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

• DOI: http://doi.org/10.1111/eulj.12214
• Published date: 01 November 2016
• Date: 01 November 2016

From Resource to Burden: Rescaling

Solidarity with Strangers in the Single

Market

Suvi Sankari* and Sabine Frerichs**

Abstract: ‘Organised solidarity’of 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 defining who owes what to whom under the

‘transnationalised’European solidarity. Free movement rights have increased the

‘entanglement’of national social systems’revenue 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 fluctuates between

‘commodification’and ‘decommodification ’. 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The principles of the single market superseded the institutional compromise between

‘capital’and ‘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.

1

Free movement rights have increased the

‘entanglement’of national social systems and may eventually put in jeopardy their

steering capacity. Whereas the free movement of capital may restrict the fiscal sover-

eignty of the Member States, or their control of the revenue side, the free movement

of persons may compromise the financial 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.

2

* Postdoctoral Researcher and member of ‘European Bonds: The Moral Economy of Debt’research project,

both funded by theAcademy of Finland, at Facultyof Law, University of Helsinki.

** Professor of EconomicSociology, Vienna University of Economicsand Business, Austria.

1

W. Streeck, ‘Industrielle Beziehungen in einerinternationalisierten Wirtschaft’,in S. Leibfried (ed.), Standort

Europa: Sozialpolitik zwisch en Nationalstaat und europäischer Integration (Suhr kamp, 1998), 169–202, at

177–178.

2

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), 547–574, at 574.

European La w Journal, Vol. 22, No. 6 , November 2016, pp. 8 06–821.

© 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 ‘transnationalisation’of solidarity. The specifictypeofsolidaritythatweare

concerned with is ‘solidarity between nationals and migrants’,

3

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’.

4

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,

5

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.

6

3

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 .

ibid.,at166–175.

4

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).

5

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.

6

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).

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