Transnational Solidarity and the Mediation of Conflicts of Justice in Europe

Transnational Solidarity and the Mediation of Conflicts of Justice in Europe

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).

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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.

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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.

II Social Justice in Europe: The Redistribution of Aspirations

This section both traces how ‘claims’ of justice emerge on the national level and highlights how they differ from those on the European level. In the modern political context, the ‘idea’ of social justice can be roughly equated to the objective of allowing citizens to live ‘good lives.’ This follows from the instrumental character of modern societies, which no longer serve objectives that are external to the needs and desires of the citizens. At the same time, this centrality of the citizens’ perception of ‘the good’ in the construction of society presupposes that social structures—whether the nation state or the EU—must find a way to accommodate the fact that different people have different outlooks on life, different needs and different desires.9

The nation state, helped by the emergence of political systems, has become very capable of ‘doing’ justice. The ‘thick’ political systems internalise the citizens’ con- ceptions of ‘the good,’ their needs and their aspirations within the construction of society;10 serve to mediate between the different needs and aspirations that different citizens may have by simultaneously including everyone’s claims, and thereby legiti- mise the eventual redistributive outcome.11 Assuming that members of a certain

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.

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political community participate in drafting such an internal criterion of distributive justice, however, implies certain evident limitations. Both ex-ante (voting) and ex-post participation (‘access’ to the policy outcomes) is bounded by membership of the political community in which it takes place. Traditionally, membership has not been decided by mere presence on the territory of the state but rather by concepts such as nationality or citizenship, which presuppose ancestral lineage or the symbolic identi- fication with a certain political community.12 This reflexive aspect of the development of justice, through which a demos continuously reiterates what a Member State is and means, explains both the territorially bounded nature of the welfare states that have emerged in Europe as well as the vast differences between them.

At the same time, that same spatial understanding of justice is often presented as a prerequisite for its attainment, in particular in sustaining the redistributive commit- ment that underlies most social goods. Given that the (high) costs of social security, health care or university13 are not necessarily shouldered by those who most profit from their existence, they presuppose the ‘willingness’ of citizens to share with ‘others’ within the same ‘political community.’ Without the complex dynamic between ances- tral belonging, collective political identity and culturally embedded reciprocity that underlies national membership, it is difficult to harness such willingness to redistribute scarce resources.14 Even if we may not necessarily feel the misery and happiness of people who are like us more acutely, the institutional structure within which we are able to act upon such sentiments makes the case for its alleviation or facilitation much stronger and thicker within national political communities. In other words, while the national political process guarantees the legitimacy of redistributive justice, the closure provided by membership generates the solidarity and provides for the insti- tutional framework necessary for its sustainability. Liberal democracies are—on the whole—very good at generating justice within polities, by incorporating every citizen’s needs and desires in its determination, ensuring adherence to its outcome, alleviating communal suffering and fostering communal ambitions. This logic of justice is prem- ised, however, on the presumption that all needs and desires of each individual can be articulated within the spatial context of the nation state. The complex inter- dependence between democracy and justice, upon which it is reliant, not only imposes constraints of membership and access to social entitlements for ‘outsiders,’ as dis- cussed above, but also on personal movement for ‘insiders’ who wish to move outside the boundaries of a polity.

The EU is institutionally incapable of reproducing this type of redistributive jus- tice.15 Even if we overlook the obvious lack of tax-and-spend competences, the Union

As argued by Esping-Andersen, ‘democracy is an institution that cannot ignore majoritarian demands.’ See G. Esping-Andersen, The Three Worlds of Welfare Capitalism (Cambridge University Press, 1990), at 15.

12 S. Benhabib, Rights of Others (Cambridge University Press, 2004), at 1 and 175–177 and E. Thomas, ‘Who Belongs?: Competing Conceptions of Political Membership’, (2002) 5 European Journal of Social Theory 329–333.

13 In 2009, a staggering 66.5% of UK’s £1,2 trillion went to welfare (pensions, healthcare and education). See Prospect (April 2010), p. 42. On healthcare alone, for example, the EU-27 collectively spend €967 billion/year. See Impact Assessment for the Directive on Cross-border Healthcare, SEC (2008) 2163, 9.

14 See M. Ferrera, The Boundaries of Welfare (Oxford University Press, 2005), at 46 and D. Millar, On Nationality (Oxford University Press, 1997), at 22–27 and 184–185.

15 See Benhabib, who articulates the epistemic and heuristic objections against a supranational conception of justice, which essentially boil down to the absence of a sufficiently democratic and representative

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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.

A Enlarging Individual Choice and Self-Determination

The first way in which EU law serves the demands of justice lies in its capacity to extend individual choices beyond the confines of political boundaries. As Amartya Sen’s work on the concept of justice suggest, living a ‘good life’ is not only about access to positive welfare entitlements but also about the possibility of making valued choices in life: ‘in assessing our lives, we have reason to be interested not only in the kind of lives we manage to lead but also in the freedom that we actually have to choose between different styles and ways of living.’21 Sen conceptualises this distinc- tion between the justice function of the entitlements that allow us to be free (which he calls, somewhat confusingly, freedom as opportunity), and the inherent justice function that the process of independent and unrestrained choice entails (this he calls freedom as process).22 This insight from social choice theory, which focuses on ranking available realisations in terms of their relevance for the individual’s (‘good’) life, shows why EU law serves an important justice function. While national democratic

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.

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practices incorporate the irreducible plurality of conceptions of ‘the good’ by ex-ante participation in decision-making,23 they do not allow for ex-post variations to cater for the actual choice and opportunity of people to live ‘good lives.’24 Bluntly put, the development of justice within the national context has reduced individual self- determination to political self-determination.25

EU law, and in particular its rules on free movement, serves to overcome this limitation, and expands the personal autonomy to decide (to act) on what is ‘good,’ ‘just’ or ‘fair’ in both spatial and normative terms. While the free movement rules were originally conceived as an instrument to take the sting out of nationalism26 and to increase economic efficiency, they increasingly serve as an instrument to generate citizen well-being. Rights to free movement provide a ‘trampoline’ for individuals to vault over the limitations imposed by the national decision-making process.27 As such, they liberate the individual from his political community and encourage him to choose to pursue his own interpretation of a ‘good life,’ wherever that may lie. In this view, as highlighted by Benhabib, ‘crossing borders and seeking entry into different polities [becomes] (. . .) an expression of human freedom and the search for human betterment in a world which we have to share with our fellow human beings.’28 This more aspirational conception of EU law posits that the irreducible plurality of conceptions of the ‘good life’ that is intrinsic to any society can better be met in a justice scheme that extends beyond the single political community. As Weiler and Lockhart have put it: ‘[p]art of the Community ethos (.) lies in the important civilising effect [which] (.) is achieved through the intended inability of Member States, practical and legal, to screen off different social choices, legally sanctioned, in other Member States.’29 The reason for exercising individual movement is irrelevant—exactly because it is meant to reflect the irreducible plurality of conceptions of ‘the good.’30

This aspirational logic of individual agency underlies, of course, the construction of the European economic constitution. The fact that a toy lawfully produced in Hungary is to be allowed on the Finnish market can be (and has been) perceived as

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.

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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?

B Amplification of National Policy Choices to Protect Equal Citizenship

The second way in which EU law enhances ‘justice’ within Europe is by amplifying the outcome of the national decision-making process so that it incorporates the interests of those excluded from that very process. Bluntly put, the right to participate in national elections is reserved for ‘members’ of a polity (not its residents). This entails that the needs and desires of migrant citizens are excluded from the very process that is meant to guarantee equal citizenship.32 The justification for the Union to intervene in how norms of justice are implemented on the national level thus lies in the need to re-establish the essential procedural notion that the development of justice norms be guided by objective criteria free from parochial bias.33 Kumm helps to explain: ‘on a high level of abstraction it is possible to state a relatively unconten- tious criterion: The structure, composition, and practices of political institutions must reflect a commitment to free and equal citizenship. It is clear that a process which entrenches structures that tend to privilege a particular class of actors in each juris- diction does not fulfil this requirement. [. . .] The structural bias provides a reason (. . .) to consider intervention.’34 The second way in which EU law promotes justice, in other words, is by including interests that would be normally excluded by the political process.

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

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The most evident solution to the problem of ‘exclusionary neglect’ is simply to extend national electoral rights to resident ‘outsiders.’ That way, impartiality would be restored within each Member State, allowing citizens to move, vote and participate in the outcomes wherever they wish. While the EU indeed extends electoral rights to migrant citizens for municipal and European elections,35 it does not extend rights to vote in nation-wide, general elections. The latter, however, are indisputably the most crucial when assessed from the perspective of the incorporation of the individuals’ needs and desires within the way society is structured, even in federal states. Opening political participation to all residents, regardless of their connection to the polis, however, destabilises the basic assumption that collective self-determination is a not just a tool for the functional construction of society but also a tool for the elaboration and constant normative reiteration of what the nation state ‘means’ to its citizens. To put it very bluntly, extending voting rights to migrant Union citizens in Luxembourg, where they account for 33.5% of the electorate,36 may or may not have a large impact on decisions concerning taxation, migration or the use of nuclear energy. What is more problematic, however, is how it affects answers to the question whether the Grand-Duc should remain the head of state, or whether Luxembourg should form a new republic with Wallonia and parts of Germany. Polities, after all, not only facilitate but also contain normative claims. Allowing ‘non-members’ to participate in answering such questions pierces through this status quo, which is, as we saw before, particularly useful in solidifying ties of solidarity.37

Instead of focusing on participatory rights, the Union has brought in equal citizenship through the back door: migrant citizens are not equally entitled to vote for certain policy choices, but they are equally entitled to their outcome, for example, in terms of social entitlements. This type of ‘virtual’ representation is meant to ensure that the national political discourse incorporate the needs and desires of such citizens. It operates on the legal fiction that a migrant has moved to the host state because his perception of the ‘good life’ lies there, implying that the outcome of the political process in the host state was to his liking. Extending this outcome, in other words, would go some way towards both incorporating the needs and desires of outsiders, and teasing out national parochial biases in the content of (social) policies, as it forces Member States to take account of the individuals beyond their closed circle of ‘membership’ who will be eligible for the same rights and entitlements as members.38

The way in which the outcomes of national political processes are extended to migrant citizens is by attaching a legally justiciable right to non-discrimination to the exercise of the free movement rights. These rights to non-discrimination on the basis of nationality are laid down in Regulation 1612/68, Directive 2004/38, Article 18

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.

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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.

III Unpacking the Conflicts of Justice

The way in which EU law seeks to extrapolate ideas of justice to the transnational level—by attaching strong normative consequences to the individual exercise of free movement—has created a very divisive notion of justice. Tying access to social ben- efits in a host Member State to the act of an individual is divisive for a very simple reason: it is not couched in communal decision-making that can legitimise its effects. The lack of a sufficiently thick political system on the European level means that it recalibrates the locus of decision-making power away from political (collective) control and towards those individuals who actually make use of the rights to free movement (even if they do not necessarily physically move!).39 In doing so, they privilege a particular class of actors. Several studies have shown that the actual exercise of free movement rights contains significant distortions and asymmetries, which are both the result of the use of EU law by repeat players and private litigants,40

and the way in which rights to movement operate.41

Given that national policies automatically incorporate such asymmetries (as a result of the obligations of non-discrimination), it structurally favours (in the most general terms) the much more mobile capital and the richer citizens over immobile labour and poorer citizens by making policy choices that go against the interests of such mobile actors unavailable. This process has been described in company law,42 labour law43

and regulation of the marketing of goods44—where policy outcomes are structurally biased towards the interests of global (and mobile) capital. In those fields, collective choices are restricted by the need to respect individual agency of those who actually move. Such partial de-politicisation is problematic as such, given that collective agency was exactly meant to tame such (often the very same) particularistic interests, but more fundamentally because it shows that obligation of non-discrimination is not

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.

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normatively neutral and may dislocate normative and redistributive commitments on the national level.45

Such dislocation occurs as a result of the lack of sensitivity of EU law for the structures of reciprocity that underlie welfare entitlements on the national level. Simply extending, say, a right to unemployment benefit to all unemployed Union citizens who reside to Sweden may be seen as problematic simply because such individuals were not part of the ‘contract’ between Swedish citizens. A much more convincing way of conceptualising the problem is to look at how the movement of individuals skews national redistributive choices. A mass migration of unemployed Europeans to Sweden may lead to the Swedish electorate deciding to no longer morally and financially support unemployment benefits, if it is perceived as extending solidarity and reciprocity to those who do not ‘deserve it.’46 As Bellamy put it: ‘whether justified or not, citizens have demanded governments pursue politics that guard against putative welfare “scroungers” and have been sensitive to “economic” immigration if that is felt to detract from the employment opportunities available to existing citizens or to place additional burdens on social services such as housing, hospitals, schools without any compensating gain in tax revenue towards their maintenance and improvement.’47

Where bonds of reciprocity are stretched to include citizens who are perceived not to ‘deserve’ access, and the communal willingness to fund social structures decreases, it is, crucially, not only migrant Union citizen that loses out on social benefits but also the immobile citizen who has remained within his own state. This highlights the origin of the conflicts of justice that have emerged in Europe: the mechanical application of the free movement provisions, which takes no account of the commitments of reciprocity that underlie positive welfare entitlements, can lead to national electorates levelling down their redistributive practices. The real conflict of justice, then, is that the interests of mobile Union citizens are parasitic on the redistributive commitments undertaken by citizens within the national context.

Unless we consider transnational cooperation as an antidote against redistributive arrangements on the national level, as Hayekian scholars tend to do, there is a strong normative argument to support the view that EU law should prevent this effect, and be sensitive about its impact on national distributive practices that sustain positive welfare entitlements. As Sen has put it: ‘[w]hy should we regard hunger, starvation and medical neglect to be invariably less important than the violation of any kind of personal liberty?’48 If we take the capacity of individuals to live a ‘good life’ as central to our conceptions of justice, it seems that we must be primarily concerned with what we are actually able to do, rather than what we can potentially do. Even though we are all free to jump from London to New York, in the sense that no one is preventing

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.

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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.

IV Mediating the Conflict of Justice: The Emergence of Transnational Solidarities

The obvious next question is how to mediate in such conflicts of justice, and norma- tively integrate the different conceptions of justice that exist on the national and transnational level. How to ensure that the Union’s conception of justice indeed contributes to, rather than detracts from, the capacity of all Union citizens to live ‘good lives’? For lack of a supranational political system strong enough to serve that function, it is argued that it may be valuable to look at how legal instruments can incorporate ideas of transnational solidarity. The institutionalisation of solidarity has historically served the function of placating social conflicts and redistributing resources and aspirations in accordance with the normative assumptions that are implicit in a polity. In a transnational context, this requires the teasing out of the different forms of association that have emerged horizontally between individual Union citizens and vertically between such citizens and the different Member States with which they share economic, social and cultural affinities. The institutionalisation of transnational solidarity placates the emerging conflicts of justice by rationalising both the reasons for which migrants ought to be able to access welfare entitlements in the host state, as well as the limits to such demand of equal treatment.

Three different types or ideas of transnational solidarity can be traced in the EU. They are predicated on the different dimensions of Europe and the different roles that

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.

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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.

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resources57 or residing in the state of employment.58 The first idea of transnational solidarity that underlies EU law, then, is based on the interdependencies that a transnational market generates and emphasises that migrant workers must be incorporated within the sharing practices in their state of employment. Market solidarity both rationalises why economically active migrants ought to have access to such sharing practices and, at the same time, emphasises that access must not be extended to economically inactive migrants. In doing so, it prevents the emergence of conflicts of justice by insulating the reciprocal commitments that sustain positive welfare entitlements on the national level.

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.

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in terms of cultural, financial or social reciprocity and membership. Rather, they attach to the status of the resident as a human being, and their provision therefore constitutes a minimum social obligation on the state’s behalf covering all citizens.62

Both the Union legislator and the Court have indeed recognised the right to full equal treatment for all Union citizens in relation to compulsory education, emergency healthcare and minimum subsistence allowance.63

In respect of other social goods, such as student grants, unemployment benefits or pensions, it is necessary to first deconstruct the demands of reciprocity that are implicit in their nature and function. However, teasing out why a national student deserves student grants, or on which basis a young single mother deserves financial benefits, is very difficult—given the complex mix of rational choice and parochial sentiment that underlies, and sustains, concepts of political solidarity and territorial reciprocity.64

Instead of dissembling such concepts, both the Union legislator and (to some extent) the Court increasingly opt for a temporal proxy of communitarian solidarity.65 After five years of residence in the host state, migrant citizens, regardless of economic activity, derive a right under communitarian solidarity to access all welfare benefits in that state. While this proxy is a poor substitute for an assessment of whether or not a migrant meets the conditions of reciprocity that underlie the different welfare goods, it can be explained by the Member States’ desire for legal certainty and administrative efficiency, and can be seen as reflecting the migrant’s general commitment to the political, social and moral values that exist within that polity. The migrants’ continuous submission to the values that command authority, inform behaviour and structure social interactions within the host state’s political community seems to warrant, and legitimise, their general inclusion in reciprocal sharing arrangements of that state.66

The second idea of transnational solidarity that underlies EU law, then, tells us that while our common status as Union citizen may not be strong enough to warrant full and unconditional equal treatment to all social benefits for economically inactive migrants, it does require the equal incorporation of such migrants within the struc- tures of reciprocity that underlie those benefits. Communitarian solidarity, thus, not only serves to rationalise when and why economically inactive migrants should have access to the sharing practices in the host state, but, by directly connecting eligibility to welfare entitlements to the commitments of reciprocity that sustain them, also serves to prevent conflicts of justice.

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.

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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.

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cannot—as a consequence—recalibrate domestic redistributive balances.72 In Da Silva Martins, it recently even went as far as to argue that EU law, as a general principle, allows for the export of benefits ‘especially where those advantages repre- sent the counterpart of contributions which [citizens] have paid.’73 Aspirational solidarity, in other words, obliges Member States to allow its citizens to seek out a better life throughout the Union with retention of the social benefits that they have accrued.

In respect of the host state, aspirational solidarity requires something different. Access to financial benefits is, in general, precluded by the need to insulate the stability of the reciprocal commitments that underlie them. As the section on com- munitarian solidarity has highlighted, economically inactive migrants can only access such entitlements from the moment that they can reproduce such commitments. Aspirational solidarity, however, does allow migrant citizens to make use of the host state’s non-divisible and non-rival public goods such as parks, police services, univer- sities or hospitals. Because of their nature, access for ‘outsiders’ to such goods generally does not deprive an ‘insider’ from access, while access is normally financially inconsequential—as most costs of non-divisible public goods are structural. In other words, the access of migrant citizens does not skew national distributive or normative choices. This may be different where, as in the example of university education discussed in the introduction of this article, such communal structures have finite infrastructural capacities. In such an event, after all, access to welfare entitlements for immobile citizens may be restricted by virtue of movement by mobile citizens.

While the Court (almost intuitively) appreciates that the need to protect communal structures from being overburdened may trump the right to free movement, it does not always appreciate that this can occur not only where the electorate is no longer willing to sustain a certain entitlement due to the financial burden but also when access by migrants practically limits access for an immobile citizen. Also in the latter situation, EU law must intervene to correct the imbalances intrinsic in the exercise of free movement. In Bressol, which dealt with a Belgian measure seeking to limit the influx of French students in certain degrees,74 for example, the Court refused to appreciate the problem that a Member State faced with a large influx of foreign students could no longer physically—for certain university courses where the amount of available places is finite, such as medical or veterinary degrees—sustain the promise made to ‘insiders’ that it would ensure that everyone who aspired to become a doctor, could in fact have a go.75 Such systemic infrastructural limitations must be taken into account when assessing the limits to aspirational solidarity. Within the context of healthcare, for example, this limit is more explicitly articulated. Article 4 (3) of the recently adopted Patients’ Rights Directive stipulates that free movement of patients may only be limited

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.

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where necessary in light of ‘planning requirements relating to the aim of ensuring sufficient and permanent access to a balanced range of high-quality treatment.’76

The third idea of transnational solidarity that underlies EU law, then, posits that while it is important to encourage Union citizens to make use of the opportunities generated by the integration process in their pursuit of the ‘good life’, it is more important to stabilise access to positive welfare entitlements for immobile citizens. The need to prevent conflicts of justice between mobile and immobile citizens requires, in light of the parasitic dependence of the Union’s own claims of justice on the actual availability of welfare goods such as universities or hospitals, that the obligations of non-discrimination must be limited to protect access to such welfare goods.

V Conclusion: A Question of Justice

This contribution has argued that the paradigm of ‘transnational solidarity’ can be helpful in understanding and mediating in conflicts of justice in Europe. It has emphasised that the different conceptions of justice that exist on the national and transnational level are not mutually exclusive. Rather, EU law can facilitate the pursuit of social justice by complementing the capacity of the national welfare state to generate the willingness to redistributive scarce resources. The Union’s own con- ception of justice revolves less around political self-determination and more around allowing citizens to pursue whichever conception of ‘the good life’ they favour—by ensuring that they can make use of their rights to free movement without loss of the positive welfare entitlements that are elemental in any such life.

To contribute to such objectives of justice, however, EU law must be careful to allow for the communication between national perceptions of justice, which centre around the reciprocal interaction between the citizens who make up such societies, and transnational ideas of justice that accord importance to different types of attach- ment between the individual and the state. It was argued that the concept of tran- snational solidarity can serve to integrate national and transnational ideas of justice. They rationalise the reasons for which migrants should fall within distributive arrange- ments in the host state and at the same time insulate the reciprocal commitments that underlie the availability of positive welfare entitlements on the national level by offering a limit to the demand of non-discrimination that is attached to the exercise of free movement. By doing so, transnational solidarity not only ensure that conflicts of justice do not spill over into a crisis of legitimacy for the Union but even offer an insight into how the Union can significantly enhance the capacity of all its citizens to live ‘good lives.’ In this view, the three transnational solidarities can even be seen as the supranational institutionalisation of the Union’s commitment to self- determination,77 equal citizenship, individual well-being and solidarity.

First submission: November 2011 Final draft accepted: December 2011

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.

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