National Legal Assertiveness in the Shadow of the EU Case Law: The Case of Student Support

The paper engages with ongoing debates around the impact of case law of European Court of Justice on national welfare programmes in North-Western Member States. While the literature earlier suggested that Member States were able to ‘contain’ unwelcome case law that ‘opened up’ welfare benefits to previously excluded EU citizens, more recent literature shows a different picture by showing how Member States comply and sometimes even ‘over-comply’ in situations where the case law is unclear. As hypothesised by some scholars, this might force Member States to lower overall generosity and contribute to the retrenchment of public support programmes. This paper tests the validity of these claims on the basis of a comprehensive long-term case study of the Dutch student support system in the context of EU free movement law. Persistently challenged through its active domestic courts, the Dutch student support system has been subjected to the ECJ’s authority since 1986 and reveals a long chain of national policy responses. Drawing on the technique of process-tracing and employing a variety of methods including archival research and background interviews, it is demonstrated how the ECJ not only ‘opened up’ the Dutch student support system to previously excluded groups of EU students, but also decisively influenced the terms and conditions of access for national students. While no direct case of retrenchment was observed, the paper does identify occasions where legal uncertainties stemming from EU law blocked initiatives to expand student support programmes until the Dutch government to ‘take the risk’ and creatively interpret ambiguous rules and judgments as a way out of deadlock. The conclusion reflects on the virtue of national legal assertiveness as a necessary mechanism for the development of EU law in the absence of harmonisation.