Solidarity—A New Constitutional Paradigm for the EU?

Solidarity and Trust in the Common European Asylum System

“…Solidarity is thus premised upon inter-state cooperation in a system which arguably reflects the broader principle of loyal cooperation under EU law (McDonough and Tsourdi, 2012a). Solidarity is also securitised: as with other areas of European Union law, solidarity in European asylum law reflects a crisis mentality (Borgmann-Prebil and Ross, 2010) and has led to the concept being used with the aim of alleviating perceived urgent pressures on Member States. This view of solidarity as an emergency management tool is found elsewhere in the Treaty, in the solidarity clause established in Article 222 TFEU according to which the Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural man-made disaster.…”

“…Article 80 TFEU introduces the principle of solidarity and fair sharing of responsibility with regard to EU border, immigration and asylum policies and their implementation and states that whenever necessary, Union law in the fijield shall contain appropriate measures to give efffect to this principle. As it has been noted, the principle of solidarity in Article 80 TFEU can act as an interpretative guide for the Court of Justice (Ross 2010), in particular when dealing with questions related to European asylum law (McDonough and Tsourdi 2012b). In interpreting European asylum law in the light of solidarity, the Court will have to introduce a paradigm change: it will have to depart from a state-centered, securitised and exclusionary concept of solidarity and underpin the principle of solidarity with the obligation of the EU and its Member States to respect fundamental rights-in this manner, the principle of solidarity will be removed from its current exclusive focus on the state (and inter-state solidarity) and will also focus on solidarity towards the afffected individuals.…”

The EU after Lisbon

“…125 For the present purposes, it will suffice to go back to the 1969 Commission v France ruling (mentioned at the very beginning of this chapter), 124 Although the Energy Solidarity Clause is conceived in general terms, its insertion in primary law was emphatically advocated by a group of Member States in the aftermath of the energy crisis between Russia and Ukraine (Andoura (2013) (2005), Stjernø (2005), Ross (2010), and Boutayeb (2011). where the Luxembourg judges found that 'solidarity [. .…”

“…The ECJ acknowledged the possibility of derogating from free-movement rules based on public-health considerations and other mandatory requirements, such as the possible risk of seriously undermining a social security system's financial balance 48 and the maintenance of a balanced medical and hospital service open to all. 49 Allowing Member States to derogate from free movement rules for economic reasons represents an exception to traditional internal market approach and explains the presumption that in the absence of (strong) evidence indicating that 'the financial balance of the social security system would [otherwise] be seriously upset', restrictions to patient mobility, such as prior-authorization schemes, will 45 On the notion of solidarity in the European context, see Karagiannis (2007); Ross (2010); and, in this volume, Chap. 5, by Casolari.…”

The EU's Socio-Economic Model(s) and the Crisi(e)s Any Perspectives?

“…(Schiek, 2012: 230-32) In spite of all this, optimist alternatives are possible and have been developed. For example, the decreasing capacity of Member States to guarantee the preconditions of national welfare has been identified as a viable driver towards a new social contract at EU level (Poiares Maduro, 2000); a new constitutional principle of solidarity has been devised as a lever to overcome tensions between competiveness and national welfare state principles (Ross, 2010); and nesting of national welfare states in a European framework has been proposed as a strategy to overcome national closure (Ferrera, 2012). Positive visions of a new dynamic of EU social policy were also inspired by the initial Lisbon strategy, which endeavoured to coordinate national social policies.…”