Dominik Steiger on Access to Social Benefits in the European Union

In this post, network member Dominik Steiger (Berlin) explores one of the most complex and controversial areas of EU law: access to social benefits.  Focusing on the apparent retreat from the aggressive position staked out by the Court in the Grzelczyk case, Steiger identifies and explores an apparent conflict between national solidarity and European identity.

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Cutting Back on Equal Access to Social Benefits for EU Foreigners: National Solidarity vs. European Identity

European solidarity and national identity alike have been put to the test during recent years, especially during the banking and state debt crisis. In these days, Europe was on the verge of breaking apart. Angela Merkel appeared to complain about “lazy Greeks” and Greeks marched in the streets showing pictures of her as a Nazi. It took many legal documents and even more late-night sessions in Brussels, but Europe managed to handle the crisis. It rescued the banking system and the states alike – and, at least for the time being, European solidarity prevailed, even if states had to give up on some of the principles that they like to think to form part of their national identity.

Ivana Isailovic (McGill) and Uladzislau Belavusau (VU Amsterdam) on the Léger Decision

New network member Ivana Isailovic (McGill) has written to share the contribution below, cross-posted from the European Law Blog. Entitled "Gay Blood: Bad Blood? A Brief Analysis of the Léger Case," and co-authored by Ivana and Uladzislau Belavusau (VU Amsterdam), the piece explores the ways in which the decision -- raising as it does complex and interrelated issues of sexuality, public health, discrimination, and citizenship -- constitutes a missed opportunity.

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In April 2015, the Court of Justice delivered its judgment in Léger v. Ministre des Affaires sociales, de la Santé et des Droits des femmes; Etablissement français du sang. The case addressed the compatibility of national measures – here the French 2009 Ministerial Decree – permanently banning blood donations by men who had or have sexual relations with other men (MSM) with EU law. The Court found that these health policies could be justified in some circumstances, in light of the specific context prevailing in the Member State and the scientific knowledge and techniques available for detecting HIV in the early stages of contamination.

This judgment triggers a myriad of socio-legal questions pertaining to EU multi-level health governance, including the rising area of sexual risk regulation, as well as questions regarding EU sexual citizenship, and more particularly discrimination against LGBT individuals. The case, moreover, sheds light on the role scientific expertise plays in domestic and supranational courts and the interplay between legal discourse, scientific knowledge, rights, and identity politics. In this blog post, we offer a brief outline of the Court’s decision and highlight some of its controversial legal and normative aspects.