In this article,our focus is on the free movement of persons, whichcan be understood in
terms of the ‘transnationalisation’of solidarity. The speciﬁctypeofsolidaritythatweare
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 ﬁrst efforts at removing obstacles to them, EU law has modiﬁed the
rules of membershipin national social systems, which grant access to organised solidarity
and which deﬁne who owes what to whom. Our aim is to clarif y the conditions of this
transnational ‘solidarity with strangers’and its implications for national welfare systems.
Proceeding from a sociolo gical framework, the articl e ﬁrst 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 ‘commodiﬁcation’or
‘decommodiﬁcation’of 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-actives’has 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 ‘Europeanisation’of 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 ‘negative’integration, that is,
through economic freedoms and accessory social rights, due to lack of competence for
‘positive’integration 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), 157–180,at 166. Barnard speaksof transnational solidarityonly
withregard to ‘medium-termresidents’, whereaswe include ‘long-term residents’and ‘new arrivals’as 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), 166–188, at 176.
On the Europeanlevel, Treaty-deﬁned aspects of social policy fall within shared competence (Art. 4 TFEU).
Since theMaastricht Treaty (1992),EU social policy provisionsspeciﬁcally ‘shall not affect theright of Mem-
ber Statesto deﬁne the fundamentalprinciples of theirsocial security systemsand must not signiﬁcantlyaffect
the ﬁnancialequilibrium 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 ﬁnancialstructure, or wouldaffect the ﬁnancial
balance of thatsystem’(Art. 48(2) TFEU).
European Law Journal Volume 22