The Futility of Judicialising Transnational Welfare

European integration, notably the single market, has much profited from case law of the ECJ, relying on the Treaty’s many policy goals and its supremacy and direct effect. Following the introduction of EU citizenship rights in the Treaty of Maastricht, the approach of using case law of the Court to push European integration along has been transferred to the area of welfare entitlements. As member states guard their heterogeneous welfare states, which are only coordinated at the level of the EU; case law based on citizenship, free movement rights, and the prohibition to discriminate along national lines has been used to build social Europe by granting access to each other’s welfare states. In this paper, I summarize the legal development, aiming to give EU citizens non-discriminatory access to member states’ non-contributory social benefits. Looking at the contested judicial development and its implementation at the member-state level, I find that rather than building social Europe, new inequalities arise. Given heterogeneous national welfare regimes, non-discrimination cannot guide the Court to bring about equality. As the welfare state relies on redistribution, the parameters of its opening to those that have contributed little to none, have to be politically decided.