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Irina Domurath
To cite this article: Irina Domurath (2013) The Three Dimensions of Solidarity in the EU
Legal Order: Limits of the Judicial and Legal Approach, Journal of European Integration, 35:4,
459-475, DOI: 10.1080/07036337.2012.704630
ARTICLE
IRINA DOMURATH
Ph.D. student, Department of Law, University of Iceland, Reykjavı`k, Iceland
The Lisbon Treaty has advanced the legal construction of the concept
by completing a three-dimensional understanding of solidarity: solidarity
between member states, between member states and individuals, and
now also between generations (Article 3 (3) TEU). Moreover, the Treaty
has made the 2000 Charter of Fundamental Rights part of primary law,
Article 6 (1) TEU. The Charter contains a ‘Solidarity’ chapter, dealing
with, for example, the economic and social protection of the worker’s
family. This is especially significant for solidarity between member states
and individuals, as the Charter uses the concept to underpin the eco-
nomic internal market with a social dimension.
Despite the increasing importance given to solidarity in the EU, knowl-
edge about the concept is incomplete. Solidarity is not defined in European
legislation and the concept is underdeveloped. Moreover, there is a research
gap in academic literature as regards the holistic analysis of the different
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dimensions of solidarity. The author will attempt to close the research gap
and deepen the knowledge about solidarity in the EU legal order by inferring
an understanding of solidarity from linguistic and sociological sources and
then applying it in different legal contexts. It will be analysed how the con-
cept is advanced in socio-economic law and to what extent this approach
translates to other fields of law. In this way, the author can extend findings
from the socio-economic field, where solidarity is most pronounced, to soli-
darity-provisions that have been introduced to the EU legal order with the
Lisbon Treaty: solidarity with regard to environmental disasters, Article 222
TFEU, and solidarity with future generations, Article 3 (3) TEU.
ment with host member state nationals concerning access to social benefits
was granted irrespective of the financial situation of the non-national (fur-
ther reference Craig and De Búrca 2008, 850; Giubboni 2010, 171–2;
Trojani C-456/02, Paragraph 43). In Grzelczyk (C-184/99), a ‘certain finan-
cial solidarity’ had developed due to a ‘certain’ degree of integration into
the host society after three years of residence, but was restricted by the
requirement to not become an unreasonable burden on the national society
(also Bidar C-209/03, paragraph 60). Concerning individuals who have just
arrived, the member state can impose further requirements before granting
access to social security schemes (Collins C-138/02, paragraphs 67, 70, 73).
The approach of taking as a basis the degree of integration into the host
member state has been incorporated into Directive 2004/38 on the right of
citizens of the Union and their family members to move and reside freely
within the territory of the member states, see for example Article 24 (2) (fur-
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ther reference Barnard 2005b, 1465–89, 1480; Somek 2007, 8 et subs.; con-
cerning the tension of the ECJ’s approach with Directive 2004/38/EC,
Giubboni 2010, 166–97, 187).
The ECJ has developed this rights-based approach by using fundamental
EU citizenship rights to depart from the economic paradigm of the internal
market and underpin it with a social dimension and, thus, projecting
social solidarity beyond the traditional beneficiaries of the economic free-
doms (Mazák 2008, paragraph 54; also Sharpston 2010, paragraphs 77 et
subs.; see Barnard 2010, 73–05, 74, with further reference to Davies
2010, 106–21, 118–9; also Ross 2010, 23–45, 31).2 Taking into account
the rights to social assistance of non-economically active persons and the
protection of the worker’s family in Articles 33, 34 of the Charter of Fun-
damental Rights – even before it became primary law – the ECJ has
extended the concept of financial solidarity to non-economically active
individuals such as the unemployed, family members, and students. In this
way, European citizenship is in itself a mirror of solidarity. It brought
about the understanding that the right to access solidarity welfare schemes
is bestowed upon citizens directly by virtue of their status as a citizen of
the Union (Baumbast C-413/99, paragraph 84; Mazák 2008, paragraphs
54, 55; Zambrano C-34/09, paragraphs 43–4; further reference Ferrera
2005, 136). Citizens are not ‘resources’ employed to produce goods and
services on the internal market, but individuals bound to a political com-
munity and protected by fundamental rights (Sharpston 2010, paragraph
127, see also Somek 2007, 7–8).
the individual has shown a certain degree of integration into the host soci-
ety (and does not constitute an unreasonable financial burden). Reflecting
the proportionality principle, financial responsibility of the host society is
only assumed after the individual has ‘sufficiently’ integrated into the
national community. Non-nationals acquire the right to access the
national welfare system by becoming a member of the national community
of interests. Thus, national solidarity is extended to non-nationals based
on ‘acquired sameness’. Or, in the words of Somek (2007, 12, 32–6): at
the transnational level national solidarity is re-introduced ‘through the
backdoor’, which – he contends - leaves the solidarity underpinning EU
citizenship at an indeterminate state.
Giubboni recognizes this as limitations, but it could also be regarded as
inhibitors to transnational solidarity and as an affirmation of the preva-
lence of national solidarity as contended by Durkheim. Financial solidarity
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is based on the sameness of old and new members of the national benefi-
ciary group. This sameness is proven by the time spent in member state.3
This also means that reciprocity – individuals supporting another individ-
ual under the premise that the latter is ready to follow suit at a later point
in time – is only assumed among ‘same’ individuals within one national
territory. The author is, therefore, inclined to contend that Durkheim’s
understanding of mechanic solidarity in homogeneous societies and its
prevalence over organic solidarity in heterogeneous societies is still valid.
Despite the ECJ’s proactive approach, a genuinely transnational, European
solidarity has not yet developed.
Moreover, when approached from the viewpoint of the individual, soli-
darity contradicts its inherent collective dimension. This has been the case in
Viking (C-438/05) and Laval (C-341/05), in which the right to collective
European action was restricted by the exercise of market freedoms. Therein,
despite its inclination towards transnational solidarity, the ECJ did not rec-
ognize the potential of a social solidarity which originates from collective
action at European level (also Giubboni 2010, 195). This mirrors the limita-
tions social solidary rights still face vis-à-vis the economic goal of the func-
tioning of the internal market.4
Considering these limits of the judicial rights-based approach, it is
questionable whether the ECJ is the appropriate forum for advancing
solidarity.5 The ECJ’s proactivity is compensating for the problems aris-
ing from the legal diversity in national social law, but it cannot replace
the sociological ties that would have to form the premise of a solidary
social policy on EU level. The EU does not possess those ties necessary
to provide for solidary welfare services (Davies 2010, 120). And by using
their competence to reserve national social solidarity for own citizens
(see Barnard 2006, 153; Dougan 2005, 181), and engaging in constitu-
tional protectionism with regard to residency rules and shielding from
EU competence (Ferrera 2005, 163), the member states have shown
reserve with regard to the limits, or limitlessness, of European integra-
tion. It has, in fact, been asked to what extent a truly solidary, civic
society across Europe is actually possible (see Habermas 2008, 92; also
Michalski 2006; Bruter 2005).
464 I. Domurath
living. This means that, in order to show solidarity with future genera-
tions, their interest in an intact environment is to be recognized as part
of our present community of interests (see Hilson 2010, 147). Fairness
and distributive justice are the bases of this solidarity, whereas same-
ness plays a minor role.
sense of community after the Cold War since it breaks through traditional
preconceptions of nationality and citizenship. The expectations concerning
transnational solidarity that come with European citizenship have been
adjudicated in decisions involving young Europeans who sought for educa-
tion in another member state (Grzelczyk, Bidar).
The author would like to put forward the consideration of enhancing
transnational solidarity through education – a variable of solidarity that has
been largely neglected. Sustainable development law does refer to education
at times, but education remains a disregarded means to advance European
integration into a solidary dimension (exception Böckenförde 2006, 39). But
enhancing education could contribute to the formation of the enlightened
self-interest in Stjernø’s terms, as well as the creation of potent actors who
are able to take the complex decisions that are required in order to overcome
the challenges that we have encountered in the course of this research. In this
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Notes
1. See Borgmann-Prebil (2008, 328–50, 331 et subs), Somek (2007, 1–19, 19–26), Dougan (2005,
180–218, 128), and Guibboni (2007, 360–79).
2. The ECJ has confirmed the ‘fundamental status’ of EU citizenship in the EU legal order on many
occasions (Grzelczyk C-184/99, paragraph 31, Baumbast C-413/99, paragraph 83; Bidar C-209/
03, paragraph 31; Zambrano C-34/09, paragraph 41; further reference Borgmann-Prebil 2008,
328–50, 335 et subs.)
3. The academic literature has responded somewhat startled to the equalization of integration and
time spent in the host Member State. Somek (2007), 51, for example, calls this feature of Euro-
pean citizenship ‘disturbingly autistic’.
4. For criticism concerning the erosion of national protection standards in labour law: Micklitz
(2010) on Viking and Laval; concerning the danger of member states lowering their social secu-
rity standards: Barnard (2005b, 1481–3).
5. Also Giubboni (2010, 166–97, 194–5) concerning labour law; and Barnard (2010, 73–105, 105).
472 I. Domurath
6. See Council Decision 2001/792/EC, recast Council Decision 2007/779/EC, Preamble (4), and
other European disaster management mechanisms: Council Regulation 20002/2012/EC, Council
Regulation 2001/381/EC, also: Council of the European Union. (2005b).
7. Similarly, the EU does not have the competence to harmonize the different approaches to risk
and threat assessment across the member states (European Organisation for Security. 2009, 8).
This problem is rooted in the legal instruments themselves. The Solidarity Fund relates to the
immediate recovery after a disaster occurred (Olsson et al. 2009, 96–7, 159); the CPM aims at
strengthening the member states’ capacities for consequence management. Although the EU does
engage in some prevention work (see for example Directive 2007/60/EC, http://www.effis.jrc.ec.
europa), these activities remain fragmented and do not consider the broad spectrum of environ-
mental interdependencies (further reference Barnier 2006; Commission 2008a, 2009c).
8. For a deeper analysis of the elements of distributive justice, see Finnis (1980, 165–72).
9. For example, Commission v Belgium (Belgian waste), C-2/90, Preussen Elektra AG v Schleswag
AG C-379/98, Criminal Proceedings against Ditlev Bluhme (Danish Bees) C-67/97.
10. For example, Procureur de la Republiqne v. Association de defense des brûleurs d’huiles usagées
(ADBH) C-240/83, Commmission v Denmark (Danish Bottles) C-302/86.
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