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Journal of European Integration

ISSN: 0703-6337 (Print) 1477-2280 (Online) Journal homepage: http://www.tandfonline.com/loi/geui20

The Three Dimensions of Solidarity in the EU Legal


Order: Limits of the Judicial and Legal Approach

Irina Domurath

To cite this article: Irina Domurath (2013) The Three Dimensions of Solidarity in the EU
Legal Order: Limits of the Judicial and Legal Approach, Journal of European Integration, 35:4,
459-475, DOI: 10.1080/07036337.2012.704630

To link to this article: http://dx.doi.org/10.1080/07036337.2012.704630

Published online: 03 Aug 2012.

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European Integration, 2013
Vol. 35, No. 4, 459–475, http://dx.doi.org/10.1080/07036337.2012.704630

ARTICLE

The Three Dimensions of Solidarity


in the EU Legal Order: Limits of the
Judicial and Legal Approach
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IRINA DOMURATH
Ph.D. student, Department of Law, University of Iceland, Reykjavı`k, Iceland

ABSTRACT Solidarity is an important idea behind European integration. The Lisbon


Treaty advanced the understanding of the concept by establishing three dimensions:
solidarity between member states, member states and individuals, and between gener-
ations. However, the knowledge about solidarity is incomplete and its conceptualiza-
tion in the EU legal order needs to be further developed. This article aims at
deepening the knowledge about solidarity in the EU by eliciting its rationales and
scope of application. It will be concluded that solidarity is developed to different
extent in different fields of law. It is most advanced in socio-economic law, but
underdeveloped in areas of law that are new to the EU legal order: solidarity in the
event of environmental disasters and solidarity with future generations. Reasons for
the different depths of solidarity will be elicited, as well as possible means to over-
come inhibitors to transnational solidarity.

KEY WORDS: EU law; solidarity; environmental law; sustainable development

A European Understanding of Solidarity


Since the Second World War, the idea of solidarity has been an impor-
tant motivation for peaceful cooperation between European countries
(Ménendez 2003, 374–98, 374; further reference: Barnard 2005a, 157–
80, 157 et subs). Now, solidarity is a founding value of the EU, Article
2 TEU, and many provisions in the TEU refer to solidarity between
member states and their peoples, for example Articles 1(3), 3 (3), 24 (2)
and (3), 31 (1) TEU. Most recently, the pressure on the Euro in the
aftermath of the financial crisis has brought solidarity between the mem-
ber states into focus.

Correspondence Address: Irina Domurath, University of Iceland, Saemundargata 2, 101


Reykjavik, Iceland. Email: irina.domurath@gmail.com

Ó 2012 Taylor & Francis


460 I. Domurath

The Lisbon Treaty has advanced the legal construction of the concept
by completing a three-dimensional understanding of solidarity: solidarity
between member states, between member states and individuals, and
now also between generations (Article 3 (3) TEU). Moreover, the Treaty
has made the 2000 Charter of Fundamental Rights part of primary law,
Article 6 (1) TEU. The Charter contains a ‘Solidarity’ chapter, dealing
with, for example, the economic and social protection of the worker’s
family. This is especially significant for solidarity between member states
and individuals, as the Charter uses the concept to underpin the eco-
nomic internal market with a social dimension.
Despite the increasing importance given to solidarity in the EU, knowl-
edge about the concept is incomplete. Solidarity is not defined in European
legislation and the concept is underdeveloped. Moreover, there is a research
gap in academic literature as regards the holistic analysis of the different
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dimensions of solidarity. The author will attempt to close the research gap
and deepen the knowledge about solidarity in the EU legal order by inferring
an understanding of solidarity from linguistic and sociological sources and
then applying it in different legal contexts. It will be analysed how the con-
cept is advanced in socio-economic law and to what extent this approach
translates to other fields of law. In this way, the author can extend findings
from the socio-economic field, where solidarity is most pronounced, to soli-
darity-provisions that have been introduced to the EU legal order with the
Lisbon Treaty: solidarity with regard to environmental disasters, Article 222
TFEU, and solidarity with future generations, Article 3 (3) TEU.

An Attempt at Defining Solidarity


Most approaches to solidarity share the idea of a certain social consensus
based on the affiliation of ‘like’ or ‘same’ individuals to a group and the
equality of group members. In the Oxford Dictionary solidarity is defined
as: ‘Unity or agreement of feeling or action, especially among individuals
with a common interest; mutual support within a group’ (http://oxforddic-
tionaries.com).
According to this definition, solidarity is based on the sameness of individ-
uals who share a common interest. Individuals identify themselves with oth-
ers and are bound together by a feeling of community. Within such a
community, individuals are regarded as equals, which allows them to receive
mutual support when needed. Hence, solidarity can also include a notion of
reciprocal responsibility or obligation (ibid., 27–8, also Somek 2007, 1–59,
42) or, more abstractly, be concerned with the (moral) bases of cooperation
in a communal society (see Rehg 1994, 2 et subs). Based on this understand-
ing, Stjernø sees solidarity reflected in the preparedness to share resources
with (same) others, the readiness for collective action and a will to institu-
tionalize it through the establishment of rights and citizenship (Stjernø
2005, 326).
This understanding of solidarity between individuals must be broadened
when applied in EU context, as the EU is a sociologically heterogeneous
construction based on diversity and legal plurality. The different dimen-
sions of solidarity between states, states and individuals, and generations
Three Dimensions of Solidarity 461

challenge sameness as the basis of solidarity in the EU. In fact, it could be


argued that solidarity in the EU is based on the acceptance of differences
(Ross 2010, 31), which requires potent actors with an enlightened self-
interest (Stjernø 2005, 201). In this regard, Durkheim distinguishes
between organic and mechanic solidarity. He contends that mechanic soli-
darity derives from the likeness of people in homogeneous societies,
whereas organic solidarity occurs in heterogeneous societies, in which dif-
ferent organs have special roles and are coordinated and subordinated one
to another (Durkheim 1893, xxvi). Durkheim also claims that mechanic
solidarity prevails over organic solidarity. This implies that likeness is a
stronger basis for solidarity than diversity or the acceptance of differences.
This observation implies a tension between national (mechanic) and trans-
national (organic) solidarity on the European plane.
The author infers the following definition of solidarity for the analysis
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in this contribution: solidarity means reciprocal support and cooperation


within a community of interest which can be based on sameness within
homogenous societies or the acceptance of differences in heterogeneous
societies. In what follows, the different extents of solidarity in different
dimensions and fields of law will be examined, depending on what it is
based upon. We will see that solidarity is more developed when it is sup-
ported through individual rights. This approach exhibits limitations, espe-
cially in fields of law in which there is no reciprocal relationship between
humans as concerning environmental and inter-generational solidarity. In
the end, the author will argue for a clearer use of solidarity as a value
underlying policy strategies and legal instruments.

Solidarity in ‘Classical’ EU Law: A Judicial Approach Based on EU


Citizenship Rights
Solidarity with individuals is more developed than other dimensions of sol-
idarity because of its connection with the socio-economic law of the inter-
nal market, the most prominent raison d’être of the EU, and the activism
of the Court of Justice of the European Union (ECJ). Solidarity with indi-
viduals is based on the sameness of individuals and enforceable citizenship
rights.
The ECJ has promoted solidarity with individuals pro-actively by grant-
ing incremental or ‘quantitative’ (Barnard 2005b, 1478) access to national
social security based on the right to equal treatment and non-discrimina-
tion. The ECJ has used the proportionality principle to interpret social sol-
idarity in a way to comprise the provision of assistance to those who are
in need, however within the limits imposed by available resources (Sode-
mare C-70/95, paragraph 29).1 In particular, it has balanced the interests
in national and transnational solidarity by extending national solidarity to
non-national EU citizens depending on the time spent in the host member
state – indicative of the degree of integration into the national society –
and being limited by the requirement to not impose an unreasonable finan-
cial burden on the host society.
In Martinez Sala (C-85/96), the ECJ considered 25 years lawful residence
proof of full assimilation into the society, so that the right to equal treat-
462 I. Domurath

ment with host member state nationals concerning access to social benefits
was granted irrespective of the financial situation of the non-national (fur-
ther reference Craig and De Búrca 2008, 850; Giubboni 2010, 171–2;
Trojani C-456/02, Paragraph 43). In Grzelczyk (C-184/99), a ‘certain finan-
cial solidarity’ had developed due to a ‘certain’ degree of integration into
the host society after three years of residence, but was restricted by the
requirement to not become an unreasonable burden on the national society
(also Bidar C-209/03, paragraph 60). Concerning individuals who have just
arrived, the member state can impose further requirements before granting
access to social security schemes (Collins C-138/02, paragraphs 67, 70, 73).
The approach of taking as a basis the degree of integration into the host
member state has been incorporated into Directive 2004/38 on the right of
citizens of the Union and their family members to move and reside freely
within the territory of the member states, see for example Article 24 (2) (fur-
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ther reference Barnard 2005b, 1465–89, 1480; Somek 2007, 8 et subs.; con-
cerning the tension of the ECJ’s approach with Directive 2004/38/EC,
Giubboni 2010, 166–97, 187).
The ECJ has developed this rights-based approach by using fundamental
EU citizenship rights to depart from the economic paradigm of the internal
market and underpin it with a social dimension and, thus, projecting
social solidarity beyond the traditional beneficiaries of the economic free-
doms (Mazák 2008, paragraph 54; also Sharpston 2010, paragraphs 77 et
subs.; see Barnard 2010, 73–05, 74, with further reference to Davies
2010, 106–21, 118–9; also Ross 2010, 23–45, 31).2 Taking into account
the rights to social assistance of non-economically active persons and the
protection of the worker’s family in Articles 33, 34 of the Charter of Fun-
damental Rights – even before it became primary law – the ECJ has
extended the concept of financial solidarity to non-economically active
individuals such as the unemployed, family members, and students. In this
way, European citizenship is in itself a mirror of solidarity. It brought
about the understanding that the right to access solidarity welfare schemes
is bestowed upon citizens directly by virtue of their status as a citizen of
the Union (Baumbast C-413/99, paragraph 84; Mazák 2008, paragraphs
54, 55; Zambrano C-34/09, paragraphs 43–4; further reference Ferrera
2005, 136). Citizens are not ‘resources’ employed to produce goods and
services on the internal market, but individuals bound to a political com-
munity and protected by fundamental rights (Sharpston 2010, paragraph
127, see also Somek 2007, 7–8).

Limits of the Judicial Approach


Some have argued that the ECJ has developed a new transnational solidar-
ity by extending social welfare rights beyond those who participate in the
market process (so Giubboni 2010, 190–1). Giubboni reworks Durkheim’s
terms stating that ‘mechanic’ solidarity exists among economically active
citizens and ‘organic’ solidarity between economically active and non-eco-
nomically active individuals, irrespective of their nationality. However, the
author would like to put forward for consideration that both Giubboni’s
mechanic and organic solidarity occur only on a national level and after
Three Dimensions of Solidarity 463

the individual has shown a certain degree of integration into the host soci-
ety (and does not constitute an unreasonable financial burden). Reflecting
the proportionality principle, financial responsibility of the host society is
only assumed after the individual has ‘sufficiently’ integrated into the
national community. Non-nationals acquire the right to access the
national welfare system by becoming a member of the national community
of interests. Thus, national solidarity is extended to non-nationals based
on ‘acquired sameness’. Or, in the words of Somek (2007, 12, 32–6): at
the transnational level national solidarity is re-introduced ‘through the
backdoor’, which – he contends - leaves the solidarity underpinning EU
citizenship at an indeterminate state.
Giubboni recognizes this as limitations, but it could also be regarded as
inhibitors to transnational solidarity and as an affirmation of the preva-
lence of national solidarity as contended by Durkheim. Financial solidarity
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is based on the sameness of old and new members of the national benefi-
ciary group. This sameness is proven by the time spent in member state.3
This also means that reciprocity – individuals supporting another individ-
ual under the premise that the latter is ready to follow suit at a later point
in time – is only assumed among ‘same’ individuals within one national
territory. The author is, therefore, inclined to contend that Durkheim’s
understanding of mechanic solidarity in homogeneous societies and its
prevalence over organic solidarity in heterogeneous societies is still valid.
Despite the ECJ’s proactive approach, a genuinely transnational, European
solidarity has not yet developed.
Moreover, when approached from the viewpoint of the individual, soli-
darity contradicts its inherent collective dimension. This has been the case in
Viking (C-438/05) and Laval (C-341/05), in which the right to collective
European action was restricted by the exercise of market freedoms. Therein,
despite its inclination towards transnational solidarity, the ECJ did not rec-
ognize the potential of a social solidarity which originates from collective
action at European level (also Giubboni 2010, 195). This mirrors the limita-
tions social solidary rights still face vis-à-vis the economic goal of the func-
tioning of the internal market.4
Considering these limits of the judicial rights-based approach, it is
questionable whether the ECJ is the appropriate forum for advancing
solidarity.5 The ECJ’s proactivity is compensating for the problems aris-
ing from the legal diversity in national social law, but it cannot replace
the sociological ties that would have to form the premise of a solidary
social policy on EU level. The EU does not possess those ties necessary
to provide for solidary welfare services (Davies 2010, 120). And by using
their competence to reserve national social solidarity for own citizens
(see Barnard 2006, 153; Dougan 2005, 181), and engaging in constitu-
tional protectionism with regard to residency rules and shielding from
EU competence (Ferrera 2005, 163), the member states have shown
reserve with regard to the limits, or limitlessness, of European integra-
tion. It has, in fact, been asked to what extent a truly solidary, civic
society across Europe is actually possible (see Habermas 2008, 92; also
Michalski 2006; Bruter 2005).
464 I. Domurath

Transnational Cooperation Between Member States: Solidarity in


Environmental Law
Solidarity among member states first appeared in harmonized fields of EU
law, such as the iron and steel sector in the 1970s, and subsequently agri-
culture, fisheries, and transport (Barnard 2010, 75). In these fields of law
member states cannot exempt themselves from common rules, as this
would undermine the solidary rationale on which harmonization is based
(Dairy Sector C-203/86, paragraphs 22, 24). In exchange for the trust that
member states invest in the EU institutions through the pre-emption of
their competences, they are treated equally with regard to their rights and
obligations.
In not fully harmonized fields of law, inter-state solidarity is often
expressed through transnational cooperation between the member states,
such as in environmental law and disaster management. But the author
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will show that environmental solidarity is underdeveloped, because mem-


ber states do not agree on the extent of their solidary obligations to coop-
erate. In a nutshell, the analysis of environmental disaster management
law demonstrates that the acceptance of differences between the member
states is a weaker basis for transnational solidarity than sameness, because
it lacks the rationale of reciprocity.

An Understanding of European Environmental Solidarity


In the EU, environmental solidarity is reflected in a shared or common
interest in environmental protection and the need for transnational cooper-
ation. It is apparent in the ‘common heritage’ of bird species (Preamble (3)
Directive 2009/147/EC), the role of the member states as the guardians of
the EU’s natural heritage (De Sadeeler 2005, 218, concerning Directive
92/43/EEC), and the coordination of environmental protection of trans-
boundary waters (Preamble (35) Directive 2000/60/EC). Environmental
solidarity can also involve the obligation not to cause harm to the territory
of another state, for example through pollution beyond national borders
(Hilson 2010, 136). This idea is also mirrored in the principle of proxim-
ity of waste disposal and self-sufficiency of the regions in handling their
wastes, Article 5 (1) Directive 2006/12/EC, (see Dusseldorp C-203/96,
paragraphs 30, 33).
Explicit reference to solidarity is made in EU legislation on air pollution
and environmental disasters. Here, solidarity is the basis for the redistribu-
tion of financial resources, acknowledging economic differences and the
need to support disadvantaged member states. With the Burden-Sharing
Agreement, the European countries agree to achieve their commitments
under Article 3 (1) Kyoto Protocol to the UN Framework Convention on
Climate Change jointly, Article 2 Decision 2002/358/EC. Based upon the
‘principle of solidarity’ between the member states and the need for sus-
tainable economic growth, the Effort Sharing Decision 2009/406/EC
imposes the obligation to also reduce other emissions taking into account
the different per capita GDP of the member states (Preamble (8) Decision
2009/406/EC).
Three Dimensions of Solidarity 465

Concerning environmental disasters, the new so-called Solidarity-


Clause in Article 222 TFEU states that the EU and its member states
shall act jointly in a ‘spirit of solidarity’ in case a member state is the
victim of an environmental disaster. Media attention and public expec-
tations put pressure on member states to provide help and show soli-
darity beyond national borders by appealing to the feelings of
compassion and moral responsibility. In the EU, such politically moti-
vated ad hoc solidarity in the event of an environmental disaster is
understood in terms of economic and financial equity and cohesion, for
example through the Solidarity Fund (Council Regulation 2002/2012),
which provides for financial assistance to affected member states. Here,
solidarity is not based on the sameness of member states concerning
environmental problems or a shared interest in environmental protec-
tion. It is precisely the recognition of differences between member states
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with regard to the environmental challenges they face that motivates


the basis for sharing financial resources.

The Lack of Solidarity-promoting Authority in Environmental Disaster


Management
Despite the potential of EU environmental legislation to provide for
solidarity, transnational environmental solidarity in the EU is underde-
veloped. Solidary obligations are not sufficiently established and accom-
panied by enforceable member states’ rights. This becomes apparent
even in environmental disaster management, where the rationale of sol-
idarity is very pronounced.
The author contends that one reason for the lack of solidarity among
the member states is precisely the fact that it is not based on a shared
identity, but on the acceptance of different member states’ vulnerability to
environmental problems. The emphasis on differences between the mem-
ber states opens environmental solidarity up to national perceptions and
disagreement over solidary responsibilities. Southern member states, which
are more often affected by natural disasters, have questioned to what
extent other member states are prepared to act in the spirit of solidarity
and are willing to offer the required assistance (Rhinard, Ekengren, and
Boin 2006, 516). In contrast, the less affected northern European countries
tend to emphasize national responsibilities (Åhman 2009, 43; also Rhi-
nard, Ekengren, and Boin 2006, 516).
This lack of consensus is inseparably linked to the lack of competences on
EU level and sovereignty concerns of the member states. The provision of
help lies in the hands of the member states, Article 196 TFEU, without any
provisions stipulating whether or not they are obliged to maintain a certain
level of preparedness or are obliged to have available certain capacities
(Åhman 2009, 25). Also the Solidarity Clause leaves it open to the member
states how to show solidarity. Similarly, the Civil Protection Mechanism
depends upon the resources that member states are willing to share (Euro-
pean Organization for Security 2009, 9). This results in oversupplied or
unhelpful assistance (Ekengren et al. 2006, 466, 469; further reference
466 I. Domurath

Commission 2009a), as well as confusion and uncoordinated activism,


because the European countries can send whatever resources they have avail-
able, irrespective of the ones requested.6 What is more, sovereignty concerns
have induced member states to disagree with Commission proposals on
additional competences and resources for the EU for enhancing solidarity
(Ekengren et al. 2006, 457–76, 471; Olsson et al. 2009, 5).7 In fact, there is
a North–South division in the EU with regard to the ‘Europeanization’ and
‘solidarization’ of crisis management. The challenges of European integra-
tion become apparent (Golub 1996, 686–701, 686; Boin et al. 2007, 8;
Missiroli 2006, 423 et subs.).
So, in this field of law, solidarity is based on the recognition of differ-
ences among the member states, but there is a lack of consensus on the
scope of a common obligation (further reference Williams 2009, 493–508,
500–2). Due to their lower environmental vulnerability, northern member
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states do not have to rely on the reciprocal, solidary support of southern


member states. Consequently, a common interest in effective disaster man-
agement cannot be motivated and solidarity is underdeveloped. Solidarity
only shimmers through in environmental legislation when reflecting the
transboundary character of environmental problems without entailing
explicit obligations. Finally, since the member states do not enjoy enforce-
able rights complementing obligations, the ECJ cannot operate as a soli-
darity-promoting authority.

Solidarity Between Generations: Sustainable Development


The Lisbon Treaty introduced ‘solidarity between generations’, Article 3
(3) TEU, as the third dimension of solidarity into the EU legal order. This
reflects a new awareness of responsibility towards future generations, due
to unprecedented demographic change leading to a decrease in working
population and challenging the resilience and sustainability of social secu-
rity systems (see Council of the European Union. 2005a, 2; European
Commission. 2008b).
Solidarity between generations is essentially expressed through the con-
cept of sustainable development, which instead of being based on same-
ness or the acceptance of differences, builds upon distributive justice and
inter-generational equity. However, under the umbrella of weak sustain-
able development, future-oriented goals such as maintaining the environ-
ment in a way that future generations can fulfil their own needs, are in
practice often disregarded in favour of fulfilling present, often economic,
needs. Due to a lack of a reciprocal relationship within a group that
shares a common interest or enforceable individual rights, solidarity with
future generations in inhibited.
An Understanding of Solidarity with Future Generations: Sustainable
Development
In international law, sustainable development is defined as: ‘Development
that meets the needs of the present without compromising the ability of
future generations to meet their own needs’ (UN World Commission on
Environment and Development 1987, Chapter 2 Nr. 1).
Three Dimensions of Solidarity 467

Sustainable development encompasses three pillars – economic and


social development and environmental protection – under which all con-
cerns of the modern world can be assembled (Principle 5 Johannesburg
Declaration; Winter 2008, 27; further reference French 2005). They are
generally considered to be equal, interdependent and mutually reinforcing
(Johannesburg Plan of Implementation, Paragraph 2).
The solidary rationale of the concept is expressed in its concern with
distributive justice between the present and future generations (Cordon-
nier Segger 2008, 168; French 2005, 29),8 and the principle of inter-
generational equity, according to which future generations have a right
to a fair part of the common patrimony and common goods, as for
example, natural resources (Principle 2.1 of the ILA-Resolution 3/2002).
Future generations will only be in a position to meet their own needs
if they can use clean air, water, and other natural resources to make a
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living. This means that, in order to show solidarity with future genera-
tions, their interest in an intact environment is to be recognized as part
of our present community of interests (see Hilson 2010, 147). Fairness
and distributive justice are the bases of this solidarity, whereas same-
ness plays a minor role.

Sustainable Development in the EU: Proportionate Integration


In the EU legal order, sustainable development is implemented by the
so-called integration principle, Article 11 TFEU, and the environmental
impact assessment (EIA) procedure, which both aim at balancing eco-
nomic development goals with environmental concerns. The integration
principle requires economic growth to be sustainable in a harmonious
way with the environment (Manners 2008, 54), as it stipulates that
environmental protection policies must be integrated into other Union
policies and activities (Jans and Vedder 2008, 17). Some have argued
that integration demands environmental concerns be a necessary part of
economic development and, thus, commands to restrict economic activi-
ties if necessary to achieve a high level of protection (Veinla 2008, 7).
However, a view to the EIA-procedure in environmental legislation
shows that integration is interpreted in a way that environmental con-
cerns have to be merely ‘taken into consideration’ (Article 8 EIA-Direc-
tive 85/337/EEC), without any imperative consequences for the project.
According to Article 4 (5) Water Framework Directive, member states
can pursue less stringent environmental objectives than those required
under Article 4 (1), when affected by human activity. This has to be
justified by environmental or socio-economic needs which cannot be
achieved by significantly better means without entailing disproportionate
costs, Article 4 (5) lit (a). Also Article 6 (4) Habitats Directive 92/43/
EEC prescribes that:

… in spite of a negative assessment of the implications for the site


and in the absence of alternative solutions, a plan or project must
nevertheless be carried out for imperative reasons of overriding public
interest, including those of a social or economic nature...
468 I. Domurath

In other words, consent to the project can be given, despite detrimental


effects on the environment, if a balancing of the different policy objectives
reveals another prevailing interest.
In the light of the proportionality principle, the ECJ has also tried to
bring future-related environmental objectives to effect in case of colli-
sion with present development goals. Different strands of jurisprudence
can be detected. In some cases, environmental protective measures pre-
vailed over the economic interest in the functioning of the internal mar-
ket,9 whereas in others environmental protection goals did not restrict
economic interests.10 Even though it has been claimed that the EU is
one step ahead of, for example, the WTO in acknowledging environ-
mental protection as a policy objective (Reid 2004, 318), the author
would like to add one point for consideration. The benchmark of the
proportionality assessment is the functioning of the internal market.
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Restrictions of trade that pursue other policy objectives have to be jus-


tified and cannot restrict trade more than absolutely necessary. Environ-
mental concerns have to be integrated into economic development
goals. It is not the other way around that economic polluting measures
have to be justified against the goal of environmental protection or that
economic goals have to be integrated into environmental strategies.
This value judgment can also be found in the policy strategies of the EU.
For example, the current economic strategy of the EU, Europe 2020 (Euro-
pean Commission. 2010), puts forward the objective of smart, sustainable
and inclusive growth as three ‘mutually reinforcing priorities’ (ibid., 3).
Smart means that the EU economy shall be based on knowledge and innova-
tion, which also includes ‘green’ growth pertaining to alternative, environ-
mentally friendly production methods and land management (ibid., 10);
sustainable implies that it shall become ‘greener’, more resource efficient
and more competitive; inclusive concerns social and territorial cohesion
(ibid.). The strategy does not encompass general environmental protection
goals. The only environmental issue named is the achievement of the ‘20/20/
20’ climate targets (ibid., 10). Europe 2020 addresses environmental issues
only insofar as they touch upon the interest in economic growth: efficient
resource management concerning the reduction of emissions, the decarboni-
sation of the transport sector and the further support of renewable energies
(ibid., 9, 14). In contrast, conservation of natural resources, biodiversity
loss, landscape fragmentation, or pollution in general are not mentioned.
The economic pillar of sustainable development is clearly emphasized. Envi-
ronmental protection is merely promoted in relation to development (Reid
2004, 304). The value judgment of establishing the economic interest in the
functioning of the internal market as the benchmark for balancing compet-
ing policy goals carries along an economic bias which makes the integration
of environmental concerns into economic policy weak.
As a consequence, the achievement of environmental protection goals is
often hindered by political, social or economic actions (also Krämer 2008,
386; European Parliament. 2010). Especially in fields, in which the collision
of environmental conservation goals and economic development objectives
is stark, such as is the case when using natural resources for development
Three Dimensions of Solidarity 469

purposes, environmental protection goals are not achieved. Ecosystems and


habitats in Europe are highly fragmented due to human settlement and
transport infrastructure, resulting in the loss of biodiversity, without any
reversing trends (Commission 2009b, 21–2). Also, European fish stocks are
fished outside of biologically sustainable limits and have, hence, dramati-
cally declined (Commission 2009d, 47). It has, therefore, been stated that
the equality of the three pillars leads to an ‘ecological ignorance’ (Bossel-
mann 2008, 53), because it – in practice – leads to the loss of its environ-
mental premise (Winter 2008, 28). It is not yet ensured that future
generations will be able to meet their needs. Solidarity with future genera-
tions in the EU is inhibited.
Even though the ECJ has, on occasion, acknowledged proportionate
restrictions of the economic interest in the functioning of the internal
market on environmental goals, the question could be asked whether
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environmental goals could be better achieved if there was a rights-holder


who could bring to effect rights in an intact environment. As we have
seen in the field of socio-economic law, citizenship rights have signifi-
cantly advanced solidarity despite certain limits imposed by the propor-
tionality principle. It would, however, be politically difficult to establish
such solidary rights for future generations, especially when it comes to
strengthening the environmental pillar of sustainable development, where
the notions of reciprocity and sameness do not apply.
Strong Sustainable Development: A Possible Alternative?
The improvement of solidarity with future generations could be achieved
by a policy shift that acknowledges the weaker position of environmental
goals and future interests vis-à-vis present economic development goals.
Without an ecological benchmark that aims at preserving natural
resources, future generations will be deprived of the possibility to fulfil
their needs. Such a policy shift could be based on the concept of strong
sustainable development, developed by Bosselmann (Bosselmann 2008).
His approach is based on the promotion of long-term economic prosper-
ity and social justice within the limits of ecological sustainability. It pre-
sumes that the natural system embeds and constrains all human action
(Ott 2008, 62) and, thus, emphasises the environmental pillar of sustain-
able development over the other two. It imposes the responsibility upon
all human actors to respect ecological boundaries when pursuing eco-
nomic and social objectives, as, for example the obligation to exploit
natural resources within ecologically supportable limits. Thus, strong sus-
tainable development aims at preserving natural capital so that future
generations will be able to enjoy the same welfare opportunities (Ott
2008, 62) and pursue their economic and social development goals with
the same natural prerequisites as we do at the present day. Therefore, it
reflects solidarity with future generations more than weak sustainability.
However, in order to give effect to such policy shift and actually
strengthen environmental protection and solidarity with future genera-
tions in the EU legal order, the challenges brought about by the firmly
established proportionality principle will have to be addressed.
470 I. Domurath

Conclusions: The Challenges of European Integration and a Forgotten


Variable
There is a lack of European transnational solidarity to different degrees in
all three dimensions. Solidarity is further developed in the socio-economic
law of the internal market concerning solidarity with individuals, however
only through an extension of national solidarity. Inter-state solidarity is
underdeveloped, as we have seen in environmental law. And solidarity
between generations is lost over the achievement of economic goals at the
expense of environmental protection. There are two reasons for these dif-
ferent levels of solidarity: the different rationales of solidarity and the indi-
vidual rights-based approach.
Sameness is the most developed rationale of solidarity in the EU,
although it is limited as a basis for transnational solidarity in a heteroge-
neous European community. Where it is based on the acceptance of differ-
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ences solidarity is underdeveloped; in the absence of a prospect of


reciprocal benefits, actors are reluctant to achieve consensus on solidary
obligations. With regard to solidarity with future generations, the basis of
solidarity – sustainable development and the principles of fairness and
equity – is more abstract and even more detached from a reciprocal basis.
It is therefore probably not surprising that this solidarity is the least devel-
oped dimension of solidarity in the EU. As regards the individual rights-
based approach, solidarity is more developed in the socio-economic field
of law. Here, individual rights are brought to effect in the balancing pro-
cess. In the absence of such rights, as in environmental and sustainable
development law, the balancing of diverging interests seems to be biased
by an economic rationale, which leads to environmental protection being
at the losing end of the compromise. This inhibits solidary between mem-
ber states and with future generations.
In many ways, the problems encountered in establishing legal solidary
obligations reflect a larger debate about European identity and integration.
While EU citizenship has prompted new expectations with regard to Euro-
pean integration and its possible benefits, the member states have
attempted to halt integration at their borders by reserving solidarity for
own citizens and shielding against EU competence. Hence, the nation-state
ideal, albeit being in retreat, is still of importance in the EU legal order. In
this regard, the coexistence of national and European citizenship reflects
one of the greatest challenges to European integration. Transnational soli-
darity has not only been an initial idea behind European integration, but
its extent is also a mirror of the state of the integrative process.
Since solidarity is a sociological concept involving the feeling-based ideas
of sameness, community, and responsibility, we can question the suitability
of a legislative or judicial approach for promoting solidarity with not same
individuals, the environment or future generations. In order to advance a
European solidarity that is based on plurality, a bottom-up approach deriv-
ing from acceptance by the European citizens could prove to be more suit-
able. Such bottom-up approach can only be based on a societal
understanding of a European community, which is, in fact, emerging. Euro-
pean citizenship already reflects a feeling of being European and a newfound
Three Dimensions of Solidarity 471

sense of community after the Cold War since it breaks through traditional
preconceptions of nationality and citizenship. The expectations concerning
transnational solidarity that come with European citizenship have been
adjudicated in decisions involving young Europeans who sought for educa-
tion in another member state (Grzelczyk, Bidar).
The author would like to put forward the consideration of enhancing
transnational solidarity through education – a variable of solidarity that has
been largely neglected. Sustainable development law does refer to education
at times, but education remains a disregarded means to advance European
integration into a solidary dimension (exception Böckenförde 2006, 39). But
enhancing education could contribute to the formation of the enlightened
self-interest in Stjernø’s terms, as well as the creation of potent actors who
are able to take the complex decisions that are required in order to overcome
the challenges that we have encountered in the course of this research. In this
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way, education could help to disconnect solidarity from the expectation of


reciprocity and base it on the acceptance of a diverse, plural society. The
shared experience that comes with ‘European’ education could promote the
development of a transnational identity and solidarity that is independent of
the degree of integration into one host member state. It could replace same-
ness as a (limited) basis for European solidarity or broaden the understand-
ing of sameness in a way that it comprises a diverse, plural society
committed to sustainable policies. On that note, the rights-based approach
to solidarity can merely act as a vehicle to make education in another mem-
ber state possible, but cannot replace the shared experience that transna-
tional education involves.
In order to advance education, there is also a need for more academic
research. Although there are commentators dedicated to the concept of
solidarity in the socio-economic field of law and in sustainable develop-
ment matters, there is hardly any secondary literature available examining
environmental solidarity or putting solidarity with future generations in
the EU into context with sustainable development. More academic
research on solidarity integrating all three dimensions of solidarity could
enhance awareness among scholars, states and non-state actors to advance
solidarity and to make the idea operable beyond references in the Euro-
pean Treaties and policy documents.

Notes
1. See Borgmann-Prebil (2008, 328–50, 331 et subs), Somek (2007, 1–19, 19–26), Dougan (2005,
180–218, 128), and Guibboni (2007, 360–79).
2. The ECJ has confirmed the ‘fundamental status’ of EU citizenship in the EU legal order on many
occasions (Grzelczyk C-184/99, paragraph 31, Baumbast C-413/99, paragraph 83; Bidar C-209/
03, paragraph 31; Zambrano C-34/09, paragraph 41; further reference Borgmann-Prebil 2008,
328–50, 335 et subs.)
3. The academic literature has responded somewhat startled to the equalization of integration and
time spent in the host Member State. Somek (2007), 51, for example, calls this feature of Euro-
pean citizenship ‘disturbingly autistic’.
4. For criticism concerning the erosion of national protection standards in labour law: Micklitz
(2010) on Viking and Laval; concerning the danger of member states lowering their social secu-
rity standards: Barnard (2005b, 1481–3).
5. Also Giubboni (2010, 166–97, 194–5) concerning labour law; and Barnard (2010, 73–105, 105).
472 I. Domurath

6. See Council Decision 2001/792/EC, recast Council Decision 2007/779/EC, Preamble (4), and
other European disaster management mechanisms: Council Regulation 20002/2012/EC, Council
Regulation 2001/381/EC, also: Council of the European Union. (2005b).
7. Similarly, the EU does not have the competence to harmonize the different approaches to risk
and threat assessment across the member states (European Organisation for Security. 2009, 8).
This problem is rooted in the legal instruments themselves. The Solidarity Fund relates to the
immediate recovery after a disaster occurred (Olsson et al. 2009, 96–7, 159); the CPM aims at
strengthening the member states’ capacities for consequence management. Although the EU does
engage in some prevention work (see for example Directive 2007/60/EC, http://www.effis.jrc.ec.
europa), these activities remain fragmented and do not consider the broad spectrum of environ-
mental interdependencies (further reference Barnier 2006; Commission 2008a, 2009c).
8. For a deeper analysis of the elements of distributive justice, see Finnis (1980, 165–72).
9. For example, Commission v Belgium (Belgian waste), C-2/90, Preussen Elektra AG v Schleswag
AG C-379/98, Criminal Proceedings against Ditlev Bluhme (Danish Bees) C-67/97.
10. For example, Procureur de la Republiqne v. Association de defense des brûleurs d’huiles usagées
(ADBH) C-240/83, Commmission v Denmark (Danish Bottles) C-302/86.
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