Abstract
Although the increasing responsiveness of the Court of Justice of the European Union (the ‘ECJ’) jurisprudence to western Member States’ concerns regarding Central and Eastern European (‘CEE’) nationals’ mobility has garnered academic attention, ECJ discourse has not been scrutinised for how it approaches the CEE region or CEE movers. Applying postcolonial theory, this article seeks to fill this gap and to explore whether there are any indications that ECJ discourse is in line with the historical western-centric inferiorisation of the CEE region. A critical discourse analysis of a set of ECJ judgments and corresponding Advocate General opinions pertaining to CEE nationals illustrates not only how the ECJ adopts numerous discursive strategies to maintain its authority, but also how it tends to prioritise values of the western Member States, while overlooking interests of CEE movers. Its one-sided approach is further reinforced by referring to irrelevant facts and negative assumptions to create an image of CEE nationals as socially and economically inferior to westerners, as not belonging to the proper EU polity and as not quite deserving of EU law’s protections. By silencing CEE nationals’ voices, while disregarding the background of east/west socio-economic and political power differentials and precariousness experienced by many CEE workers in the west, such racialising discourse normalises ethnicity- and class-based stereotypes. These findings also help to contextualise both EU and western policies targeting CEE movers and evidence of their unequal outcomes in the west, and are in line with today’s nuanced expressions of racisms. By illustrating the ECJ’s role in addressing values pertinent to mobile CEE individuals, this study facilitates a fuller appreciation of the ECJ’s power in shaping and reflecting western-centric EU identity and policies. Engaging with such issues will not only allow us to better appreciate—and question—the ECJ’s legitimacy, but might also facilitate a better understanding of power dynamics within the EU. This study also makes significant theoretical and methodological contributions. It expands (and complicates) the application of postcolonial theory to contemporary intra-EU processes, while illustrating the usefulness of applying critical discourse analysis to exploring differentiation, exclusion, subordination and power within legal language.
Highlights
Oppressive language does more than represent violence; it is violence; does more than represent the limits of knowledge; it limits knowledge
The Court notes that the referring court had found both Applicants not able to support themselves financially, and points how the Directive’s intention was to ‘prevent such persons [from] becoming an unreasonable burden on the social assistance system of the host Member State’. These details only add to the image of Mr Ziolkowski and Mrs Szeja as undeserving of EU law’s protection and of the right to reside in Germany, while tapping into ‘welfare tourism’ concerns targeting Central and Eastern European (CEE) movers in western exclusionary politics and popular discourse
The cases discussed in this essay illustrate how the ECJ adopts various discursive strategies to maintain its authority,65 and how both the Court’s and the Advocate General (AG)’66 discourses tend to explicitly acknowledge and to prioritise values of western Member States and western
Summary
Oppressive language does more than represent violence; it is violence; does more than represent the limits of knowledge; it limits knowledge. Embedded within the long-standing western othering of the east, these colonial-like processes have supported accession practices that have incorporated CEE nationals as ‘secondclass’ EU citizens (Currie 2009) and a subordinate cultural group (Tutti 2010), and which might be linked to long-term unequal outcomes experienced by CEE movers in EU-15 States The ECJ has portrayed some CEE movers—such as the Applicant in the famous Dano case (discussed below)—as undesirable ‘welfare tourists’ and ‘migrants’, not belonging to the (western) EU polity, largely due to their lifestyle and economic characteristics Given such examples of inferiorisation, and because east–west power differentials. Western ideology othering the CEE region are at the core of my enquiry, postcolonial theory is relevant to this study
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