The (slow) redress of the ‘solidarity deficit’ in the EU and the emerging principle of solidarity in EU law #

A. The early days of solidarity

The fact that solidarity can be expected to be stronger when the common scheme is more developed and visible, participation is more direct, and when participants feel more strongly attached to the identity of the underlying group, ³⁹ clearly implies some challenges for the existence of solidarity in a context such as the EU that transcends one's primary community, ⁴⁰ or on a global scale. Nevertheless, the fact that there are challenges does not mean such solidarity cannot be present in a transnational setting as well. ⁴¹ It has already been shown that identity can, and in a majority of cases does, exist at several levels, including the national and EU level. ⁴² And, while it may be less developed and visible to citizens, it is clear that the EU provides a kind of common scheme from which all Member States are expected to (have) benefit(ed) from. Moreover, as we noted, trust generated by strong collective identity can at least partially be replaced by trust in the control and enforcement of the solidarity settlement by common institutions (rules, courts).

This latter approach resonates with the Court of Justice's early case law on solidarity, linked to the duty of sincere cooperation, where it invoked it to unequivocally require Member States to apply EU legislation even where they disagreed with it or pleaded internal difficulties to comply. ⁴³ The Court stated:

In permitting Member States to profit from the advantages of the Community, the Treaty imposes on them also the obligation to respect its rules.

Participation in the project is framed, by the Court, as an act of solidarity. And, in return, there may be redistribution, as the Court clarified in another early case ⁴⁴ :

The solidarity which is at the basis of these obligations as of the whole of the Community system in accordance with the undertaking for provided for in Article 5 (i.e. the principle of sincere cooperation) is continued for the benefit of the states in the procedure for mutual assistance provided for in Article 108 where a Member State is seriously threatened with difficulties as regards its balance of payments.

Member States need to not only follow the rules but facilitate the achievement of common aims, they need to assist the Union. And in return, they may be assisted.

The original Treaties indeed featured some instruments for such assistance and more generally the sharing of the expected gains of the common market, such as most notably the structural funds. But – at least initially – the socio-economic model of the common market was one where economic integration would lead to the ‘growing of the pie’, and where the distribution of the pie slices would fall to the Member States: the intention was not to create a European Welfare State. Such a disconnect between the first and second steps of solidarity outlined in the previous section could be considered as precarious and inherently instable, especially in combination with the initial lack of direct political participation by citizens in the decision-making of the common EEC scheme and the judicial development of a strong legal hierarchy placing European-level economic authority and competition above national-level social competence and redistribution. ⁴⁵ However, it may be posited that an important stabilizing solidarity factor in those early years was a non-economic benefit perceived as directly related to the EEC/ECSC project: peace on the European continent. ⁴⁶ Wartime sacrifice was still keenly and widely felt at the time, and the development of transnational schemes such as the EEC/ECSC was explicitly and deliberately presented as the solution. Although Weiler's account ⁴⁷ of the EEC's post-war ‘political messianism’ and ‘telos-legitimacy’ of peace may be overstated, ⁴⁸ it does seem likely that the commonly felt sacrifice of war and benefit of peace provided a social embedding of the EEC's economic cooperation and integration project, which was hoped by many to provide the concrete machinery for the incremental building of solidarity as a way out of Europe's warring state. Monnet's famous words in the 1950's Schuman Declaration that ‘Europe will not be made all at once, or according to a single plan – it will be built through concrete achievements which first create a de facto solidarity’ can be read as a recognition of the importance of solidarity not just as an intangible value but as humankind's most powerful dynamic and concrete arrangement to achieve and maintain peace and prosperity, requiring continuous collective work. Through concrete cooperation, in ‘an organised and living Europe’ growing a ‘a wider and deeper community between countries long opposed to one another by sanguinary divisions’, ‘war…becomes not merely unthinkable, but materially impossible’. ⁴⁹

B. Solidarity waning

About two generations on, the fading of the memories of war perhaps inevitably eroded the ‘buffering’, imaginary role of peace as a main benefit to inspire citizen's loyalty to European Union as a scheme. Economic integration in se seemed to be left to take over as the main telos and focus of the common scheme instead, ⁵⁰ expressed in ‘economic constitutionalism’ ⁵¹ with a certain deregulatory and individualistic orientation, presenting a fundamental challenge to solidaristic approaches to society and the market's place therein ⁵² and favouring freedom and equality over the dignity and solidarity value components of constitutionalism. ⁵³ This was well-embedded in the global zeitgeist, ⁵⁴ at the end of the Cold War, consisting in a firm belief in both the inevitability and desirability of liberal democracy and market economy as humankind's destiny. ⁵⁵

And so, towards the end of the 80s, the Single European Act ‘relaunched’ the – by then perceived as stagnant – European integration process with the objective of the ‘completion of the Single Market’ by 1992, leading to the adoption of ‘282 laws to remove technical, legal and bureaucratic barriers that hindered free trade and movement’. ⁵⁶ With the 1992 Treaty of Maastricht, the Economic and Monetary Union was launched, widely perceived as a neoliberal or ordoliberal construct. ⁵⁷ A few years later, 10 post-Communist countries acceded to the EU. In preparation for accession, the EU forced these countries to conform to neoliberal policies, ⁵⁸ which they then adopted and carried forward ‘fervently’, ⁵⁹ thereby injecting further market-zeal into the entire EU undertaking. Meanwhile, the Union's powerful integrative legal mechanism, in the form of economic freedoms directly invokable by economic actors in national courts, created a social problem. To cite Weiler:

The situation implicated in preliminary references always posits an individual vindicating a personal, private interest against the public good. Paradoxically, European rights, in some interesting way, become anticommunity rights. If the social reality of the European construct were stronger, this could be seen as mitigating such an effect. But the reality of the situation, from a social perspective, is that—for good legal reasons—the principal artifact of the rule of law in the thin political space constituted by Union places the individual at odds with his or her thicker political space. This is how it should be, legally. This is what creates the most effective compliance pull. But this is why it also contributes to the national social and political turn against the Union. ⁶⁰

The problem identified lies not so much in the enforcement of just any individual rights against collectively adopted policies and rules. Fundamental human rights are, in fact, important aspects of a solidarity arrangement. Fundamental social rights are classically conceived as providing the infrastructure for, as well as protection and expression of, solidarity, but the same could be said for all human rights. The enforcement of these rights against collective decision-making may – at times – create a societal tension, ⁶¹ and for that reason judicial review should be handled with extreme care, but overall the protection of these human rights should serve to foster a society's solidarity arrangement rather than to undermine it. The problem lies, rather, in the enforcement of individual economic interest, ⁶² especially by powerful economic actors, against public interest. In the EU context it could be defended that the right to non-discrimination not just for workers and citizens but for companies serves to open up national economic arrangements precisely in a spirit of European-level cooperation (in itself an expression of solidarity, albeit somewhat contradictorily in terms of competition). However, as is well known, these rights have been extended far beyond the elimination of discrimination and protectionism to the constitutionalization of pure economic freedom, ⁶³ which – problematically – may be well invoked against core solidaristic expression and rights, such as citizens demonstrating for a clean environment ⁶⁴ or workers organizing against a social dumping. These interpretations of the Treaty have ‘constitutional’ value, and cannot be overruled by collective decision-making at either national or European level, presenting a social and democratic problem. ⁶⁵

To what extent is this counter-weighed by the introduction of the concept of EU Citizenship in the Maastricht Treaty, which is widely considered to have bolstered the Court's already prosocial case law in the area of the free movement of persons in the internal market, requiring Member States to extend, in solidarity, certain aspects of their welfare systems to non-nationals? ⁶⁶ Indeed, it is in this context where solidarity as a legal concept in EU law was further developed in more substantive terms, ⁶⁷ beyond the earlier references to the duty of Member States to comply with their obligations under Community law. It has been suggested that it is the ‘appropriation’ by the EU of ‘solidarity’ (first conceived as something separate from and outside of EU law) ⁶⁸ in precisely this citizenship case law, that has led to the ‘proud’ inclusion of solidarity in the Draft Constitutional Treaty. ⁶⁹ The Court of Justice played, from the outset, an active role in the fundamentalization of EU citizenship and the attenuation of its economic underpinnings, ⁷⁰ at times challenging the Member States’ inclination to see non-economically active EU citizens as ‘unreasonable’ burdens (although thereby implicitly accepting the underlying premise that burdens, they are). EU citizenship law of the time was driven by a solidaristic interpretation of equality (social inclusion of EU migrants into the national welfare system), as well as freedom (of movement) and dignity. This therefore does provide a prominent counterpoint to the critique of a disembodied single market in the post-Maastricht legal and political order myopically pursuing individual, economic freedom. Yet, as many have pointed out, EU citizenship failed to become genuinely de-commodified, ⁷¹ and contained and expressed ideals of ‘market citizenship’ ⁷² and ‘market solidarity’ ⁷³ , based on an understanding of welfare mechanisms as ‘insurance’ systems. ⁷⁴ Moreover, for our purposes, although highly significant for EU law and its self-perception at least in some circles, EU citizenship did not reach the masses ⁷⁵ and failed to genuinely change the overall EU project in both its functioning and its understanding.

Looking back, these circumstances must have played a role in the failure of the Constitutional Treaty. Perhaps even more important than the lack of a European identity was the lack of a solidarity basis that made the idea that citizens would endorse a European Constitution misguided (or mad ⁷⁶ ). But instead of reflecting on these foundational problems, and its social and economic causes, the Court of Justice doubled down on economic freedom in its own conception of the EU's ‘constitution’. Emblematic are the 2007 Viking/Laval judgments. ⁷⁷ The Court gave an extremely wide application to the market freedoms, applying them to trade unions in their exercise of fundamental social rights, and conceptualized these fundamental rights as (at least in Laval) unjustified restrictions. To this day, social actors feel deeply betrayed by this case law. It fundamentally changed the solidarity settlement, already precarious and instable as discussed above, by undermining solidaristic structures in the name of European economic competition. Although it has sometimes been argued that this line of cases can be read as requiring solidarity of workers of rich Member States to workers of less well-off Members States, ⁷⁸ more convincing empirical and conceptual analyses point to the fact that the effect of the case law has been to empower businesses across all Member States vis-à-vis workers (often in vulnerable situations) across all Member States. ⁷⁹ It has fundamentally undermined both national and transnational solidarity among workers. At that point in time, partially due to the ‘over-constitutionalization’ of the market freedoms, ⁸⁰ and partially because of the political configuration of the enlarged EU, EU law systematically stimulated social deregulation at national level while finding it all but impossible to enact social protection measures on the European level. ⁸¹ The result came close to the solidarity ‘system failure’ outlined in section 2, where a group of people (particularly, the non-mobile working-class citizens) were not asked to participate in a common scheme where the individual yields would be uncertain, but instead in a framework where their direct personal loss was certain, and the long-term promise of an overall increase in prosperity was too vague and unrewarding.

C. Solidarity in crisis

With constitutional protection of social rights in the EU at their low point following Viking/Laval, the Union entered the 2007–2008 financial crisis, resulting in the sovereign debt and Euro-crisis, where solidarity in political and economic terms came close to collapse. Yet the story here is not a straightforward one. It should be acknowledged that the role of solidarity in the Euro-crisis is contested and complex. On the one hand, a large amount of financial assistance was provided to Member States in grave financial difficulties. On some views, Member States even went above and beyond not only what the Treaty requires but even allows: Article 122 TFEU does not textually require assistance to be given and the no-bail out clause of Article 125 TFEU seems to prohibit unconditional assistance. So for the ‘creditor states’ to create the various facilities (the European Financial Stability Facility (EFSF), the European Stability Mechanism (ESM)) and engage in wide-scale financial assistance packages, while facing consequences of the economic downturn themselves, does constitute in itself an act of solidarity. This also seems to be the conceptual approach of the Court of Justice in this regard, which in Pringle followed (implicitly) the AG in the interpretation that Article 125 did not preclude the ESM, an interpretation that the AG reached explicitly on the basis of solidarity. ⁸² The AG considered that a broad interpretation of 125 would actually preclude financial assistance but that such would run counter the concept of solidarity. That concept on the other hand does not impose a duty to provide such assistance either.

Others have argued that the very conditionality logic does not reflect real solidarity. Habermas has in this context stated, lambasting the German government's approach:

Solidarity is a term that describes the mutually trusting relationship between two actors who have become part of a joint political project of their own free will. Solidarity is not charity, and it certainly isn’t a form of conditioning for the advantage of one of the actors. Those who engage in solidarity are willing to accept short-term disadvantage in the service of their long-term self-interest and in the knowledge that the other will behave the same way in a similar situation. Reciprocal trust – in our case, trust across national borders – is just as important a variable as long-term self-interest. Trust bridges the time span until a service in return is due, though it is unsure when or if it will ever come due. The compulsory, rigid conditions for so-called solidarity aid clearly exposes the lack of such a foundation of trust – and the hollowness of our self-image as good Europeans. ⁸³

The fact that a formal framework for repayment and conditionality was laid down is not, in view of the theoretical approach of this paper, contrary to solidarity and trust: such legal provisions can precisely be conducive to the trust that is needed for such extensive expressions of solidarity. It is not legal conditionality as such, but the substantive way this has been operationalized, that has been – as debtor states would argue – decidedly un-solidaristic. The conditionalities specified in the Memorandums of Understanding ⁸⁴ were not drafted in a spirit of transnational solidarity and with due regard to national solidarity structures, but instead carry a punitive flavour and have contributed to a grave social crisis in the debtor countries through demanding unprecedented ‘structural reforms’ that, more as the rule than the exception, dismantled national welfare and social protections, making the vulnerable pay. ⁸⁵

Ultimately, what emerged was a fundamental upset of the solidarity settlement underpinning the common EU project. A lack of trust, a disagreement (or misunderstanding) about who (is supposed to) contribute(s) what to the common project, and differing (ideological, economic) views about the causes of the crisis, were important factors. Creditor states felt they were handing out charity to resolve a self-inflicted crisis of over-spending, while debtor states felt humiliated and underappreciated, both ultimately feeling short-changed – everybody losing. Political narratives have played a corrosive role in this regard. A lot is captured by Eurogroup chief Jeroen Dijsselbloem's remark that ‘I can’t spend all my money on drinks and women and then ask for help’. Some of the solidarity failures in the handling of the Euro-crisis may be uniquely tied to the specifics of that unprecedented, global, economic disaster, but it also laid bare the fact that the EU's solidarity basis had already been eroded, through the aforementioned waning of peace-inspired solidarity in the early 80s and the (policies adopted in the name of the) dominant neoliberal zeitgeist of the time. Years of hardline austerity followed the crisis, compounded by the Court's ‘economic constitutionalism’, almost entirely dismantling certain key solidaristic structures such as collective bargaining.

Indeed, those who had hoped that the binding nature of the EUCFR would spell a greater respect for social rights in the EU legal order would become unpleasantly surprised by how in some ways the Charter ‘backfired’, providing according to the Court a basis to further expand and ‘constitutionally’ entrench economic freedom (per se). In Alemo-Herron, ⁸⁶ a much-maligned judgment that according to Weatherill deserves to be ‘consigned to the bottom of an icy lake’, ⁸⁷ the Court used Article 16 EUCFR on the ‘freedom to conduct a business’ to read a minimum harmonization Directive adopted on an internal market basis but intended to protect the interests of workers in the event of a transfer of undertakings, in a way that it precluded a Member State from providing, in the event of a transfer of an undertaking, that dynamic clauses referring to collective agreements negotiated and adopted after the date of transfer are enforceable against the transferee. The judgment was widely criticized on a variety of grounds, ⁸⁸ but particularly interesting for our purposes is – firstly – that Article 16 was given an interpretation that ‘push(es) the throttle in favour of an even more developed economic union’ by allowing the right to conduct business to be used as a ‘safeguard against barriers that the member states may want to put up in the internal market’ even in purely internal situations. ⁸⁹ Secondly, the various fundamental social rights that would be relevant to the case, and that should at least have been used to balance Article 16 EU Charter, such as Article 28 on collective bargaining and Article 31 on fair and just working conditions, were ignored. Similarly, in AGET, ⁹⁰ in the context of the collective redundancies in the economic crisis in Greece, the relevant fundamental social right in Article 30 EUCFR on protection against unjustified dismissal gets only a brief mention in passing, ⁹¹ while Article 16 EU Charter is forcedly drawn into the assessment of a restriction of the freedom of establishment. The latter judgment deploys a language more cognizant of the need for public interest restrictions of Article 16 EU Charter, but the asymmetry in the treatment of economic fundamental rights and fundamental social rights is striking, as is the conflation of the freedom of establishment and the freedom to conduct a business.

Meanwhile, just as the EU was slowly recovering, Europe was faced with a high number of both refugees and irregular migrants seeking entry. The political crisis this caused, again stingingly confirmed the by-now near-total lack of solidarity between Member States (as well as, even more worryingly, to refugees). When the Council adopted a provisional emergency relocation scheme (Council Decision (EU) 2015/1523 and Council Decision (EU) 2015/1601), Poland, Hungary and Czechia refused to comply with it. The Commission then referred these Member States to the Court of Justice, the latter having already rejected the challenges against the relocation system brought by Hungary and Slovakia, stressing the solidarity-obligation that rests on the Member States in this area on the basis of Article 80 TFEU. ⁹² The Court upheld the Commission's action, making multiple references to the principle of solidarity underlying the Union's asylum policy. ⁹³

Indeed, a positive duty of cooperation in terms of Member State solidarity has been specified in the area of freedom, security and justice. Article 67(2) TFEU provides that the Union ‘shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this Title, stateless persons shall be treated as third-country nationals.’ This is repeated in Article 80 TFEU, which states that ‘the policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle.’ AG Sharpston's passionate Opinion ⁹⁴ in those cases is often cited and considered an inspiring commitment to solidarity in the Union:

253. Solidarity is the lifeblood of the European project. Through their participation in that project and their citizenship of European Union, Member States and their nationals have obligations as well as benefits, duties as well as rights. Sharing in the European ‘demos’ is not a matter of looking through the Treaties and the secondary legislation to see what one can claim. It also requires one to shoulder collective responsibilities and (yes) burdens to further the common good.

Yet although, on the one hand, the Judgments and Opinion refer to the principle of solidarity in asylum policy, on the other hand, the added value of these references in the judgments, and thus the notion, is not entirely clear. Ultimately, as Mitsilegas points out, ⁹⁵ the conceptualization of solidarity in this area – even in the lauded Opinion of the AG – is about burden-sharing and state-centred, it is exclusionary as it does not extend solidarity towards the migrants themselves (rather systematically sees them as undesirables), and as such hardly lives up to the foundational universal value of solidarity on which the Union is founded according to the Charter's preamble – nor for that matter the fundamental rights contained in that Charter.

Indeed, a problematic conception of solidarity and mutual trust pervades this area of EU law. The Court has considered that the Dublin system ⁹⁶ is based on the principle of mutual trust and that therefore national courts should assume that the fundamental rights of migrants will be complied with when they decide on a return to another Member State (usually the Member State of entry). ⁹⁷ Only if there is a real risk of inhumane or degrading treatment contrary to Article 4 EUCFR can this presumption be rebutted. As Smyth pointedly summarizes, ‘there is a conclusive presumption of safety as regards fundamental rights violations that do not meet this threshold’, which ‘flies in the face of definitively established facts about disparate (and sometimes desperate) reception and processing conditions in different Member States—the CEAS and Charter commitments notwithstanding’. ⁹⁸ The concern is that solidarity between the Member States in the form of mutual trust is leading to severe downward pressure on, if not violation of, the fundamental rights of particularly vulnerable individuals. It reflects an EU-centric, in-group version of solidarity, in quite vulgar contrast with the more humanistic, universal understanding of this notion.

D. Solidarity shifting

Tragically and symbolically, ‘the end of solidarity’ in the EU may – from a UK perspective – be well represented by the Brexit vote in 2016 and the UK's subsequent withdrawal from the EU. Yet for the EU it was an opportunity for a reboot. Most notably, in November 2017, the European Commission, Parliament and Council signed a ‘solemn’ Inter-Institutional Proclamation on the European Pillar of Social Rights. ⁹⁹ This was a remarkably swift follow-up from the Commission's own, unilateral ‘launch’ of the Pillar in April 2017, ¹⁰⁰ itself the speedy outcome of a preparatory phase lasting only a year. ¹⁰¹ The Pillar signalled a profound change in political direction after the crisis-years in which the EU's social dimension was put under significant pressure. The Pillar entailed first and foremost a high-profile political reaffirmation of a set of 20 social rights and principles, and signalled an intention to adopt concrete legal measures and policies in order to give further effect to these rights and principles. Over the past couple of years, the Pillar's ‘implementation’ has entailed – as foreseen – the deployment of the full array of EU governance instruments: regulations and directives, ¹⁰² recommendations and communications, ¹⁰³ the creation of new institutions, ¹⁰⁴ funding ¹⁰⁵ and country-specific recommendations. ¹⁰⁶ As such, the Pillar has followed in the footsteps of the 1989 Community Charter on the Fundamental Social Rights of Workers with its accompanying Action Programme, on the basis of which an important part of the EU social acquis was progressively adopted. The Pillar led to a renaissance of Social Europe, with new, high-profile solidarity flagships, including a minimum wage directive. It reflects, at least in the EU's political institution, a rejection of austerity and neoliberalism, and a political vision much more in line with the EU's foundational values.

Just as the first measures adopted under the Pillar were entering into force, the COVID-19 pandemic struck in early 2020. Authors such as Beaucillon ¹⁰⁷ and Kurczewska ¹⁰⁸ have pointed out that the initial response to the COVID-19 crisis was not in a spirit of solidarity, with Member States shamefully refusing to provide material assistance to Italy in the early days of the outbreak, and initially the well-worn struggles between ‘Northern’ and ‘Southern’ approaches to the EU budget flaring up. In a comprehensive study of political discourse on COVID-19 fiscal solidarity, Miro furthermore finds that ‘during the COVID-19 crisis management debate, diverging visions on what is the EU and why should EU solidarity be embraced developed along the Northern–Southern interstate cleavage’. ¹⁰⁹ Yet EU leaders appealed to solidarity, ¹¹⁰ with success. It needs to be acknowledged that the EU has risen to this solidarity challenge. In particular, the EUR 750 billion NextGenEU recovery fund, allowing the Commission to raise funds by issuing common debts, transferring this to the Member States in grants and loans, constitutes a decisive break with the previous non-solidaristic approach. While there remains a conditionality logic in place, it is a mirror image of the austerity conditionality we saw before: it promotes (social) investment instead of social cut-backs.

Crucially, the Covid-crisis measures provided a blueprint for the subsequent response to the war in Ukraine, with the Macrofinancial Assistance+ (MFA+) ‘following in the footsteps’ of SURE and NextGenEU (especially the RRF). ¹¹¹ It entails once again common borrowing and spending, which suggests a trend towards consolidating a centralized fiscal capacity at the EU level. ¹¹² Furthermore, as Guild writes, ‘one of the most immediate and dramatic reactions of the EU was to open a special protection scheme for Ukrainians and non-Ukrainians who were resident in the country on the date of the invasion to enter the EU and remain with extensive rights’ on the basis of the 2001 Temporary Protection Directive – previously unused and slated for repeal. ¹¹³ This means that in the two areas where solidarity was at a nadir only a few years ago, the EU ‘found back its mojo’ as one newspaper put it. ¹¹⁴ Thirdly, the war is deepening EU integration in energy and defence. In energy, the war is driving EU energy autonomy, with the plan for REPowerEU seeking to ‘to build an integrated energy market that secures supply in a spirit of solidarity’. ¹¹⁵ Highly noteworthy is that shortly before Russia's invasion, the Court of Justice in OPAL had already – in light of the already existing Russian territorial breaches of Ukraine – confirmed the relevance of the principle of solidarity in energy, giving it firmer legal teeth than expected, ¹¹⁶ as we will discuss below. This can now be seized on by the Commission to develop its common energy policies, ¹¹⁷ capitalizing on the surge of public support for this in reaction to the war. ¹¹⁸

The war in Ukraine is driving integration in a range of areas, and solidarity language now permeates the political narrative in all of this. This may show how the threat of war, once again, provides existential force to the European Union – even if in the context of the war in Ukraine this is leading to something of an existential paradox, as this peace project is now actively contributing to fighting a war. ¹¹⁹ Political narratives on values generally, and solidarity in particular, have real impact. ‘Different justificatory arguments have different impacts on the solidarity structure of the Union as well as on what “point and purpose” the EU is perceived to have.’ ¹²⁰ The war in Ukraine will have an impact on how we see the EU going forward. It does, for now, seem conducive to a further development of European solidarity. Of course, the question is whether this will be followed through and, moreover, how this pertains to solidarity in more universal humanistic terms. The indisputable moral claim of the Ukrainian people, their courage and European-ness, and the fight for our values they are fighting, makes extension of solidarity towards them – apparently – easier than to other groups of migrants. ¹²¹

A. Universality

The Charter tells us, unequivocally, that the solidarity on which the EU is founded is universal (as is human dignity, freedom and equality). This means that there is no justification for an exclusionary interpretation of these principles and the rights that emanate from them, they belong to all human beings. The principle of universality is the cornerstone of international human rights law, and means that all people are equally entitled to human rights, regardless of where they come from and live, and that it is not up to any state or other authority to decide who has rights and who does not, that they do not depend on citizenship or nationality, as they are something we have, simply by virtue of being human. It is especially in relation to the value of solidarity that such universality is important, because of solidarity's team-reasoning component. The universality requirement prohibits us from falling into the trap of treacherous in-group out-group dynamics, of generating in-group solidarity by explicit juxtaposition with others. ¹³⁰ It reminds us that ultimately we are all part of same group and that we are all interconnected and interdependent in various ways. While in a concentric circle approach, we are of course entitled to belong to various (closer-knit) sub-groups, in which deeper ties result in more extensive mutual rights and obligations, but these should be peacefully embedded in one another, and not be at the cost of others. In the global scheme, we are all somehow, more directly or indirectly, indebted to human achievement, sacrifice and care by humans from all over the world, and from a long way back. ¹³¹ In accordance with universal solidarity, we owe a universal prosocial commitment as payback, and we should seek to pay it forward to future generations.

This may sound idealistic and abstract, but with some effort can be made more intelligible and concrete. Law cannot do this alone, but it can play a role. And in this, the Court of Justice could take a responsibility for moral leadership. ¹³² More specifically, the Court could ensure that in all the various iterations of solidarity in the Treaties, a universalistic reading is adopted. This could make a real difference, for instance in migration/asylum law, where we see a myopic invocation of the solidarity principle as a duty on Member States to ‘share’ migrants as ‘burdens’, rather than with a spirit of solidarity towards the migrants themselves. The Court could in this area play an important role to protect the dignity of migrants and the equality of human beings. For one thing, this would cast an entirely different light on the Court's mutual trust case law in the area of asylum: instead of requiring us to ‘trust’ that authorities of EU Member States will not infringe the human rights of migrants (in the face of overwhelming evidence that they do and will), it would at least allow but arguably require, in a spirit of universal solidarity, all Member States to take responsibility for the human rights protection of migrants, and thus for instance to prevent their return to the Member State of first entry under the Dublin system if there is a reasonable ground to believe that their human rights will not be respected there.

B. Indivisibility

The second indication that we can derive from the Charter's preamble is that the founding values of dignity, freedom, equality and solidarity are indivisible. Much like the specification of universality, this too provides fertile conceptual ground, and allows us to understand certain (well-known) legitimacy shortcomings of European law specifically from a solidarity perspective. What is indivisibility to mean? Apart from the fact that the Union's actions have to be guided by all four values (and thus that all the rights contained in all four chapters of the Charter have to be respected and realised), it can be taken to mean that these four values have to inform each other's content. This in turn means that their relationship needs to be thoroughly theorized in order to interpret/apply each of these concepts, and the rest of the primary and secondary norms in the EU legal order. The stakes and potential are thus significant. This section will offer some tentative elements that may inform such a reflection.

Firstly, dignity- and freedom-based solidarity suggests that individuals should have some ownership over their participation in the common project and its modalities, for otherwise it could undermine an important part of citizens’ democratic agency and thereby their collective and individual freedom and dignity. Secondly, this also means that any redistribution of the gains of the project should carefully respect the recipients’ dignity and not undermine their freedom. Crucially, redistributive measures should not take the form of a pedantic benefit that could be felt as a ‘hand-out’, and should instead seek to make a concrete contribution to the individual's meaningful employment or individual agency in a different way (empowering) without being condescending, punitive, shaming, captive or mistrustful (as unfortunately certain aspects of many Western welfare states have become). ¹³³ As a concrete example, retraining and lifelong learning are important policies, but if such policies are not carefully designed from a dignity and freedom perspective, they may still lack effect or become counterproductive (for instance if the training does not at all correspond to the level and interest of the individual, and/or is compulsory to receive benefits). Similarly, at country level, financial assistance is a crucial part of the solidarity settlement, but from a dignity and freedom perspective it may not be used to completely disempower (and punish) the recipient country, as for instance happened with the programme countries during the Euro-crisis in an offence to their collective dignity.

Further potential lies in teasing out a dialectic relationship between the two values that are perhaps not natural allies: freedom and solidarity. We already indicated that solidarity should respect – and ideally bolster – freedom, but the same applies the other way around. The implications thereof are intuitive and perhaps not surprising: it means that economic freedoms should be read in a way that respects and bolsters solidarity, and not to undermine or dismantle it. This exposes the value problem in the well-known case law prioritizing (and fundamentalizing) corporations’ economic rights (derived by the Court from Article 16 EU Charter on the freedom to conduct a business, and the freedom of establishment to provide services in the internal market) over fundamental social rights, such as to take collective action to be protected against unjust dismissal, in cases such as Viking, Laval, AGET and Alemo-Herron. ¹³⁴ Freedom would have to be informed by solidarity, which could have led to fundamentally different outcomes in each of these cases. For although the Court insists that it fairly balances the various rights and interests concerned, it is clear that priority is given to the economic freedom of companies, while significantly constraining the solidarity among workers. Such an approach would have benefited not just the Swedish workers in Laval, the Finnish workers in Viking, the Greek workers in AGET or the UK workers in Alemo-Herron, it would have benefited all workers in general. It would have required economic power to recognize its limits in the fundamental social rights that serve as important constitutional bulwarks against the entrenchment of socio-economic asymmetries that lurk in free markets.