Has the Court changed, or have the cases? The deservingness of litigants as an element in Court of Justice citizenship adjudication

Abstract

In recent cases concerning mobile citizens and access to social assistance the Court has sided with Member States against the litigating citizens. Given that in early cases it sided with the litigants, this has created the impression of a change in judicial perspective. This article looks at the most discussed sub-set of cases, and argues that a more plausible explanation lies in the changing characteristics of the litigants themselves–recent claims for social assistance are based on less meritorious facts. This raises a broader issue about research into judicial decisions: Trends in outcomes cannot be analysed without taking account of possible trends in inputs. These may vary due to changes in skills or strategies at national courts or authorities, or social changes leading to different litigant characteristics. Unless accounted for, claims that a court is changing its approach will be unreliable.