Solidarity in the case law of the European Court of Justice – opportunities missed?

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Abstract

Since the EU Treaties constitute solidarity as one of the EU’s fundamental values (Articles 2, 3 (2) TEU). In a Community of law, the validity of this value depends on its capacity as a legal principle. This chap-ter asks what, if anything, the case law of the Court of Justice (ECJ) contributes to the discursive exe-gesis of solidarity as a principle of EU Constitutional Law. In order to answer this question, it offers an empirical analysis of the Court’s case law framing the notion of solidarity, providing a unique database evaluating all 122 cases elaborating on the concept. The analysis distinguishes three categorial types of solidarity (solidarity as charity, as mutual obligation and as risk mitigation) and three functional types of solidarity (embedding individual rights, embedding the Internal Market, rejecting limiting effects of national solidarity). The chapter identifies a number of missed opportunities, and a high degree of in-consistency. A more assertive and consistent approach to solidarity could, however, contribute to sup-porting a more inclusive constitutional discourse on European integration than the mere reliance on liberal constitutional principles.
Original languageEnglish
Title of host publicationTransnational Solidarity. Concept, Challenges and Opportunities.
EditorsHelle Krunke, Hanne Petersen, Ian Manners
PublisherCambridge University Press
Publication statusAccepted - 21 May 2019
EventCourts, Power and Public Law : 4th ICON S Conference of the International Society of Public Law - University of Copenhagen, Copenhagen, Denmark
Duration: 05 Jul 201708 Jul 2017
Conference number: 4th
https://www.icon-society.org/previous-conferences/2017-conference/

Conference

ConferenceCourts, Power and Public Law
Abbreviated titleICON S
CountryDenmark
CityCopenhagen
Period05/07/201708/07/2017
Internet address

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Keywords

  • Solidarity
  • New Legal Realism
  • European Court of Justice
  • European Union Law

Cite this

Schiek, D. (Accepted/In press). Solidarity in the case law of the European Court of Justice – opportunities missed? In H. Krunke, H. Petersen, & I. Manners (Eds.), Transnational Solidarity. Concept, Challenges and Opportunities. Cambridge University Press. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3523787