From worker to self‐entrepreneur: The transformation of homo economicus and the freedom of movement in the European Union

• Date: 01 July 2017
• Author: Dion Kramer
• Published date: 01 July 2017
• DOI: http://doi.org/10.1111/eulj.12254

ORIGINAL MANUSCRIPT

From worker to self‐entrepreneur: The

transformation of homo economicus and the

freedom of movement in the European Union

Dion Kramer*

Abstract

This paper seeks to make a contribution to the study of personhood in EU free movement law by linking a

historical and doctrinal analysis with the internal transformation of the homo economicus in economic liberalism.

It is argued that a shift can be observed in the government of mobility from “freeing up”the ability of the worker

as a relatively passive subject tied to external economic mechanisms to the targeting of the individual him/herself

as a responsible, active bearer of economic capability or “human capital”, wherebypast socio‐economic conduct

and prospective economic activity serve as the thresholds for the entitlement to rights. The essence of the

“new”homo economicus of EU free movement law is situated at the intersection of the social and economic,

serving as a rational frame for the government of the European mover on the basis of a mutual responsibility

between the Union citizen and his/her host Member State towards social and economic activity, self‐sufficiency

and integration.

1|INTRODUCTION

Since its inception during the 1950s, the project of European integration has worked as a great liberator of cross‐bor-

der human movement. While initially connected to various categories of economic activity, subsequent legislative

effort, the establishment of Union citizenship in particular, and progressive case law of the European Court of Justice

(ECJ) have significantly broadened the personal and material scope of free movement rights. Whereas scholarly con-

sensus seems to exist over the fact that early European integration created the legal personality of a “market citizen”,

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intellectual disagreement prevailed over the extent to which “market citizenship”has moved and should move

towards a “real”or “substantial”Union citizenship, even before the Dano turn.

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In an attempt to contribute to recent

*

PhD Candidate at the Department of Transnational Legal Studies, Vrije Universiteit Amsterdam. I am grateful to Annette Schrauwen,

Tanja Aalberts, Jessica Lawrence, Bertjan Wolthuis, two anonymous reviewers and the editor of the journal for engaging and some-

times challenging comments on earlier drafts of the article. Errors, however, are my own. Earlier drafts were presented at the Bound-

aries of Law Research Seminar (Amsterdam, 24 June 2016) and the Critical Legal Conference (Kent, 3 September 2016).

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“Market citizenship”is presented as a “reduced functionalist concept of the individual [...] as a holder of economic freedoms, the judi-

cial enforcement of which serves to realise the Common market”or a “fragmented form of mercantile citizenship designed to facilitate

the European integration”. See, respectively, S. Kaldenbach, ‘Union Citizenship’(2003) 9/03 Jean Monnet Working Paper, 5 and T.

Kostakopoulou, ‘European Union Citizenship: Writing the Future’(2007) 13 European Law Journal, 623, 625.

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On the one hand, we find scholars who are optimistic as regards a progressive development towards ‘substantial’citizenship—for

example, see Kostakopoulou, above, n. 1. S. O'Leary, ‘Putting Flesh on the Bones of European Union Citizenship’(1999) 24 European

Received: 5 November 2015 Revised: 8 September 2016 Accepted: 25 July 2017

DOI: 10.1111/eulj.12254

172 © 2017 John Wiley & Sons Ltd. Eur Law J. 2017;23:172–188.wileyonlinelibrary.com/journal/eulj

efforts that explore the construction of personhood and subjectivities in EU law,

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this article seeks to shed a different

light on this debate by focusing on the contingent and internal transformation of the homo economicus as the

anthropological foundation constituting the economic subject of EU free movement law. When treating the homo

economicus not as a constant, but as a dynamic concept which is subject to transformations in knowledge, economic

discourse in particular, one is able to shift the focus of the question.

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Instead of asking whether or not mobility rights

move away from their mobilisation of the market citizen as an actor in the European project, one can ask how its inter-

nally mutable subject, i.e. homo economicus, is reflected in the government of EU free movement.

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It will be argued that the economic personhood of the European mover that appears after the establishment of

Union citizenship and its progressive interpretation by the ECJ, no longer conforms to the homo economicus ascribed

to the early “market citizen”. Instead, it resonates much more strongly with the “new”homo economicus that was

constructed during a fundamental mutation in economic liberalism, i.e. with the shift from classical to neoliberal

economics. Briefly put, this entailed a shift in the government of EU free movement from “freeing up”the ability of

the worker as a relatively passive subject tied to external economic mechanisms to the targeting of the individual

him/herself as a responsible, active bearer of economic capability or “human capital”, whereby past socio‐economic

conduct and prospective economic activity serve as the thresholds for the entitlement to rights. This thesis does

not suggest, however, that EU free movement law has become entirely “neoliberal”or would not be driven by social

objectives, but merely that its economic rationality is increasingly based on a neoliberal anthropology of the human

being. Accordingly, the next section sets the stage by describing the transformation of the homo economicus in liberal

economics in connection to labour, mobility and welfare. Section 3 reveals an image of the mobile “worker”as the

partner of laissez‐faire in the establishment of the European Coal and Steel Community and the European Economic

Community. Arguing that the “new”homo economicus of EU free movement law becomes especially visible at the

intersection of mobility and the national welfare state, section 4 describes the progressive citizenship case law of

the ECJ with respect to employment, student and social assistance benefits.

2|MOBILITY, WELFARE AND THE (NEO)LIBERAL SUBJECT OF

GOVERNMENT

Before delving into (the history of) EU law in the next sections, this section first succinctly sketches the broader trans-

formation of the homo economicus in liberal government. After discussing the development of liberal economics in

Law Review, 68 and F. Wollenschläger, ‘A New Fundamental Freedom beyond Market Integration: Union Citizenship and its Dynamics

for Shifting the Economic Paradigm of European Integration’(2011) 17 European Law Journal, 1. On the other hand, we find scholars

who observe a continuance of the market citizen—for example, M. Everson, ‘The Legacy of the Market Citizen’, in J. Shaw and G. More

(eds.), New Legal Dynamics of European Union (Clarendon Press, 1995) 73; N. Shuibhne, ‘The Resilience of EU Market Citizenship’

(2010) 47 Common Market Law Review, 1597; M. Everson, ‘European Citizenship and the Disillusion of the Common Man’, in R. Nickel

(ed.), Conflict of Laws and Laws of Conflict in Europe and Beyond (Center for European Studies, University of Oslo, 2009), Arena Report

1/09; and C. O'Brien, ‘I Trade, Therefore I Am: Legal Personhoods in the European Union’(2013) 50 Common Market Law Review,

1643. For one critical review—amongst many—of the post‐Dano case law, C. O'Brien, ‘Civis Capitalist Sum: Class as the New Guiding

Principle of EU Free Movement Rights’(2016) 53 Common Market Law Review, 937.

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See the various contributions in L. Azoulai, S. Barbou des Places and E. Pataut (eds.), Const ructing the Person in EU Law: Rights, Roles,

Identities (Hart Publishing, 2016). P. Neuvonen, Equal Citizenship and Its Limits in EU Law: We The Burden? (Hart Publishing, 2016).

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Most contributions present the homo economicus as a constant. A result of this conception is that the development of Union citizen-

ship is analysed as either a “move away from”or a continuance of the “market citizen”, thereby neglecting the possibility that its active

part, i.e. the homo economicus, is a mutable and contingent construct qua subject of government, hence bearing the potential to recon-

stitute the “market citizen”.

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This approach distinguishes this article from, for example, the recently published contribution by Sankaari and Frerichs in this journal,

who trace the evolutionary path of free movement through the lens of commodification, decommodification and recommodificati on.

S. Sankaari and S. Frerichs, ‘From Resource to Burden: Rescaling Solidarity with Strangers in the Single Market’(2016) 22 European

Law Journal, 806.

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