From Resource to Burden: Rescaling Solidarity with Strangers in the Single Market

Published date01 November 2016
Date01 November 2016
From Resource to Burden: Rescaling
Solidarity with Strangers in the Single
Suvi Sankari* and Sabine Frerichs**
Abstract: Organised solidarityof a mediated legal form constitutes the backbone of the
modern welfare statebuilt on solidarity between strangers.The interplay between the single
market and the national social systems is key in dening who owes what to whom under the
transnationalisedEuropean solidarity. Free movement rights have increased the
entanglementof national social systemsrevenue and expenditure sides, considered to
jeopardise their steering capacity. As a corollary to free movement, transnational solidarity
does not take placebeyond or between national welfarestates, but rather within: as solidarity
with strangers. Heretransnational solidarity is applied by way of a sociological framework
to trace the evolutionary path of free movement of persons as it uctuates between
commodicationand decommodication . Against that backdrop, this article reviews
whether a paradigm shift is currently promoted as to the question where solidarity with
strangers begins and ends.
I Introduction
The principles of the single market superseded the institutional compromise between
capitaland labour, which was constitutive for the development of welfare capital-
ism in the postwar era. By furthering the mobility of the production factors of
capital and labour, economic freedoms also changed the balance of power between
more or less mobile social groups.
Free movement rights have increased the
entanglementof national social systems and may eventually put in jeopardy their
steering capacity. Whereas the free movement of capital may restrict the scal sover-
eignty of the Member States, or their control of the revenue side, the free movement
of persons may compromise the nancial sustainability of welfare systems, or control
of the expenditure side. In both areas of law, the question is thus under what
conditions Member States may invoke economic reasons to restrict individual rights
to free movement.
* Postdoctoral Researcher and member of European Bonds: The Moral Economy of Debtresearch project,
both funded by theAcademy of Finland, at Facultyof Law, University of Helsinki.
** Professor of EconomicSociology, Vienna University of Economicsand Business, Austria.
W. Streeck, Industrielle Beziehungen in einerinternationalisierten Wirtschaft,in S. Leibfried (ed.), Standort
Europa: Sozialpolitik zwisch en Nationalstaat und europäischer Integration (Suhr kamp, 1998), 169202, at
J. Snell, Free Movement of Capital:Evolution as a Non-Linear Process, in P. Craig andG. de Búrca (eds.),
Evolutionof EU Law (Oxford UniversityPress, 2nd edn, 2011), 547574, at 574.
European La w Journal, Vol. 22, No. 6 , November 2016, pp. 8 06821.
© 2017 John Wiley & SonsLtd. 9600 Garsington Road, Oxford,OX4 2DQ, UK
and 350 Main Street, Malden,MA 02148, USA
In this article,our focus is on the free movement of persons, whichcan be understood in
terms of the transnationalisationof solidarity. The specictypeofsolidaritythatweare
concerned with is solidarity between nationals and migrants,
or between static national
citizens and mobile EU citizens. Since t he introduction of free movement of fact ors of
production, and the rst efforts at removing obstacles to them, EU law has modied the
rules of membershipin national social systems, which grant access to organised solidarity
and which dene who owes what to whom. Our aim is to clarif y the conditions of this
transnational solidarity with strangersand its implications for national welfare systems.
Proceeding from a sociolo gical framework, the articl e rst outlines the concept of
transnational solida rity, which guides our anal ysis. This is followed by an overview
of the development of EU c itizenship law in terms of the commodicationor
decommodicationof free movemen t rights. Next, we turn to an anal ysis of the
economic arguments that have been put forward in favour of or against the expansion
of free movement rightswith regard to workers and so-called economically non-actives.
Finally, we speculate on the future developmentof this area of law. It is suggested that the
debate precedingand following the Brexitreferendum may promote a paradigmshift with
regard to the rights of worke rs, for which economic reas oning limiting the rights o f
non-activeshas paved the way.
II The Free Movement of Persons as Transnationa l Solidarity with Strangers
The subject matter of this article is the transforma tion of organised solidarity,which
forms the backboneof the modern welfare state and takes a mediated, legal form. Hence,
we are less interested in the evolutionof feelings of solidarity, whichare often the product,
rather than the precondition, of organised solidarity,
than in the development o f
individual rights and duties as they are posited in laws and regulations.
The Europeanisationof w elfare capitalism entai ls, at least in tendency , a
transformation of solidarity from national to transnational rights and duties. This
transnationalisation of solidarity mainly proceeds through negativeintegration, that is,
through economic freedoms and accessory social rights, due to lack of competence for
positiveintegration through EU-level social policies.
Cf. C. Barnard,EU Citizenship and the Pri nciple of Solidarity, in M.Dougan and E. Spaventa (eds.),Social
Welfareand EU Law (Hart Publishing,2005), 157180,at 166. Barnard speaksof transnational solidarityonly
withregard to medium-termresidents, whereaswe include long-term residentsand new arrivalsas we ll.Cf .
See Art. 7 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right
of citizens of the Union and their family members to move and reside freely within the territory of the Member
States amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/
194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158,
30.4.2004, 77, and corrigenda at OJ L 229, 29.6.2004, 35 OJ L030, 3.2.2005, 27 and OJ L 197, 28.7.2005, 34).
S. Börner, From Nationalto European Solidarity? The Negotiationof Redistributive Spaces,inS.Börner
and M. Eigmüller (eds.), European Integration,Processes of Change and the National Experience (Palgrave
Macmillan,2015), 166188, at 176.
On the Europeanlevel, Treaty-dened aspects of social policy fall within shared competence (Art. 4 TFEU).
Since theMaastricht Treaty (1992),EU social policy provisionsspecically shall not affect theright of Mem-
ber Statesto dene the fundamentalprinciples of theirsocial security systemsand must not signicantlyaffect
the nancialequilibrium thereof(Art. 153(4) TFEU). The Lisbon Treaty (2007) made an emergency brake
availablefor Member States should a proposedEU measure on social securityfor workers affect important
aspectsof its social securitysystem, includingits scope, cost or nancialstructure, or wouldaffect the nancial
balance of thatsystem(Art. 48(2) TFEU).
European Law Journal Volume 22
©2017JohnWiley&SonsLtd. 807

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