By Jean-Paul Jacqué
At the last Pre-Presidency Conference in Nicosia, TEPSA members took part in a lively discussion on the topic of solidarity. At this occasion, several participants questioned the legal validity of this principle. This editorial aims at providing some information on this issue.
It is perhaps a commonplace to state that once a society decides to set up frameworks in order to achieve a common goal, solidarity represents the cement of it – regardless of whether it is a fisher’s association or a state. From the beginning of European integration, the concept of solidarity was highlighted by Robert Schuman in his speech in the Salon de l’Horloge which referred to the creation of de facto solidarity. From Westphalia to Rome, we have moved from reciprocity to solidarity. The logic of the Monnet method and the spillover effect are based on this idea; when the challenges are beyond the capacity of a single state, it is necessary to address them jointly and the solidarities already created serve as cement for developing new ones. The concept of subsidiarity, as introduced into EU law by the Treaty of Maastricht, is another aspect of this solidarity. For the fields that can be managed by a single state, national solidarity is enough, however when a transnational link is established, solidarity plays a role at European level.
The concept of solidarity is very present in the treaties since there are six references in the TEU and six others in the TFEU. It is noteworthy that the term of solidarity appears as a mantra precisely in those areas where solidarity is weaker (three times in the CFSP, twice in the asylum and immigration). Article 80 TFEU even uses the term “solidarity principle”. One reference relates to energy, a new policy area introduced by the Treaty of Lisbon, another to the financial assistance as an exception to a bail-out, and also one related to the overseas territories. Finally, the treaty contains a solidarity clause in case of financial disaster or terrorism. This variety expresses an important aspect of the issue: solidarity is expressed in different ways depending on the policy of the Union in question.
The general reference to solidarity is made in the preamble of the TEU (“Desiring to deepen the solidarity between their peoples”), which comes on top to the classic statement of a ever closer Union. The new element is the one contained in Article 2 on values. Solidarity is not mentioned as a value here but as a feature of European society. This solidarity is not qualified. Is it the solidarity between member states or the solidarity among citizens within the EU or within the Member States? All forms of horizontal and vertical solidarity seem to be covered. Social solidarity is addressed more specifically in the Charter of Fundamental Rights of the EU. Under these conditions, is solidarity only one element, sometimes even hypocritical, of political discourse or does it have a legal value? The Court does refers to the principle as such, but mainly in infringement procedure cases.
In order for solidarity to be an operating legal principle it would require its content to be sufficiently precise to be legally tested. As noted by the Court in Case C-149/96 “a general principle of law cannot be derived from programmatic provisions that do not contain a specific obligation.” But the concept of solidarity is programmatic. This does not mean that the recourse to solidarity is stripped of any legal significance.
Solidarity is a constitutional principle inherent in the Union as stated in Article 2 TEU, but it is also a constitutional objective. The Union is based on solidarity and aims at amplifying it. The implications are twofold:
1. During the elaboration of the Charter, there were long discussions on the difference between principles and rights. The result of this is that rights are directly justiciable whereas principles are only justiciable through measures to implement them. Once a policy aims at strengthening solidarity, any attack on it is thus justiciable.
2. If a Union act goes directly against a principle or prevents its achievement, it is invalid (ECJ, 6 and 11/69). In this case, the Court stated that the establishment of preferential discount rates for exports constituted an infringement because it was opposed to the principle of solidarity, based on the community system in its whole.
Under these circumstances, the obligation or the objective of solidarity plays a key role when it materializes through positive or negative measures of implementation. It takes two forms: solidarity between member states and solidarity between citizens of the Union.
I. Solidarity between Member States
Without going into detail on all aspects of solidarity in Union’s policies, it suffices to take some examples such as the institutional solidarity and the financial solidarity.
A. Institutional solidarity
This solidarity is primarily expressed in the principle of loyal cooperation between member states and institutions enshrined in Article 3 TEU. This principle of loyalty is the natural outcome of solidarity since there is no solidarity without mutual trust in the compliance with all of its obligations. This aspect of solidarity is the translation of the rule Pacta sunt servanda in an institutionalized context familiar to lawyers in international law. Within the logic of integration, this rule is not left to the discretion of the individual subject to reciprocity. The rule is controlled by institutions and sanctioned by the infringement procedure. The Court does not say anything else in Case 39-72 where it finds that the non-respect by Italy regarding milk quota affects the balance between benefits and costs of the Common Agricultural Policy, calling into question the equality of Member States and therefore constitutes a breach of the principle of solidarity..
The principle of loyal cooperation takes three forms for member states: to take all appropriate measures to ensure the fulfillment of the treaty obligations, to facilitate the achievement of the Union’s tasks and to refrain from breaching the treaty. This latter requirement is not subject to a restrictive interpretation. In case 6 and 11/69 (aforementioned), France argued that contested measures did not fall under Community competence. The Court replied that the principle of solidarity requires that member states refrain from using their own competences to prevent the compliance with the Treaty. This will lead to important case law that subordinates the use of member states’ competencies in respect to the Treaty, on the basis of solidarity.
Similarly, when it comes to facilitating the achievement of the Union’s tasks, the Court considers it appropriate that member states should refrain from taking any measure which could jeopardise the achievement of the Union’s objectives. Consequently, in the case 266/03, Luxembourg was condemned for having concluded negotiations within the framework of a joint agreement while the Community itself had already opened negotiations.
Thereby, the solidarity principle under the form of loyal cooperation nourishes all the implementation mechanisms of EU law.
B. Financial solidarity
Leaving aside the economic and monetary solidarity which are subject of intense debates, the financial solidarity is one of the pillars of the Union. Budgetary solidarity is evident. Unlike the traditional international organisations, the Union’s budget does not cover merely the functioning of the organisation, but also policies that benefit member states in different degrees, particularly with regard to cohesion.
Union’s policies are based on a redistribution which is, by default, a form of solidarity. The extent of redistribution is certainly subject to constant controversies like witnessed by the claims of “net contributors” and the invocation of the principle of “juste retour”. But even in the British case, there is a place to solidarity as the rebate only covers 66% of the amount by which UK payments into the EU exceed EU expenditure returning to the UK.
The extent of solidarity is a political choice to be made at the time of discussing the EU’s own resources in connection with the Multiannual Financial Framework. But once a decision has been made, solidarity fully plays its role as noted by the Court in the case C-239/05 on the duty-free import of military equipment by Italy. The latter invoked Article 296 EC and the necessity to ensure its external security. According to the Court, this argument is not sufficient to evade from “the obligations imposed by financial solidarity as regard the community budget” at the expenses of other states.
Institutional solidarity is not the only one that has to be taken into account by the treaties. The solidarity between citizens plays an increasing role in the European Union.
II. The development of interpersonal solidarity
This type of solidarity finds its main scope of application within social policy. One could find applications in other fields such as the internal market. Yet in the social field, the development of citizenship shows an emphasis of solidarity at the Union level which may undermine the national solidarity.
A. European citizenship, a support for solidarity
European citizenship is reflected in a set of rights and duties both vis-à-vis the political authority and vis-à-vis the citizens. Of course, the first impact has been political (voting rights, consular protection abroad …), but the essential impact, and perhaps unexpected, comes from the combination of citizenship, freedom of movement and non-discrimination.
Freedom of movement gives access to social and health benefits in the host country. This situation was originally restricted to workers and has been extended to other citizens by law. But this extension was multiplied by the Court of Justice when it indicated that “citizenship is the fundamental status of member states to allow those among them, that are in the same situation to enjoy regardless of their nationality … the same legal treatment “(Martinez Sala, C-85/96). The Court’s jurisprudence will become more extensive, allowing family members of a citizen to benefit in some cases from advantages that are normally restricted to citizens when they are not citizens themselves.
European citizenship provides access to national solidarity in the name of European solidarity, but wouldn’t it in some situations represent a risk to undermine national solidarity?
B. Preservation of national solidarity
National solidarity is now the essential element of national identity. Each member state has developed its own system of redistribution citizens rely on. European solidarity complements these systems and does not challenge them. For this particular reason the treaty contains a number of safeguards designed to protect national solidarity. This is the case of the ‘brake’ clause on social security of migrant workers which allow the possibility to refer an act which would affect important aspects of national security system “regarding the scope, the cost or the financial framework, or would affect the financial balance of that system” to the European Council.
Similarly, Article 14 TFEU recognises the role of services of general interest in social cohesion and requires the legislator to take measures to enable them to accomplish their mission.
The jurisprudence of the Court has also expressed the will to preserve national solidarity. It is willing to do so by requiring the existence of a genuine link with the state of residence to receive certain benefits or by restricting the access to health services by the imposition of a permit from the state of origin to benefit from the reimbursement of certain hospital services delivered in another member state. Or by agreeing that one could limit the enrollment of students from another member state if the recruitment for a profession or the system’s financial balance is put into question.
There is a balance that requires an appreciation of solidarity. But one could question whether it is the judge should make that assessment, or whether the legislator should intervene.
Solidarity is a founding principle that nourishes the entire system. It is a source of rights in many policies, but has direct effect essentially only through its various implementations.
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