Driving a wedge between friends? : The Court of Justice of the EU and its citizens in the case of welfare benefits

Abstract

It is widely acknowledged that the Lisbon Treaty entering into force at the end of 2009 sparked the beginning of a potential constitutionalisation of the EU fundamental rights rhetoric. This is mainly due to the Charter of Fundamental Rights of the European Union becoming binding on all Member States, and the way in which the Treaty set out accession to the European Convention on Human Rights. Integrating a rights discourse into the Court of Justice of the EU’s decision-making initially appeared to be a normative possibility because of these constitutional changes. However, the reality has not been so positive, and arguably can now be considered a missed opportunity. A number of recent cases heard before the CJEU, for instance, have highlighted the relative weakness of the Lisbon Treaty’s provisions on fundamental rights. This article evaluates how and why reality has differed from early projections by using the CJEU judgments on welfare benefits as case studies.The article argues that the high standard of rights protection as exhibited in a number of past cases raises questions in respect of the Court’s judicial decision-making in the present day.