Free Movement of Persons and European Solidarity1

• Author: Stefano Giubboni
• Published date: 01 May 2007
• Date: 01 May 2007
• DOI: http://doi.org/10.1111/j.1468-0386.2007.00370.x

Free Movement of Persons and

European Solidarity1

Stefano Giubboni*

Abstract: This article explores the tension between freedom of movement within the

EC/EU and the principle of social solidarity, a tension which has increased in step with the

progressive enlargement over the years of the circle of potential beneficiaries of the right

to cross-border access to the social and welfare benefits guaranteed by the social pro-

tection systems of the Member States. The article aims to re-construct the system of

Community rules regarding the free movement of persons within the EU from the point of

view of the justifying criteria for the cross-border access to national welfare systems of the

different categories of ‘migrants’. The focus of the article is on the different degrees and

models of solidarity which, at least at the present stage of the European integration

process, justify correspondingly graduated and differentiated forms of cross-border access

to Member States’ social and welfare benefits for the various categories of persons who

move about within the EU.

‘And none is more certain than the prohibition against attempts on the part of any single State to isolate

itself from difficulties common to all of them by restraining the transportation of persons and property

acrossitsborders...TheConstitution was framed...uponthetheory that the people of the several

States must sink or swim together, and that in the long run prosperity and salvation are in union and not

in division.’2

I Introduction

There is an innate, one might say constitutive, ‘tension’ between freedom of movement

within the European Community/Union and the principle of solidarity, a tension which

has increased in step with the progressive enlargement over the years—to the point of

becoming almost generalised—of the circle of potential beneficiaries of the (associated)

right to cross-border access to the social benefits guaranteed by the respective national

welfare systems (see, more recently, van der Mei, 2003, p. 1 ff.). And that tension, which

has been present from the start, reaches its absolutely highest point in face of the

prospect of complete ‘universalisation’ of the right to move freely within the Union.

For it is unquestionable that the tendency towards extending such a freedom to ‘all’

poses a real ‘challenge’—as stated in the title of this conference—for social security

1Paper presented to the international conference Free Movement for All—A Challenge for Social Security,

Stockholm, 15–16 June 2006.

* PhD at the European University Institute; Professor of Labour Law at the University of Florence, Faculty

of Law.

2US Supreme Court, Edwards v California 314 US 160 (1941), at 174.

European Law Journal, Vol. 13, No. 3, May 2007, pp. 360–379.

© 2007 The Author

Journal compilation © 2007 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

systems; which is to say, a challenge to the very notion of European solidarity, to its

‘intensity’ and to the forms in which it is realised within the Community legal order.

What is more, it is not by chance that this tension features to an ever-increasing

degree in the delicate and complex ‘balancing of interests’ operations that the Court of

Justice of the European Communities is called upon to carry out in this respect (see

Mather, 2005, p. 330). Hence, following a close examination of the latest developments

in Community case-law on cross-border access to social rights in the European Union

Siofra O’Leary had all good reason to emphasise the existence of an ‘increased tension

between migration in the EC and the protected sphere of national citizenship’

(O’Leary, 2005, p. 59), coupled with an increasingly pronounced reduction of the

sphere of ‘social sovereignty’ reserved to the Member States (for this terminology, and

on these topics, see in particular Ferrera, 2000; Ferrera, 2005; and, earlier, Leibfried

and Pierson, 1995).

From the very start, the founding treaties have ensured workers (initially only

employees) who ‘migrate’ within the Community a sound network of social guarantees,

on the presumption that equality of access to the social rights recognised by the

respective national welfare systems constituted an essential precondition for the very

exercise of freedom of movement in the context of the common market. Even Article 69

of the Treaty establishing the European Coal and Steel Community already sought, in

its paragraph (4), to establish embryonic guarantees in this direction by, in particular,

obliging Member States to endeavour ‘to settle among themselves any matters remain-

ing to be dealt with in order to ensure that social security arrangements do not inhibit

labour mobility’. But it is with the Treaty of Rome that these principles are set out in

their full significance, albeit initially only in favour of employees and members of their

families, and also with detailed specification of the normative techniques best suited to

the purpose, starting from that focused on coordination of the diverse national legis-

lation on social security, which in the Community context already reaches, at a stroke,

its highest levels of development and ‘sophistication’ with Regulation 3/583(see

ex multis Watson, 1980; Cornelissen, 1996; Pennings, 2003; Cinelli, 2005). The principle

of equality of treatment among Community workers as regards access to employment

and conditions of work and employment (Article 39, formerly 48, of the EC Treaty (the

Treaty)) and also social security protection (Article 42, formerly 51, of the Treaty), with

the attendant tendency towards the de-territorialisation of social security systems

brought about by supranational rules on coordination (Martinsen, 2005), has therefore

represented a favoured vehicle for the construction of a genuinely European dimension

of social solidarity, in that it has opened up to beneficiaries of the relative freedom of

movement almost full access to ‘social citizenship’ rights (Marshall, 1992) as defined by

the Member States of the Community (Ball, 1996; Giubboni, 1998).

There is thus an innate, indeed ‘constitutive’, link between recognition of the right to

move freely within the Community and the opening up of national social protection

systems to ‘migrant’ citizens of other Member States. In this sense, the affirmation of a

principle of freedom of movement for persons—even if it is confined to workers or at

any rate economically active persons, who as such participate in market processes—

always necessitates some measure of commonality of the forms and mechanisms of

solidarity in which national welfare state systems find their substance. It always

demands some kind of exercise of ‘solidarity among strangers’, to borrow the

3Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers

[1958] OJ L30/561.

May 2007 Free Movement of Persons

© 2007 The Author 361

Journal compilation © 2007 Blackwell Publishing Ltd.