Professional Documents
Culture Documents
European Law Journal, Vol. 18, No. 5, September 2012, pp. 694–710.
© 2012 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
Abstract: This contribution analyses the conflicts of justice that are becoming
increasingly visible in Europe. It argues that while European Union (EU) law can be
understood as an instrument for the incorporation of the demands of justice and the
articulation of ‘the good’ beyond the nation state, it also potentially skews the distributive
criteria and assumptions of justice that underlie the national welfare state. In light of
the absence of a transnational political system that can bound such conflicts of justice, this
article suggests that the capacity of the EU to contribute to, rather than detract from, the
attainment of justice depends on the careful articulation and institutionalisation of the
different types of transnational solidarity that exist in Europe.
I Introduction
‘Nothing is to be preferred before justice.’1 Socrates already described what modern
history has confirmed. The quest for justice—or to limit injustice—invariably lies
at the core of our evaluation of our societies and is a source of inspiration for its
continuous improvement. Given this central role and its legitimising potential, it is
remarkable that the ‘idea’ of Europe is hardly ever explicitly assessed from the
perspective of justice.2 To the extent that the question of justice is discussed within the
context of the European Union (EU), it is mostly to highlight that the EU, specifically
through EU law, limits the capacity of Member States to ‘produce’ justice.
A powerful narrative has emerged in the last few years, in academic and political
circles alike, which argues that the idea of justice that is implicit in EU law conflicts
with our understanding of justice within the national context. Such conflicts of justice
appear to arise partially from the economic constraints imposed in the name of the
internal market and monetary union, and partially from the logic of free movement,
which at times directly pits the interests of mobile Union citizens (such as students,
* PhD Fellow, London School of Economics, London, UK. Many thanks to Damian Chalmers,
Hugh Collins, Turkuler Isiksel and Mike Wilkinson for helpful comments on earlier drafts. The usual
disclaimer applies.
1
Socrates in Plato’s Dialogue The Crito, as cited in R.W. Emerson, Essays and Poems (Barnes & Noble,
2004), at 313.
2
Notable exceptions include A. Williams, The Ethos of Europe (Cambridge University Press, 2010), and
A. Somek, Engineering Equality (Oxford University Press, 2011).
September 2012 Transnational Solidarity and Conflicts of Justice
plumbers, pensioners or patients) against those of immobile citizens (that is, citizens
who do not move from their home Member State). This contribution will focus on the
latter type of conflict.3
One of the most emblematic examples of such a conflict is a series of cases that
discuss the way in which the free movement provisions affect national policies on
university access. These cases deal with Austrian and Belgian policies on university
access. Both states have opted to adopt a policy of open and free university access.
Both are, however, faced with a big neighbouring Member State (Germany and
France, respectively), which has opted for a more restrictive access policy in, for
example, medical studies. Their imposition of such numerus clausus regulations has
generated a very considerable migration of students from these Member States
towards their smaller neighbours, where, conveniently, the language of instruction is
the same. Austria indicated that it received up to five times as many foreign as home
students in certain degrees, whereas in Belgium, the percentage of foreign students in
veterinary degrees amounted to 86%.4 The Belgian and Austrian concerns about the
migrant students’ exercise of the rights under free movement focus both on the fact
that their taxpayers are forced to bear the financial burden of educating foreign
students who are likely to return to their own Member State upon completion of their
degree, and on the implicit way in which EU law makes it simply impossible for such
countries to implement their electorate’s decision to sustain a policy of free and open
university access.5 Especially in medical and veterinary degrees, after all, the available
clinical placement places are intrinsically limited given that, as the Belgian Constitu-
tional Court put it, ‘it is not easy to provide for more childbirth and live animals
to be tended to.’6 Access of foreign students, in such degrees, has led to Belgian
and Austrian students being crowded out from access to university. In its rulings,
the Court shows a distinct lack of engagement with such concerns. AG Jacobs, for
example, simply argued that ‘clearly, the adoption of less discriminatory measures
[governing access to Austrian universities] would require changes to the current
system of unrestricted public access.’7 Such a mechanical understanding of the rights
to free movement, this article will argue, simply does not engage with the assumptions
of justice that exist on the national level, and is problematic in the sense that it both
threatens the stability of the bonds of reciprocity that sustain positive welfare
entitlements and limits the capacity of citizens to structure their society in a way that
corresponds to their vision of the ‘good life.’ Ultimately, such conflicts of justice
cannot but threaten the stability of the Union, which is, after all, premised on the
perception that it participates in the generation of the preconditions for individuals to
be able to live ‘good lives.’8
3
See the contribution of Damian Chalmers in this issue for an analysis of the ways in which monetary
union constraints national democratic processes.
4
See C-147/03, Commission v Austria [2005] ECR I-5969, para. 64 and section B12.1 of the referring court’s
ruling. Cour Constitutionelle, l’Arrêt n°12/2008 du 14 février 2008, Numéros du rôle: 4034 et 4093.
5
Case C-73/08, Bressol [2010] ECR I-2735. C-147/03, Commission v Austria [2005] ECR I-5969,
Case C-65/03, Commission v Belgium [2004] ECR I-6427.
6
See section B12.1 of the referring court’s ruling. Cour Constitutionelle, l’Arrêt n°12/2008 du 14 février
2008, Numéros du rôle: 4034 et 4093.
7
Opinion of AG Jacobs in C-147/03, Commission v Austria [2005] ECR I-5969, para 53.
8
See R. Breton, ‘Identification in Transnational Political Communities’, in K. Knop, S. Ostryn,
R. Simeon and K. Dwinton (eds), Rethinking Federalism: Citizens, Markets and Governments in a
Changing World (UBC Press, 1995), at 42.
This article unpacks the terms of the conflicts of justice. It explains, first, that the
differences in the conception of justice that exists on the national and on the tran-
snational level result from their different institutional nature. While justice on the
national level is primarily expressed in terms of redistributive criteria—legitimised and
sustained by the thick political system from which it emerges—the Union’s institu-
tional limitations entail that it cannot legitimately redistribute resources. It will be
argued that EU law instead serves the demands of justice by enlarging the individual
citizen’s exercise of individual agency to include opportunities in other Member States
and by making sure that national policy choices take account of interests excluded
from the national political process (section I). This article will then locate the inter-
section between the national and transnational conceptions of justice that has the
potential to generate conflicts of justice (section II) and propose that, for absence of
a robust political system that can mediate between such different conceptions of
justice, we need to elaborate a theory of transnational solidarity that can normatively
bound and integrate them. Three different dimensions will be traced to this concept of
transnational solidarity: market solidarity, communitarian solidarity and aspirational
solidarity (section III). Read together, these three types of transnational solidarity
not only reflect the normative assumptions that underlie the integration project but
also have the capacity to bound emerging conflicts of justice, and offer a framework
through which the EU in general, and EU law specifically, can help to secure the
objectives of citizen well-being and social justice beyond the nation state.
9
See on irreducible plurality T. Nagel, ‘What is it like to be a bat?’ (1974) 83 The Philosophical Review
441–443 where he argues that we cannot possibly understand what other people value; and A. Sen,
‘Plural Utility’, (1981) 81 Proceedings of the Aristotelian Society 193–215, where he shows that even
the singular conception ‘utility’ is composed of many strands which are ordered in accordance with
individual preferences.
10
M. Halberstam, Totalitarianism and the Modern Conception of Politics (Yale University Press, 1999),
at 17.
11
A. Honneth, ‘Redistribution as Recognition: A Response to Nancy Fraser’, in N. Fraser and A. Honneth
(eds), Redistribution or Recognition: A Politico-Philosophical Exchange (Verso, 2003), at 134. The
instinctive populism of politicians ensures that new normative views are represented in the political arena.
currently lacks the public sphere16 and a system of representative democracy strong
enough to support a contractarian model of justice.17 Moreover, it does not appear to
have a demos that is homogeneous enough to command the solidarity required for the
elaboration of justice beyond the most basic of entitlements.18 Even if it is true that we
are ‘linked with each other through trade, commerce, literature, language, music, arts,
entertainment, religion, medicine, healthcare, politics, news reports, media communi-
cation,’19 the kind of general, long-term, undisputed, thick solidarity that sustains
actual, positive welfare entitlements, cannot be found or administrated in such locales.
In consequence, it seems unlikely that Europe’s claims of justice can derive from any
sort of institutionalised collective agency.20 This does not mean that the EU does not
make normative claims. It simply means that they cannot (should not) be of a directly
redistributive or openly political nature. Rather, as the following sections will argue,
EU law and its central norms of free movement focus on a different, transnational
and apolitical type of justice, which helps to overcome some of the normative limi-
tations of the development of justice within national political settings. At the same
time, this transnational idea of justice risks destabilising the assumptions of justice
that exist on the national level exactly because it is not couched within a political
context that can mediate between different interests. To better understand the terms
of the conflicts of justice that are emerging in Europe, then, it is crucial to first analyse
which precise claims of justice are implicit in EU law.
political discourse: S. Benhabib, Rights of Others (Cambridge University Press, 2004), at 106–112. See
also F. De Witte, ‘National Welfare as Transnational Justice?’ in J. Rutgers (ed.), European Contract
Law and the Welfare State (Europa Law, 2012), at 15–42.
16
H. Brunkhorst, Solidarity: From Civic Friendship to a Global Legal Community (MIT Press, 2005),
at 119
17
The German Constitutional Court has unpicked all the different ways in which EU is not suitable
as a representative democracy. See Lisbon ruling of BVerfG, 2 BvE 2/08 of 30.6.2009, para. 209–210,
212–213, 250, 268, 270, 280, 284 and 286.
18
G. Majone, Dilemmas of European Integration (Oxford University Press, 2005), at 26–27 and 189.
19
A. Sen, The Idea of Justice (Penguin, 2009), at 172–173.
20
G. Majone, Dilemmas of European Integration (Oxford University Press, 2005), at 192–207.
21
A. Sen, The Idea of Justice (Penguin, 2009), at 227.
22
A. Sen, The Idea of Justice (Penguin, 2009), at 228 for good examples.
23
A. Sen, The Idea of Justice (Penguin, 2009), at 58.
24
Such variations are important given that we can never predict how different citizens will value the same
outcome, even if they have voted for it. See on this problem of subjectivity: T. Nagel, ‘What is it like to
be a bat?’ (1974) 83 Philosophical Review 441–443.
25
Rawls collapses the two: J. Rawls, A Theory of Justice (Oxford University Press, 1971), at 415–416. See
also M. Sandel, Liberalism and the Limits of Justice (Cambridge University Press, 1998), at 163–167.
26
See M. P. Maduro, ‘Reforming the Market or The State? Art 30 and the European Constitution’, (1997)
3 European Law Journal 62; where he discusses the ‘inevitable connection between the aims of individual
freedom and the avoidance of nationalism’.
27
T. Kingreen, ‘Fundamental Freedoms’, in A. Von Bogdandy and J. Bast (eds), Principles of European
Constitutional Law (Hart, 2008), at 561.
28
S. Benhabib, Rights of Others (Cambridge University Press, 2004), at 177. Within the EU, however, the
reason for mobility seems to be no longer economic necessity but choice. See A. Favell, Eurostars and
Eurocities (Blackwell, 2008), at 84.
29
J. Weiler and N. Lockhart, ‘Taking Right’s Seriously’ Seriously: The European Court of Justice and
Its Fundamental Rights Jurisprudence’, (1995) 32 Common Market Law Review 604.
30
Voltaire already captured this centuries ago. Candide and Cacambo, after having suffered from blatant
injustice in any country they had visited, arrived in El Dorado—a place better, fairer, more beautiful
and more just than any they had visited or could possibly imagine. The realisation that they would
never have it better, however, did not prevent their desire to move on. Irrational as it may ultimately
be, a change of scenery felt necessary: ‘the desire for freedom of movement, to cut a figure amongst
their own people, and to tell their travellers’ tales, induced these fortunate beings to forsake their good
fortunes’. Voltaire, Candide, ou L’Optimisme (Penguin Classic, 2001), at 52.
merely streamlining the economic regulation of the internal market, but also contains
a strong aspirational claim. A producer of toy soldiers in Budapest is all of a sudden
allowed to market his toy soldiers freely throughout all the Member States. Equally,
a service provider from Estonia can provide services throughout Europe, and a British
patient can choose to get her hip replaced in France. This same logic has progressively
allowed economic inactive citizens almost unlimited rights to free movement. Even the
requirements of sufficient resources and sickness insurance, upon which such move-
ment was made conditional by the Union legislator, has been relegated, through the
application of the principle of proportionality, to simple formal requirements that
citizens can easily meet (and even circumvent).31 Most Union citizens, in other words,
now have the chance to move to a Member State where their perception of the ‘good
life’ is more fully met. A Belgian student, for example, can no longer exercise his/her
right to university education within Belgian universities alone but can move to
London or Berlin to pursue his/her education. After all, why limit a student’s choices
of universities to the level, language, nature or intellectual predisposition of the
universities on the Belgian territory, when the Union’s unrivalled diversity allows
a prospective student to make so many other informed choices, better tailored to
meet his aspirations?
31
See F. De Witte, ‘The Ends of EU Citizenship and the Means of Discrimination’, (2011) 18 Maastricht
Journal of European and Comparative Law 86–107.
32
At the conceptual basis of each theory of justice lies a demand of impartiality on its elaboration. Rawls’
‘veil of ignorance’, Sen’s focus on public deliberation and rational scrutiny, or Smith’s ‘impartial
spectator’ are all attempts to ensure that decisions be free from biases and prejudices, equally incorporate
everyone’s views, and be based on objective reasoning.
33
This relates to the liberal-democratic principle that demands congruence between subjects and objects
of rule. See C. Joppke, ‘Transformation of Citizenship: Status, Rights, Identity’, (2007) 11 Citizenship
Studies, 40.
34
See M. Kumm, ‘Constitutionalising Subsidiarity in Integrated Markets: The Case of Tobacco Regula-
tion in the European Union’, (2006) 12 European Law Journal, 513–514, even if his argument dealt with
the scope of (what is now) Art 114 TFEU. See also, for similar observations, F. Böhm, ‘Rule of Law in
a Market Economy’, in A. Peacock and H. Willgenodt (eds), Germany’s Social Market Economy: Origins
and Evolution (MacMillan, 1989), at 58.
35
Art 20 (2)(b) TFEU.
36
Assuming an equal proportion of minors among Luxembourgers and nationals of other Member States.
See http://www.migrationinformation.org/feature/display.cfm?id=587.
37
See also, R. Baubock, ‘Why European Citizenship?’ (2007) 8 Theoretical Inquiries into Law 471–480.
38
L. Azoulai, ‘The Court of Justice and the Social Market Economy: The Emergence of an Ideal and the
Conditions for its Realisation’, (2008) 45 Common Market Law Review 1342–1343.
TFEU, and have been read into the ‘five’ freedoms. The choice to move to another
Member State is thus accompanied by a guarantee that the migrant can access those
social entitlements that the citizens of the host state consider necessary for themselves
to live a ‘good life,’ and which serve to alleviate their needs and accommodate their
desires. In other words, by way of the principle of non-discrimination EU law extends
national distributive criteria to include migrants.
39
A. Saydé, ‘One Law, Two Competitions: An Enquiry into the Contradictions of Free Movement Law’,
30 (2011) Cambridge Yearbook of European Legal Studies 365–414.
40
M. P. Maduro, ‘European Constitutionalism and Three Models of Social Europe’, in M. Hesselink
(ed.), The Politics of a European Civil Code (Kluwer, 2006), at 130. Fligstein shows that those exercis-
ing their rights under free movement are mostly professional, white collar, middle-class citizens. See
N. Fligstein, Euro-Clash: The EU, European Identity and the Future of Europe (Oxford University Press,
2010), at 170–186.
41
F. Scharpf, ‘The Asymmetry of European Integration, or: why the EU cannot be a “social market
economy” ’, (2010) 8 Socioeconomic Review 218–220.
42
S. Deakin, ‘Reflexive Harmonisation and European Company Law’, (2009) 15 European Law Journal
224.
43
S. Deakin, ‘Regulatory Competition after Laval’, (2008) 10 Cambridge Yearbook of European Legal
Studies 581–609.
44
M. P. Maduro, We, the Court (Hart, 1998), at 141–143.
45
R. Bellamy, ‘The Liberty of the Post-Moderns? Market and Civic Freedom within the EU’, LEQS Paper
1/2009, 20.
46
If citizens evaluate claims by outsiders as ‘unreasonable’, they may be inclined to reduce their own
(no longer reciprocated) commitments to communal sharing. See A. Falk and U. Fischbacher, ‘A Theory
of Reciprocty’, (2001) CESifo WP no. 457, 3–4 for a theoretical explanation, and 5–19 for economic
analysis.
47
R. Bellamy, ‘The Liberty of the Post-Moderns? Market and Civic Freedom within the EU’, LEQS Paper
1/2009, 14, with reference to C. Pattie, P. Seyd and P. Whitely, Citizenship in Britain: Values, Partici-
pation and Democracy (Cambridge: CUP, 2004).
48
A. Sen, The Idea of Justice (Penguin, 2009), at 65, 296.
us from doing so, we are evidently not able to do so.49 Any conception of freedom or
justice, it would appear, requires us to incorporate our respective ability to enjoy those
things in life that we value. Those values can be realised only ‘if [individuals] also have
access to and enjoy a bundle of rights and entitlements which are necessary for them
to lead lives of human dignity and autonomy.’50 In other words, positive welfare
entitlements are important because they enable us to live a type of life that freedom
alone would not allow for. Given that the Union, however, can neither (at the
moment) generate the solidarity, nor administer such social entitlements, and that
its justice claims are parasitic on the presence of positive welfare entitlements on the
national level, the sustainability of those entitlements becomes a matter for EU law.
This is all the more apparent if we consider that, currently, all Member States do
have elaborate practises of social sharing. European citizens, in other words, think
that social entitlements are crucial for a ‘good life.’ Even if redistribution may not be
inherent in the Union’s perception of justice, respecting its articulations on the
national level clearly is. Destabilising such practices in the name of free movement is
therefore doubly unjust—as it limits the ability of citizens to live their chosen lives, as
well as their capacity of political self-determination.51 It is therefore argued that the
Union must stabilise access to positive welfare entitlements for mobile and immobile
citizens on the national level, not only for the sake of justice but also for its own
legitimacy. Only by doing so, and by extending rights to welfare to closely defined
categories of migrant Union citizens, can destructive conflicts of justice be bound
before they manifest themselves.
49
Example borrowed from Raymond Plant’ plenary address at the IGLRC, King’s College London,
7th April 2011.
50
S. Benhabib, Rights of Others (Cambridge University Press, 2004), at 111.
51
See also J. Habermas, The Theory of Communicative Action II (Polity Press, 1987), at 178.
the individual plays in them. Europe, first, can be approached as a market and its
people as economic agents. Second, Europe is a political community, and its people
are citizens of that polity. Third, Europe is an aspirational structure, and its people
are the explicit object of such aspirations. As the next sections will highlight, each of
these three dimensions attaches different rights and obligations of solidarity to the
exercise of free movement.
A Market Solidarity
The first solidarity surfaces when we cast the Union as a market. It can best be
typified as market solidarity, which, like Durkheim’s theory of organic solidarity,
emerges almost spontaneously as the result of the functional division of labour on the
European market.52 The mutually advantageous nature of such division, and the
structural interdependencies that it generates, suggests that the interaction between
market actors is not only premised on economic strength or comparative advantage
but also premised on rights and obligations of equity that serve to stabilise their
relationship. Market solidarity entails, in very simple terms, that market actors derive
rights and obligations of solidarity simply by virtue of their position and participation
on that market. A transnational market, moreover, presupposes a different form of
market solidarity than a national market. Slowly but surely, then, the legal norms and
political mechanisms that emerge on the European level have started to incorporate
ideas of transnational market solidarity.53
If we focus on the question framed earlier, namely to what extent mobile citizens
should have access to redistributive arrangements in the host state, market solidarity
clarifies that workers derive a degree of solidarity and social rights simply and
exclusively by virtue of their engagement with a certain labour market, rather than by
virtue of their nationality, citizenship or residence. Access to welfare benefits in the
state of employment, on this view, functions as a quid pro quo for the economic and
functional engagement of migrant workers with that society. It is this notion of
structural interdependency and economic reciprocity between the migrant worker and
the host state that underlies the unconditional right to equal treatment in accessing
welfare entitlements for such workers and their family members. Regulation 1612/68
and Directive 2004/38 indeed explicitly emphasise this demand of equal treatment,54
while the Court has strengthened such rights by extending them to cover all social
benefits in the areas of education, healthcare, social security and social assistance.55
These kinds of claims under market solidarity remain, however, predicated on the
migrant’s continuous economic engagement in the host state,56 even if it cannot
logically be made conditional upon the migrant worker possessing a minimum level of
52
E. Durkheim, The Division of Labour in Society (Palgrave, 1984), at 68–86.
53
Consider CAP funds, structural funds, or the recent bail-outs, which all result from the structural
interdependencies that an internal market generates.
54
Art 7 (2), Reg 1612/68 and Art 24, Dir 2004/38.
55
See Art 7 (2), Reg 1612/68, which emphasises that workers are to have the same ‘social benefits’
as nationals of the host state; and Art 12 of that same Regulation that deals specifically with education.
See also Reg 883/2004 on social security, and Art 4 and 11 (3) on healthcare specifically. For an overview
of the Court’s case-law in all three areas: A.P. Van der Mei, Free Movement of Persons within the
European Community (Hart, 2003).
56
See explicitly Case 275/96, Kuusijarvi [1998] ECR I-3419, para. 73.
B Communitarian Solidarity
Europe, as we know, is more than a market alone. It is also a political community
and as such engenders claims of communitarian solidarity. This type of solidarity
describes what each Member State owes each Union citizen simply because of this
status. It seeks to capture the normative dimension of the European polity and the
idea of Union citizenship.59 Which social rights, however, are attached to the status of
Union citizenship alone? For reasons explained earlier, Union citizenship cannot
legitimise free and open access for all citizens to all sharing arrangements in different
Member States. That would transcend the boundaries of reciprocity that sustain such
redistributive arrangements.
Instead, the vast case-law of the Court that has developed since Martinez Sala
suggests that communitarian solidarity demands something procedural rather than
substantive.60 It essentially posits that because we are all equal as Europeans, we must
be treated equally in access to welfare structures. Equality, here, does not mean full
access for every Union citizen. It means using the same criteria of reciprocity in respect
of national and non-national residents. Communitarian solidarity, in other words,
strips Member States from the capacity to differentiate in welfare access on the basis of
criteria of nationality or residence alone; but instead requires that eligibility criteria are
drafted in such a way as to reflect the commitments of reciprocity that sustain the
welfare good to which access is sought. What those commitments exactly are, of course,
depend on the nature and function of the welfare good and will thus differ for different
welfare goods. Logically, then, what communitarian solidarity demands is also
different depending on the nature and function of a particular welfare good.
For example, social entitlements such as emergency healthcare, compulsory educa-
tion, housing or food, which are ‘both foundational and fundamental’61 for the
capacity of any person to live their life with a minimum of human dignity and
autonomy, must be extended to all residents, regardless of nationality or period of
residence. Such entitlements serve to liberate the individual, irrespective of personal
normative values or objectives, from the chains of mere survival, and are not defined
57
Case 53/81, Levin [1982] ECR 1035, para. 17, and Case C-413/01, Ninni-Orasche [2003] ECR I-1027,
para. 26–29.
58
See explicitly Case C-337/97, Meeusen [1999] ECR I-3289.
59
See in depth F. De Witte, ‘The Ends of EU Citizenship and the Means of Discrimination’, (2011) 18
Maastricht Journal of European and Comparative Law 86–107.
60
Case C-85/96, Martinez Sala [1998] ECR I-261. For the most recent restatement of the case-law, see Case
C-503/09, Stewart [2011] not yet reported, para. 78–90.
61
See M. Walker and E. Underhalter, ‘The Capability Approach’, in M. Walker and E. Underhalter (eds),
Amartya Sen’s Capability Approach and Social Justice in Education (Palgrave, 2007), at 8.
62
See M. Halberstam, Totalitarianism and the Modern Conception of Politics (YUP, 1999), at 16.
63
See Art 34 (3), 35 and 14 of CFR. See on education: C-310/08, Ibrahim [2010] ECR I-1065, para. 37, 39
and 45, and more explicitly Case C-480/08, Teixeira [2010] ECR I-1107, para. 50; on healthcare: Art 4 (1),
Dir 2011/24, highlighting the principles of universality, access to good quality care, equity and solidarity
which underlie the provision of healthcare. See on subsistence allowance Art 70 (2), Reg 883/2004.
64
National ties of solidarity can be deconstructed as ‘solidarity as identification’ and ‘solidarity as tran-
scendence’. See A. Somek, ‘Solidarity Decomposed: Being and Time in European Citizenship’, (2007) 32
European Law Review 807. For similar arguments, consider S. Stjernø, Solidarity in Europe (Cambridge
University Press, 2005) at 201; E. Durkheim, The Division of Labour in Society (Palgrave, 1984), at 150;
M. Ferrera, The Boundaries of Welfare (Oxford University Press, 2005), at 46 or Dworkin’s hypothetical
insurance market. See R. Dworkin, ‘What is Equality? (Part 2)’, (1981) 10 Philosophy and Public Affairs,
283–345.
65
Case C-158/07, Förster [2008] ECR I-8507, para. 54; and Art 24 (2), Dir 2004/38.
66
A. Follesdal, ‘Union Citizenship: Unpacking the Beast of Burden’, (2001) 20 Law and Philosophy
326; E. Thomas, ‘Who Belongs?: Competing Conceptions of Political Membership’, (2002) 5 European
Journal of Social Theory 332.
C Aspirational Solidarity
Every organisation—be it a bookclub or a transnational integration project—
structures the rights and obligations of its members in accordance with its communal
objectives. Within the context of the EU, these objectives, whether peace and pros-
perity or individual freedom, have always been pursued by way of the rights to free
movement. Aspirational solidarity asks which obligations of solidarity are implicit in
this objective. In other words, which normative obligations follow from the Member
States’ acceptance of the capacity of free movement as generating more opportunities
for their own citizens (and by proxy, each other’s citizens) to live a ‘good life’? This
last type of transnational solidarity is easily the most divisive and most difficult
to define, as it both captures the unique aspirational essence of Europe that has no
equivalent within the national context, and relates to the grey area in which citizens
making use of the opportunities provided by free movement threaten to undermine
the availability of welfare entitlements for ‘immobile’ citizens—such as in the example
of the Austrian and Belgian universities.
It is argued that the obligation under aspirational solidarity primarily entails that
Member States may not limit the capacity of citizens to make use of the free move-
ment provisions, either by restricting movement or by penalising such movement.67
It remains, however, a conditional obligation. As the previous discussion has high-
lighted, the commitment to political self-determination and justice requires that aspi-
rational solidarity be limited where it recalibrates domestic distributive choices, as
such recalibration might destabilise access for immobile citizens to welfare entitle-
ments.68 In other words, aspirational solidarity is conditional upon the capacity of
Member States to offer their ‘own’ citizens access to the social entitlements that those
citizens have decided they want.
This conditional obligation under aspirational solidarity applies to both the
migrant’s home state and the host state to which he moves. The home state may not
limit access to welfare entitlements simply on the basis that the citizen makes use of
his right to free movement. This means, simply put, that aspirational solidarity in
principle allows migrants to export social entitlements from their home state.69 As
such, aspirational solidarity serves as a mirror to the obligations under communitar-
ian solidarity: just as the latter allows migrants to access the welfare entitlements for
which they meet the criteria of reciprocity in their host state, the former allows such
citizens to retain access to the welfare entitlements for with they meet the criteria of
reciprocity in their home state, regardless of their lack of residence. The Court has, for
example, extended financial entitlements such as student grants and civilian war
benefits to cover no longer resident migrants.70 Such benefits are hardly ever norma-
tively contingent on the citizens’ physical presence on the territory of that state71 (but
rather on the past commitments to that polity), and their extra-territorial enjoyment
67
See, eg Case C-244/98, D’Hoop [2002] ECR I-6191; and Case C-406/04, De Cuyper [2006] ECR I-6947.
68
See also J. Habermas, The Theory of Communicative Action II (Polity Press, 1987), at 178.
69
See Joined Cases C-11/06 and 12/06, Morgan and Bucher [2007] ECR I-9161.
70
See Joined Cases C-11/06 and 12/06, Morgan and Bucher [2007] ECR I-9161; Case C-192/05, Tas-Hagen
[2006] ECR I-10451, Case C-499/06, Nerkowska [2008] ECR I-3993.
71
Possible exceptions are unemployment benefit, which is contingent upon the work seeker being available
to the employment services in a Member State (see Art 63, Reg 883/2004), and minimum subsistence
allowance, the responsibility for which has been allocated to the citizens’ state of residence under
communitarian solidarity.
72
See Case C-76/05, Schwarz [2007] ECR I-6849, para. 78–80 (education); Art 7, Reg 883/2004 (social
security); and See Art 7 and recital 38, Dir 2011/24 (healthcare).
73
See Case C-388/09, Da Silva Martins not yet reported, para. 74.
74
Case C-73/08, Bressol [2010] ECR I-2735.
75
In 2005, only 250 places were available in Belgium (as a result of a finite amount of practical training
places. Of the 795 applicants, only 192 possessed a secondary school degree from the territory of
Wallonia, while only 34 of the 250 successful candidates did so, partially due to a preparatory course that
French students undertake but Belgian students do not. See S. Garben, ‘The Belgian/Austrian Education
Saga’ Harvard European Law Working Paper 2008/1, 11. Section B12.1 of the referring court’s ruling.
Cour Constitutionelle, l’Arrêt n°12/2008 du 14 février 2008, Numéros du rôle: 4034 et 4093.
76
See article 4 (3) of Directive 2011/24.
77
Which is not (as the BverfG argues) exclusively about voting in the ballot—it is equally about voting
‘with your feet’ by exiting a polity.