Not Quite Right: Representations of Eastern Europeans in ECJ Discourse

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.