The principle of non-discrimination is not necessarily a threat to welfare and the vision of a social Europe
On 11 November the European Court of Justice (ECJ) ruled that two Romanian nationals, and therefore EU citizens, Elisabeta Dano and her son, Florin, could legitimately be denied the right to claim benefits in Germany designed to cover the recipients’ subsistence. The Jobcentre in Leipzig had denied these on the grounds that the claimants had not worked and had not been seeking work. They were therefore interpreted – legitimately, according to the ECJ – as exceptions to general provisions on non-discrimination between EU citizens in EU law.
Unsurprisingly, given recent public debate on ‘benefit tourism’ (‘poverty migration’ in Germany), the decision was widely covered in the British media. For some, it demonstrated that David Cameron (and, indeed, UKIP) had been creating an issue where there was not one; provisions in EU law entitle member-states to impose certain conditions on non-national EU citizen welfare claimants. For the UK government, the Court’s decision strengthened the UK’s position in relation to the European Commission’s claim that the UK illegally prevents some EU citizens from accessing benefits. It is probably too soon to say what the full implications of this judgement are for the UK’s own policies and individual cases will no doubt be judged on their particular merits.
This post focuses not on the legal complexities relating to free movement and access to welfare (interesting as they are). Instead, it poses the broader question: what position should a social democratic or progressive politics take in relation to issues of free movement of EU citizens and their right to welfare?
A progressive politics is faced with a genuine dilemma in relation to such issues and a case like that of the Dano family. On the one hand, it might be sympathetic to their claim to welfare. Aware of the structural conditions and poverty that precipitates such cases, it might argue that, if the EU is to promote a genuinely post-national social cohesion, then it should require member-states to provide assistance to those EU citizens in greatest need, regardless of nationality. More generally, it might highlight and be supportive of the various societal benefits of free movement, including for the working classes; its potential to expand the boundaries of solidarity. It might, in short, support a strict principle of non-discrimination and oppose the invocation of conditions of any sort.
On the other hand, a progressive’s sympathy for the plight of the family concerned might be outweighed by a concern that the non-discrimination principle enshrined in EU law will have the consequence of eroding national welfare settlements in general. As De Witte has argued, ‘where bonds of reciprocity are stretched to include citizens who are perceived not to “deserve” access, and the communal willingness to fund social structures decreases, it is, crucially, not only the migrant Union citizen that loses out on social benefits but also the immobile citizen who has remained within his own state’. The danger from this perspective is that a strict application of non-discrimination leads to a Europe that, as Menendez has evocatively put it, is ‘more human but less social’.
At the heart of this dilemma is the fact that many on the left are, as Favell has suggested, ‘emotionally cosmopolitan but viscerally nationalist in their conception of how markets are to be controlled or governed’. In the case of EU citizens and free movement, this has recently led to a somewhat reluctant social democratic argument (of the sort put forth by Goodhart) in favour of the imposition of some sort of discrimination on the basis of nationality in an attempt to rescue the welfare state.
But is the principle of non-discrimination necessarily a threat to principles of welfare and a so-called social Europe? I argue that it isn’t.
First, we need to see that the question of ‘deservingness’ is not fixed, but very much open to political manipulation. In the UK politicians of various stripes have been predisposed to promote the perception that certain EU citizen claimants (along with a variety of other categories, it should be said) are undeserving and have used this as the pretext for general welfare cuts. A progressive politics ought to highlight the gaps between rhetoric and reality, point to the fact that ‘welfare tourism’ is not easily defined or quantified and draw attention to evidence of the overall economic benefits of free movement.
Second, and more fundamentally, progressives should highlight that the more important threats to social settlements emanate from elsewhere. Since at least the 1980s, the EU/ECJ has chipped away at member-states’ autonomy in a range of areas – such as tax regulation, corporate law and labour law – which have had significant knock-on effects for the social settlements of those states and contributed to increasing inequality. Of late, the current austerity agenda has served only to exacerbate further this EU-led hollowing out of national welfare. These issues, not non-discrimination of EU citizens, should be the main focus for the left.
The upshot of this argument is that a European social model that is to some extent ‘both human and social’ – surely the aim of a truly progressive politics – would require both a short-term defence of non-discrimination and a long-term promotion of an EU citizenship that amounts to more than a negative right to non-discrimination in EU space.
This is in effect to assert a stronger (not weaker) EU citizenship, underpinned by a greater degree of re-regulation (of, inter alia, finance, tax, corporations and labour law), fiscal centralisation and greater re-distribution at the EU level. This would leave room for national and sub-national autonomy, but at the same time go far enough to establish the preconditions for a genuine European social contract and associated citizenship.
Perhaps such an aspiration is idealistic, given the overwhelming cultural and structural barriers involved. The problem is that any alternative to this more substantive vision of EU citizenship leaves progressives stuck with the difficult choice identified here between the ‘human’ and the ‘social’.