Building Social Europe Requires Challenging the Judicialisation of Citizenship Susanne K. Schmidt Which rights should European citizenship entail to protect the achievements of European integration, while overcoming its pitfalls? Should we aim to ‘add stuff’, as Ferrera suggests, or rather follow Joppke’s plea for nonexclusive citizenship rights? I agree with Ferrera’s diagnosis that EU citizenship has an isopolitical bias, it horizontally opens nationally shaped (and financed) welfare systems to citizens from other member states. However, in his ‘detecting of the flaws’ he overlooks the largely judicial genesis of citizenship rights, which are crucial for understanding the shortcomings of EU citizenship. In the following, I start by filling this gap. Because Ferrera’s suggestions require political decisions, they are much welcome on this basis. Since Maastricht, EU citizenship saw an impressive advancement from a rather symbolic Treaty addition to being the ‘most fundamental status’ (C-184/99 Grzelczyk). In the light of van Gend (26/62), Costa (6/64), Cassis de Dijon (120/78), and multiple other rulings, scholars of European integration have taken for granted how much the Court of Justice of the European Court (CJEU) shapes policy in the EU by interpreting the many policy objectives the Treaty contains (four freedoms, competition law, and then citizenship). For citizenship, the judicial development implied an increasing pressure on nationally financed welfare states to open up non-discriminately to EU citizens, even if economically inactive, and with few and recent ties. But in late 2014 the CJEU made clear that those entering a state but never intending to work and contribute (C-333/13 Dano) have no European right to claim equal access to funds. Behind the extraordinary policymaking power of the CJEU is what Dieter Grimm calls over-constitutionalisation.1 An intergovernmental Treaty describing cooperation aims is policy-rich. If this Treaty is transformed into a constitution by declaring it directly effective and supreme, the Court’s Funding of Norface is gratefully acknowledged (www.transjudfare.eu). 1 Grimm, D. (2015), ‘The democratic costs of constitutionalisation: the European case’, European Law Journal 21: 460–473. © The Author(s) 2019 R. Bauböck (ed.), Debating European Citizenship, IMISCOE Research Series, https://doi.org/10.1007/978-3-319-89905-3_36 205