). Thus, the AG presents a fuller picture of his background and creates an impression of someone who might had experienced some difficulties but nevertheless belongs to the EU polity or at least deserves a chance to be rehabilitated. Of course, the different substantive conclusions reached by the AG and the ECJ might help to explain, at least in part, such discursive differences.
On the other hand, the AG does re-state some negative facts from the referring court’s judgement. For example, the AG notes that Mr. Kozlowski is ‘unmarried and childless’ and ‘has been an alcoholic since 2003’ (para 32). It is not clear whether the AG includes these details unreflexively, simply because the referring court had done so, because the AG himself harbours a negative attitude towards Mr. Kozlowski, or to increase the legitimacy of his opinion by including facts that might go against his legal conclusions. What matters, however, is that such language gets re-produced and normalised, filling institutional discourse with negative symbolic meaning about persons such as Mr. Kozlowski (Rattansi 2005).
Criminal Proceedings Against Vladimir Turansky
Austria instituted criminal proceedings against Mr. Turansky, a Slovak national, suspecting him of having carried out a robbery of an Austrian national in Austria. Upon learning that Mr. Turansky was in Slovakia, Austrian authorities stayed their proceedings and requested the Slovak Republic to open proceedings against him. Slovakian authorities opened criminal proceedings into the reported acts, and called Mr. Turansky as a witness. After examination of the merits, the Slovak prosecutor suspended the proceedings, without charging him, and requested that Austrian proceedings also be suspended. Austrian court then referred to the ECJ the question of whether the ne bis in idem principle under the CISA precluded prosecution in Austria. The Court ruled that it did not because the decision in Slovakia did not constitute a final disposition. The Commission and seven Member States submitted observations, but the Court chose to proceed without AG’s written opinion.
ECJ Discourse
In several respects, the Court’s discourse in this case resembles its legitimating discourse in the Kozlowski proceedings. For example, throughout the judgement, the Court refers to itself in the third person and proclaims how its interpretation ‘must’ be followed. Although the Court does mention the arguments of several Member States and of the Commission, it does so only when the Court agrees with them and only in passing, channelling them through the Court’s own voice. The only interest that the Court mentions is the prevention of double prosecution, which is an undisputed principle. Mr. Turansky’s interests are not addressed at all, albeit that might be attributable in part to the fact that he had not submitted observations and did not make an appearance at the hearing.
Notably, the ECJ repeatedly portrays Mr. Turansky—a suspect in Austria, against whom proceedings in Slovakia were discontinued on the merits—as condemnable. For example, the Court characterises the alleged crime as ‘a serious robbery’ (para 2) and notes that Mr. Turansky was ‘strongly suspected of serious robbery’ (para 18). These, of course, are subjective interpretations rather than legal concepts. The Court also notes that the alleged crime was committed against an Austrian person ‘at his home’ and that the accomplices had ‘seriously injur[ed]’ him (para 17), adding to the reprehensibility of the alleged crime (and potential culpability in the underlying criminal proceedings). Finally, mentioning that his alleged accomplices ‘are being prosecuted separately’ (para 17) only adds to the impression that the alleged crime did in fact occur. Mr. Turansky is thus implicitly characterised by the Court as a criminal and someone who does not belong to the proper EU polity (Rattansi 2005).
Moreover, the Court does mention several irrelevant negative details regarding not only Mr. Turansky, but also other CEE nationals. For example, the Court notes how Mr. Turansky is suspected of having committed the robbery ‘in the company of two Polish nationals who are being prosecuted separately’ (para 17). Their ethnicity and even the fact that Mr. Turansky might have engaged in a conspiracy are legally irrelevant to the referred questions.Footnote 28 Racialisation of the CEE region operates through ascribing inferior practices not only onto individuals but also to whole groups, through essentialising their purported members as similar and innately subordinate to the idealised yardstick of western norms (Kinnvall 2016; Keskinen and Andreassen 2017).
The case is not accompanied by a published AG opinion.Footnote 29
Comparison to How Western Applicants Are Represented
My targeted review of criminal proceedings pertaining to western claimants further illuminates how CEE nationals are inferiorised and their interests overlooked in ECJ discourse. In the cases I had analysed, it became apparent that both the ECJ and AGs tend to refer to western claimants by their surnames, engage with their arguments, and do not infer or imply negative views about them as individuals or about their ethnic groups.
For example, Mr. Kretzinger,Footnote 30 a German national, was convicted twice (in absentia) in Italy for two separate incidents of transporting contraband cigarettes by lorry and not presenting them for customs clearance. He was then sentenced in Germany for evasion of customs duties when the cigarettes had first been smuggled into the EU. The ECJ ruled that, since the two prosecutions pertained to the same act, his sentence in Germany was barred under the ne bis idem principle. Other than mentioning that the two sentences had been entered into his criminal record, the Court does not categorise him as a criminal or portray him in a negative light. Instead, throughout its discussion, the Court refers to Mr. Kretzinger by his surname and calls him ‘defendant’ only in the context of the underlying national proceedings. Moreover, the Court engages with his arguments pertaining to each of the three referred questions (paras 41, 47, 57, 59). The discourse adopted by the AGFootnote 31 is very similar.
The Court does not portray western applicants as morally condemnable, regardless of how reprehensible their underlying crimes are. For example, Mr. MantelloFootnote 32 was sentenced in Italy to more than 3.5 years of imprisonment (upheld on appeal) for unlawful possession of cocaine with intent to distribute. After his release, based on wiretap and investigator shadowing evidence, Italian authorities issued an EAW against himFootnote 33 and 76 other persons suspected of a related crime of engaging in international cocaine trafficking and supplying cocaine to a minor. Pursuant to this EAW, Mr. Mantello was arrested at his home in Germany. He objected under the Framework Decision, by arguing that the two actions were based on the ‘same acts’. Despite ruling that the EAW should be executed and despite any moral reprehensibility of the underlying acts, the Court does not portray him in a negative light. In fact, throughout its judgement, the Court notes that Mr. Mantello was merely a suspect (under the EAW)—despite the fact that he had already been convicted in Italy of related crimes. Moreover, the Court consistently refers to Mr. Mantello by his surname, even though he had not submitted observations and was not even present at the hearing. This is starkly different from how the Court had approached Mr. Turansky, the only other applicant discussed in this paper who was not represented and not present at the hearing. The AGFootnote 34 relies on a similar discourse.
Even in cases I had reviewed where EU-15 claimants had already been convicted of the specific crimes directly at issue in their ECJ applications, ECJ discourse gives them a voice and does not condemn them. For example, Criminal Proceedings against Van EsbroeckFootnote 35 concerned a Belgian who was sentenced in Norway to 5-years’ imprisonment for importing four types of illegal narcotics. He was then sentenced in Belgium for illegally exporting the same drugs. Throughout their discussions, both the Court and the AGFootnote 36 refer to him by his surname and make no negative inferences about him. Similarly, Criminal Proceedings against KraaijenbrinkFootnote 37 involved a Dutch national sentenced in the Netherlands to a suspended 6-month imprisonment term for several offences of receiving and handling proceeds from drug trafficking. Subsequently, she was sentenced in Belgium to 2 years’ imprisonment, for money laundering the proceeds of those drug operations. In their analyses, both the Court and the AGFootnote 38 repeatedly engage with her contentions, refer to her by her surname, do not label her behaviour as criminal, and refrain from making any negative allusions.
Unlike Messrs. Kozlowski and Turansky, EU-15 claimants in these cases are not excluded or denounced as inferior to the norm. They are not treated as second-class EU citizens or uncivilised and alien individuals, or essentialised as such exemplars of their (racialised) ethnic groups. Instead, discourse towards them tends to be neutral and respectful, and the Court voices their concerns. It is true that these applicants are not extolled or applauded by the Court, but that is understandable. Praising such claimants as idealised members of the western norm would have been illogical and would have decreased the Court’s credibility. After all, most are criminal convicts. Moreover, as postcolonial theorists point, racialisation of those perceived as not belonging to the polity is not always complemented by affirmative positive statements about those who belong. Instead, it is simply taken for granted that the latter belong and constitute the norm.
Although the two sets of cases that I analyse are illustrative only and too small for a truly meaningful comparison, they are nevertheless suggestive and indicate some discourse patterns that demand scrutiny. How can such discourse differences in how the Court approaches CEE and EU-15 applicants be explained? Both sets of cases were decided within the same time frame (2006–2010), so within the same socio-political context.Footnote 39 One might wonder whether negative discourse appears correlated with negative substance. After all, court credibility is better maintained when there is no dissonance between discourse and the substantive outcome of its rulings. It is true that the actual rulings produced negative outcomes for both Mr. Kozlowski and Mr. Turansky, whereas three of the four western claimants discussed (Kretzinger, Van Esbroeck and Kraaijenbrink) benefited from the respective ECJ rulings in that the ne bis in idem principle was found to bar their later prosecutions. However, even in the one western case with a negative outcome (Mantello), the Court did not adopt inferiorising discourse. Moreover, the underlying crimes were less morally reprehensible in CEE than in western applicants’ cases: suspected robbery (in Turansky) and property destruction and fraud (in Kozlowski); versus drug-related crimes, including a drug ring (in Mantello, Van Esbroeck and Kraaijenbrink), and smuggling contraband goods (in Kretzinger). Also, all four western applicants had already been convicted of crimes central or related to their ECJ applications, whereas only one of the two CEE claimants (Mr. Kozlowski) had been. Thus, negative discourse is not clearly correlated with the underlying substance of the cases discussed. Importantly, what both postcolonial theory and CDA emphasise is that both implicit and explicit language is power, by re-producing and naturalising inferiorisation, along with concomitant subordination and unequal outcomes. Thus, it does not matter whether inferiorisation affects or offers additional support for the actual case outcomes or is related to the substance of underlying domestic cases. What matters is that such discourse exists.
Free Movement Cases
As a cornerstone of the single market, freedom of movement of personsFootnote 40 constitutes a central aspect of the EU integration project. Serving not only as a tangible symbol of integration, but also as a prerequisite for the exercise of most other EU rights, including the right to equality (Johns 2013), the right of mobility carries great social, economic and political importance. Notably, all the cases discussed in this subsection were decided by the ECJ composed as Grand Chamber or Full Court, pointing to the importance of this right to the evolution of EU law.
Directive 2004/38 (the ‘Free Movement Directive’)Footnote 41 provides all EU citizens with the right to reside in other Member States for up to 3 months. For longer stays, economically inactive movers must have comprehensive health insurance and ‘sufficient resources’ so as ‘not to become a burden on the social’ welfare system of the receiving State (Article 7(1)). After 5 years of lawful residence in a host State, movers gain the right of permanent residence (Articles 16–17). From day one of qualifying as a ‘worker’ or a jobseeker in a receiving State, access to that State’s social security benefits,Footnote 42 social and tax advantagesFootnote 43 and social assistance (Article 24(2)) follows. After the first 3 months of residence, economically inactive movers are also granted equal access to social assistance, as long as they can demonstrate financial self-sufficiency (Article 24). Although host States are permitted not to grant first-time jobseekers from other States any social assistance (Article 24(2)), the ECJ has mandated that they be given equal access to financial benefits ‘intended to facilitate access to the labour market’.Footnote 44
Notably, the free movement right has been a highly politicised issue in the context of CEE nationals’ mobility. It constituted one of the most contested topics during the Eastern Enlargement process, unpopular among western citizenry and officials (Currie 2016). Allegedly fearing ‘welfare tourism’—although studies indicated that such concerns were not warranted (Dougan 2004)—EU-15 States imposed temporary restrictions on CEE workers’ mobility for up to 7 years after the Eastern Enlargement.Footnote 45 When these transitional limitations were coming to an end, renewed popular and political debates about ‘benefit tourism’ and ‘poverty immigration’ spread across EU-15 States (Galgóczi et al. 2011; Poptcheva 2014). Reflecting such western concerns, the ECJ has been limiting the rights of economically inactive movers, starting with its decisions in BreyFootnote 46 and Dano (discussed below) (Myslinska 2019). This recent line of cases, consistent with the increasingly restrictive EU-15 policies targeting CEE movers (Eurofound 2014), propagates the notion of EU citizens’ need to ‘earn and deserve’ their right to move and to draw on social benefits (Kramer 2016).
Ziolkowski and Szeja v Land Berlin
This joint case pertains to Mr. Ziolkowski and Mrs. Szeja, Polish nationals who had arrived in Germany in the late 1980s and were granted a right of residence on humanitarian grounds. In 2005, Mr. Ziolkowski, Mrs. Szeja, and her two children (born in Germany) applied for permanent residence in Germany. Their applications were refused because they were found unable to support themselves economically. The German court referred the following questions to the ECJ: (1) whether periods of residence in the host State completed in compliance with national law alone may be regarded as periods of legal residence under the Directive; and (2) whether periods of residence completed by nationals of a Member State before its accession to the EU must be considered in calculating the 5-year period for acquiring permanent residence under the Directive. The Court was presented with the parties’ arguments, the AG’s opinion, and observations submitted by three Member States and by the Commission. The Court concluded that the term ‘legal residence’ referred only to periods of residence in compliance with the Directive conditions (that is, being a worker or having sufficient resources). Although the Court answered the second question in the affirmative, it noted that any pre-accession periods of residence also had to be completed in compliance with the Directive’s conditions. Due to this formalistic reading of the Directive’s residency requirements, the Applicants could not prove their right to residence.
ECJ Discourse
Similarly to the criminal cases addressed earlier, the Court employs various discourse practices to present itself as authoritative and its decision as logical—by referring to itself in the third person, laying out EU law in great detail (beyond what is relevant to the questions before it), and repeatedly relying on phrases such as ‘it must’, ‘it follows’ and ‘it is apparent’. Moreover, when describing its interpretation of EU law, the Court refers to ‘settled’ case-law and notes that there is ‘no valid basis for contrary interpretation’ (para 32). When discussing question one, the Court mentions select observations submitted by the Commission, the referring court and some Member States, but only parenthetically and only when the Court agrees with them or when the Court’s contrary position is easy to defend, thus increasing its legitimacy. It does not mention the AG’s opinion at all, perhaps in part because the AG had reached different conclusions than the Court.
The Court’s treatment of the Applicants, and of movers more generally, is dismissive. It makes no mention of Mr. Ziolkowski and Mrs. Szeja’s arguments and never refers to them by their names other than when laying out the factual background. Instead, they are called the ‘applicant(s)’ on ten occasions. More generally, the Court mentions the free movement right and the concept of EU citizenship in passing only, which is surprising given their importance to the EU integration project.
Notably, the Court includes many negative details not pertinent to its decision and makes unwarranted negative inferences about the Applicants. For example, the Court points that Mrs. Szeja’s children’s father is ‘a Turkish national who lives separately’ from them (para 19). Characterising her as a single mother of multiple children whose father is not an EU citizen might tap into negative stereotypes of poor migrant mothers who deviate from the norms of acceptable behaviour (Omi and Winant 2015). It also differentiates her whole family from those who firmly belong to the EU polity based on shared culture and ethnicity (Balibar and Wallerstein 1991). Furthermore, the Court notes that the referring court had found both Applicants not able to support themselves financially, and points how the Directive’s intention was to ‘prevent such persons [from] becoming an unreasonable burden on the social assistance system of the host Member State’ (para 40). These details only add to the image of Mr. Ziolkowski and Mrs. Szeja as undeserving of EU law’s protection and of the right to reside in Germany, while tapping into ‘welfare tourism’ concerns targeting CEE movers in western exclusionary politics and popular discourse. Their racialisation is further supported by drawing class-based and economic differences between those who belong and those who do not (Grosfoguel 2004).
AG Opinion
Although the AGFootnote 47 acknowledges movers’ interest in integration and points that movers’ ‘material circumstances’ alone do not determine their integration (para 55), he paints a picture of the Applicants as not being part of the EU polity and not the type of movers for whom EU integration was intended. For example, the AG mentions that Mr. Ziolkowski had resided in Germany since the age of 12, had undertaken part of his education there and had a child of German nationality, and that Ms. Szeja had lived in Germany for 20 years and had children born there (para 56). Although such factual details might have been included simply for pragmatic reasons—to support the AG’s conclusion that periods of residence completed on the basis of national law alone should also be taken into account for acquiring residence right under the Directive—they also tap into negative stereotypes of movers who have children in host States and expect host State support, despite having lived there for decades. Furthermore, the AG does refer to numerous negative factual details not clearly relevant to his analysis. For example, although the AG does not mention the ethnicity of Mrs. Szeja’s children’s father, he does note that the father lives separately (para 24). Moreover, the AG includes additional negative background, which is not repeated by the Court—for example, that Mr. Ziolkowski had not completed an apprenticeship which he had started, was unsuccessful in setting up a cleaning business, and was dependent on social security benefits (para 16).
Notably, although the AG does not directly attribute Mr. Ziolkowski’s and Mrs. Szeja’s financial difficulties to them, he does not connect their problems to any institutional impediments they might have faced in Germany. Thus, implicit in the opinion are the Claimants’ own shortcomings in failing to support themselves and their children. This again taps into western exclusionary politics and recalls popular perceptions of CEE movers as unable to integrate in the west—due to their sexuality, poverty and living and employment circumstances (Moore 2013). Any role that the increasing labour precarity in the west or any institutional discrimination in Germany—reinforced by east/west economic, political and cultural power imbalances—might have had in contributing to their struggles is overlooked in this dominant discourse, which reproduces their inferiority and the prevailing racial stratifications (Grosfoguel 2004; Go 2018).
Dano v Jobcenter Leipzig
Ms. Dano and her son, Romanian nationals, had been living in Germany since 2010 with her sister, on whom they depended financially. Ms. Dano was 20 when she had her son and was raising him alone. Although she was receiving child benefit and social assistance for her son, the German government denied her a special non-contributory cash benefitFootnote 48 (‘SNCB’) due to her economic inactivity. The German government argued that she had moved to Germany for the sole reason of claiming benefits, which excluded her from access to SNCBs under German law. The ECJ was presented with the following questions: (1) whether the SNCB at issue fell within scope of Regulation 883/2004 mandating equal treatment between movers and host State nationals in the coordination of social security systems; (2) if so, whether Ms. Dano was entitled to it; (3) if not, whether she should be entitled to it under general EU equality provisions. In addition to the parties, five Member States and the Commission submitted observations.
The Court ruled that the SNCB at issue fell within the scope of Regulation 883/2004 and so could be granted only in accordance with the legislation of the claimant’s State of residence. Moreover, the Court stated that, despite a fundamental EU Treaty right of non-discrimination, the Free Movement Directive allows host States not to confer social assistance to movers present in the host State for more than 3 months who are not workers or financially self-sufficient. Finally, the Court concluded that the Directive, read in conjunction with Regulation 883/2004, does not preclude national legislation which prevents movers who lack the right of permanent residence under the Directive from accessing certain SNCBs. Thus, Ms. Dano was not entitled to the benefits in question.
As a result of this judgement, an economically inactive mover’s application for social assistance benefits results in losing the right to reside (due to lacking sufficient resources), without the need for an individual assessment. Moreover, Member States do not have to provide SNCBs to economically inactive movers (even if they are available under secondary EU legislation)—at least not to those who, like Ms. Dano, had never been employed in the receiving State and did not provide sufficient evidence of having searched for work. In effect, poorer movers and those who move without first securing jobs in host States do not enjoy the same rights as movers who are employed or have financial resources. This disadvantages movers from CEE States, who tend to have few financial resources, engage in precarious employment (e.g. Ciupijus 2012; Drinkwater et al. 2009; McDowell et al. 2009; Barnard et al. 2018) and experience difficulties with having their home qualifications recognised in the west (Maas 2013).
ECJ Discourse
Throughout this judgement, the Court uses the same discursive techniques as in the judgements discussed above to present itself as authoritative, logical and impartial. Thus, the Court refers to itself in the third person and uses phrases such as ‘it follows’, ‘it is apparent’ and ‘it must be’ throughout its discussion. It also quotes long passages of EU statutory law, beyond the scope of what is at issue. The Court refers to the AG’s opinion only where it is supportive of its own reasoning, and does not engage with it, but instead channels it through its own words. There is also no mention of any of the (western) Member States’ observations, although they were most likely in agreement with the Court’s reasoning. Perhaps the Court wants to maintain the appearance of impartiality by not referring to arguments of the Member States who clearly stand to benefit from its ruling, which protects host States’ purses.
Despite describing fundamental rights under EU Treaties, the Court only engages with one component of these far-reaching rights — the concept of non-discrimination under the Directive, which is much narrower than under the Treaties. This might have been a strategic decision, facilitating the Court’s decision that movers’ fundamental rights are not violated in circumstances such as in this case. Of course, mentioning fundamental rights, not directly needed to reach its conclusion, also serves to provide the Court with a clout of moral authority and helps to obscure the actual negative impact of this decision on poorer movers.
The Court consistently emphasises only one interest—of preventing movers’ becoming an unreasonable financial burden on host States. Being such a burden is contrasted with gaining the right of permanent residence and with integrating in the host State (para 72), implying that movers who are not financially self-sufficient are incapable of integrating and are undeserving of residence rights. Economic status determines belonging and rights, as class-based racialisation is both portrayed as a long-term circumstance and conflated with negative character attributes (Balibar and Wallerstein 1991).
The Court silences Ms. Dano’s voice by not acknowledging her interests, even though she was represented at the hearing, and by making negative inferences about her. Notably, other than in the factual background section, Ms. Dano is mentioned only once, when the Court asserts that ‘[i]t is apparent from the documents before the Court that Ms Dano … is not seeking employment and that she did not enter Germany in order to work’ (para 66). The Court never explains details of this evidence.Footnote 49 Moreover, the Court points that a ‘Member State must … have the possibility … of refusing to grant social benefits to economically inactive Union citizens who exercise their right to freedom of movement solely to obtain another Member State’s social assistance although they do not have sufficient resources to claim a right of residence’ (para 78). What had led the Court to implicitly characterise Ms. Dano as having entered Germany solely to obtain social assistance is not clearly substantiated. Even if she had not originally entered Germany specifically to seek work (para 66), that does not automatically mean that she entered it solely to rely on social assistance. The link between these two concepts is never made clear. She could had entered Germany for many other reasons, such as a desire to be with her sister, especially given that she was a young single mother, or a desire to provide better future opportunities for her child. Moreover, mover’s intentions might change after she enters a host State. All such potential explanations are overlooked. Instead, the Court stigmatises her as not belonging to the western norm by imparting a negative meaning to her social practices (Omi and Winant 2015; Keskinen and Andreassen 2017). Postcolonial framework seeks to expose and ultimately to disrupt such inferiorising constructions (Spivak 1999).
In addition, the Court refers to several negative facts not relevant to its conclusions. For example, it mentions how Ms. Dano had been receiving public support for her child ‘whose father’s identity is not known’ (para 38), had attended school for only 3 years, did not obtain any educational certificates or professional training, could not write in German, had never worked and had not provided evidence of having looked for work (para 39). Such details would have been relevant to a proportionality analysis, which was not applicable in this case. Through such discourse, the ECJ creates an impression of someone who does not deserve protections of EU law. Instead, Ms. Dano is portrayed as an embodiment of a ‘welfare tourist’ and a type of mover who would never be able to integrate — or, perhaps, is even too undesirable for the host State to want her to integrate. Thus, the Court relies on implicit and explicit racialising discourse to present her as an inferior outsider, while affecting her material outcome through its ruling (Kushner 2005).
AG Opinion
Similarly to the ruling, the AGFootnote 50 emphasises the importance of protecting host States’ purses. The AG refers to fundamental rights even less than the Court does, and instead prioritises each host State’s interests in setting social benefit amounts ‘in light of its own economic and social situation’ (para 48). To support this view, the AG relies heavily on portions of the AG Opinion from Brey,Footnote 51 which addressed host States’ prerogative to prevent economically inactive movers from ‘using the welfare system of the host Member State to finance their livelihood’ (para 94). Again, such references tie into the dominant public and political discourses in western States, while re-producing western values and norms (Kinnvall 2016; Zielonka 2007).
Also like the Court, the AG deprives Ms. Dano of her voice and draws negative inferences about her. The AG does not mention any of her arguments and consistently refers to her and her son as ‘the applicants’, without even capitalising this term. The AG’s discourse is permeated with even more negative facts and negative assumptions about Ms. Dano than the judgement is. For example, the AG mentions that she had been ‘convicted for crimes against property and assets’ (fn 5). The AG then acknowledges that such details, which had been noted by the referring court, do not bear on the questions before the Court (id). It begs the question of why the AG restates them. Also like the Court, the AG explicitly attributes negative intentions to Ms. Dano—that she had moved ‘solely in order to benefit’ from the German welfare system (para 118) and ‘without intending to integrate’ in Germany (para 131). The AG draws these inferences without explaining what evidence supports them. This discourse racialises her as a parasitic outsider to the (western) EU polity, in line with western discourse.
As the AG Opinion progresses, it becomes more explicit in its nefarious assumptions and implications, even going beyond what the German government was asserting. Instead of relying on legal arguments, the AG resorts to citing academic work to support his assertion that Member States should be afforded discretion in awarding social benefits to ‘prevent “abuses of host law” in the form of benefit tourism’ (fn 47). Despite acknowledging that the referring court ‘provides no precise information about the existence of such a risk’, the AG points that allowing movers to access social benefits ‘might encourage immigration of Union citizens whose average income is considerably lower’ than that in the host State (para 133). In addition to mentioning ‘immigration’ in the aforementioned statement, the AG also refers to persons in Ms. Dano’s position as ‘migrants’ (para 133, fn 47) — a concept that does not apply to EU citizens, who are by definition ‘movers’. Thus, in line with western exclusionary politics (Kinnvall 2016) and negative media portrayals (Garner 2012), Ms. Dano and potential movers from poorer (such as CEE) States are characterised as welfare spongers and outsiders to the EU polity. The image of her otherness is strengthened by, incorrectly, setting her apart as an immigrant (Balibar and Wallerstein 1991), reminiscent of how some members of the western public conflate CEE movers with undocumented migrants (Halej 2014). Moreover, without relying on any evidence, the AG asserts that it is ‘likely that, in circumstances such as those in the main proceedings, recourse to the social assistance system will not be temporary but will be prolonged indefinitely’ (para 134). By portraying Ms. Dano and movers of similar backgrounds as hopeless and as permanent drains on western States’ purses, this rhetoric conceptualises them as threatening outsiders, not deserving of EU law’s protections or of belonging in EU-15 States. This is also in line with how the CEE region was incorporated into the EU — as a subordinate cultural group (Tutti 2010), populated by ‘second-class’ EU citizenry (Currie 2009).
Comparison to How Western Applicants Are Represented
Among the examples I had reviewed, CEE applicants’ racialisation appears more severe in cases pertaining to their mobility than in criminal cases, likely due to how politicised the former issue has been. The scathing nature of discourse inferiorising CEE movers can be even better appreciated when compared to the Court’s much more embracing approach towards EU-15 nationals’ mobility.
For example, Collins v Secretary of State for Work and PensionsFootnote 52 concerned an American who, in his early 20s, had spent just over a year in the UK, as a student and doing casual part-time jobs. He had no other ties to any EU State. Relying on his Irish nationality (obtained as an adult), he arrived in the UK 17 years later, with the apparent intention to seek work. After being in the UK for 8 days, he applied for jobseekers’ allowance, which was denied. Despite ruling that Mr. Collins had no right to reside in the UK under EU law (and thus no right to jobseeker’s allowance), the Court begins its analysis of each of the three questions before it with a thorough discussion of his contentions (paras 21, 34, 45). Moreover, the Court consistently refers to him by his surname and does not express any negative views about his behaviour. Furthermore, the Court does not include many additional facts mentioned by the AG (some of which are relevant to the UK test for jobseekers’ allowance), which could have painted a more negative impression of Mr. Collins. Notably, the Court makes it clear that the label ‘benefit tourist’ could not be applied to him, despite the fact that he sought benefits after having been in the UK for only 8 days and without having any links to the UK. The Court repeats the Commission’s observation that, while the UK’s habitual residence test for access to some benefits may be necessary ‘to avoid ‘benefit tourism’ and thus the possibility of abuse by work-seekers who are not genuine, … in the case of Mr Collins the genuine nature of the search for work is not in dispute’ (para 50). The Court does not provide further details of why Mr. Collins could not be a benefit tourist, other than noting that he became employed in the UK ‘shortly after his arrival’ (id).
The AGFootnote 53 also acknowledges Mr. Collins’ arguments and refers to him by his surname throughout his opinion. Notably, despite mentioning facts that shed a somewhat negative light on Mr. Collins (paras 5–7, 23), the AG does not contemplate any negative implications of such facts. For example, Mr. Collins had left the UK 17 years earlier because he had become unemployed and had to claim benefits. He then spent the following decade working short-term and sometimes part-time in various professions (in sales, teaching and as an aid worker), in the USA, central Africa and South Africa. His application for permanent residence in South Africa was refused. He arrived in the UK on a return ticket. It would have been just as easy to characterise someone seeking jobseeker's allowance in Mr. Collins’ circumstances as an aimless benefit tourist, with no intention of integrating in the UK (or anywhere else), and whose only reason for obtaining Irish citizenship was to access EU rights. But neither the AG nor the Court even imagines such a possibility.
In Trojani v Centre public d’aide sociale de Bruxelles,Footnote 54 the Court also characterises a western mover in a positive light, despite factual details that convey an image of a mover whose contributions to the host State appear negligible at best. The case concerned a French national who had been briefly self-employed in Belgium in 1972 in the sales sector, and had returned there in 2000 to stay at a campsite and a hostel for about a year. Next, he secured accommodation and began receiving pocket money for doing odd jobs for 30 h per week at a Salvation Army hostel, as part of his ‘personal socio-occupational reintegration programme’ (para 9). Lacking any financial resources, he applied for Belgian subsistence allowance, which was denied. The Court found that, due to his temporary leave to reside in Belgium, he was a ‘worker’, with a right to claim social assistance. The Court’s references to him by his surname and a discussion of his interests throughout the judgement give him a voice and are in line with its ruling. The Court does not mention many facts (included in the AG’s Opinion) that might paint Mr. Trojani in a more negative light, and also does not draw any negative inferences about him.
The AGFootnote 55 similarly refers to Mr. Trojani by his surname and addresses his interests. Notably, the AG does not even allude to the possibility that Mr. Trojani might be a financial drain on Belgium, despite painting a bleaker picture than the Court does—noting that he has ‘no means of subsistence and has been living temporarily’ at Salvation Army (para 2), which had ‘taken [him] in’ because ‘he has no roof over his head and clearly meets the criteria for being given a shelter’, and which had assigned him tasks ‘as a step towards the reinsertion of the person in need into society’ (para 51).
Through neutral, and at times empathetic, discourse that engages with their interests and arguments, both Mr. Collins and Mr. Trojani are approached as members of the EU polity who could not possibly be undeserving benefit tourists. On the other hand, Mr. Ziolowski, Ms. Szeja and Ms. Dano are portrayed as parasitic outsiders who are incapable of integrating, present a drain on western resources, and are not fully entitled to EU rights. They are not only second-class EU citizens, but unwelcomed outsiders to the proper EU polity.
Such differences in discourse cannot be simply attributed to the substantive outcomes of these cases. It is true that the Court’s rulings in both Ziolowski and Szeja and Dano produced negative repercussions for the Applicants, in line with the negative discourses employed in those judgments. But, despite their respectful discourses towards the Claimants, the actual substantive rulings in both Trojani and Collins were not unambiguously positive. The Court determined that Mr. Collins was not a worker under EU law. Moreover, according to Collins, EU equality protections do not preclude national legislation which makes entitlement to a jobseeker’s allowance conditional on a residence requirement (as long as it meets the proportionality testFootnote 56). Similarly, although Mr. Trojani was deemed a worker, the Court acknowledged host States’ discretion in determining under what circumstances to provide movers with access to benefits.Footnote 57 In addition, the Court confirmed host States’ ability to limit EU citizens’ Treaty rights to free movement and residence as long as any such limits meet the proportionality test. Thus, in both these cases, the Court emphasised host Member States’ interests more than movers’ interests.
One might be tempted to attribute differing discourse observed in these two sets of cases to the dates when they were decided. After all, transitional mobility derogations imposed against CEE States acceding in 2004 were coming to an end in 2011 (when Ziolkowski and Szeja was decided), and against Bulgaria and Romania in 2014 (when Dano was decided), prompting massive public fears in the west over an influx of CEE movers. Moreover, during this time period, all EU institutions had begun to curb mobility rights and to tolerate western political discourse and policies targeting CEE movers (Myslinska 2019). That being said, however, timing differences alone cannot explain discourse differences illustrated above. At the time Collins and Trojani were decided, in 2004, the western public had already expressed concerns over CEE mobility (leading to the imposition of post-accession transitional arrangements). In fact, the notion of ‘benefit tourism’ had already become a highly contested issue in the west before the first wave of the Eastern Enlargement occurred in May 2004. Neither the Court nor the AGs in Collins and Trojani, however, contemplated that this concept could be applied to western movers.
Moreover, even in later cases, ECJ discourse appears respectful towards western movers, regardless of their potential financial drain on host States and regardless of the substance of the underlying rulings. For example, Geven v Land Nordrhein-WestfalenFootnote 58 concerned a Dutch national who, after her statutory maternity period had ended in the Netherlands, was working in Germany between 3 and 14 h per week. Her application for child-raising allowance in Germany was refused because she was not a resident there and was found not to be ‘employed’ under German legislation (which required at least 15 h of work per week). Despite ruling that EU law did not preclude such national legislation making frontier workers engaged in minor employment ineligible for social advantages, the Court does not portray her attempt to obtain child-raising allowance in a negative light. Neither does the AG.Footnote 59 Both voice her interests and refer to her by her surname. Similarly, Bosmann v Bundesagentur für Arbeit - Familienkasse AachenFootnote 60 concerned another western frontier worker’s access to benefits. A Belgian national residing in Germany with her two children (who were studying in Germany) had been receiving German child benefits, which were discontinued after she took up employment in the Netherlands because, at that point, only Dutch law was deemed applicable. The Court ruled that it was up to the German court to determine whether she still resided in Germany and hence were eligible for social security there. Both the Court and the AGFootnote 61 refer to her arguments and to her by her surname throughout their discussions, and do not portray her attempt to obtain benefits in a negative light. By the time Geven and Bosmann were decided (in 2007–2008), transitional mobility derogations imposed against CEE States acceding in 2004 had already come to the end of their first 3-year period, which had led to renewed western public and political apprehensions about movers’ alleged financial drain on host States. Yet no such concerns are even implied in these two decisions.
Notably, Geven and Bosmann present stark contrast with how ECJ discourse approaches mothers in Szeja and Dano. Both Mses. Szeja and Dano are condemned - for being single mothers who draw on host State benefits to support their children, fathered by, respectively, a non-EU national and by someone unknown. Moreover, both are portrayed as the types of persons who are likely to become permanent financial drains on the host States, that is, ‘welfare tourists’ who are incapable of integrating and hence do not deserve access to all the benefits that stem from the right of EU citizenship. On the other hand, Mses. Geven and Bosmann are portrayed as proper, respectable mothers who are entitled to host State support, as long as they satisfy all the eligibility requirements. The Court in Geven notes irrelevant details that portray the Applicant as a respectable mother, mentioning that ‘[w]hen her son was born … she was living in the Netherlands with her husband, who worked in that Member State’ (para 7). The AG also includes those details. Notably, in Bosmann, the Court never uses the phrase ‘single mother’, which might carry negative connotations. Instead, throughout its judgement, the Court refers to her as a mother who has been ‘bringing up’ her children ‘on her own’ (paras 9, 13). The Court also does not refer to her children’s father(s). Although the AG does call her a ‘single mother’ (paras 11, 32), he does emphasise that national legislation treating a ‘single mother’ less favourably than ‘a mother forming part of a couple’ (para 32) would not be permissible. Thus, unlike Mses. Szeja and Dano, Ms. Bosmann deserves equal access to social benefits to help support her children. Despite being a single mother, she is not inferiorised but instead, she belongs to the EU polity.