RESUMO
Legal uncertainty may hinder the effective implementation of public policies. Still, the political and legal dynamics that underpin its persistence are underexplored. This article proposes that legal uncertainty is more likely to persist in multi-level political and legal systems where actors with authority on the same issue hold different interpretations of rules. Also, it suggests that, under these conditions, actors can use legal uncertainty as an opportunity to advance their own interests. We illustrate this argument by investigating the legal uncertainty concerning EU citizens' access to social benefits in Germany. Through the analysis of social legislation and courts' rulings, the article shows that different interpretations of EU law by domestic actors hindered the possibilities of settling uncertainty: national courts of different levels used litigation processes and referrals to the Court of Justice of the European Union to advance their legal interpretations and the German government profited from the uncertainty to exclude EU citizens from social benefits.
RESUMO
In the context of the 2004 Enlargement, several EU governments reformed their social legislation to restrict the access to benefits of job-seeking or inactive EU citizens. Many of these restrictions were in tension with the case-law of the European Court of Justice, but when it came to judge their compatibility with EU law, the ECJ was more lenient than many anticipated. This article analyses this shift in ECJ case-law by looking at the dialogue between the Court and national authorities against the backdrop of EU legislative reform. It demonstrates that Member States contributed to the evolution of case-law by 'pushing the boundaries' of EU law both domestically and before the Court. It shows in particular how closely the arguments presented before the Court by national judiciaries or governments correlate with the new interpretations adopted by the Court itself. This is illustrated with empirical evidence from the UK and Germany.