A Conceptual History of Solidarity in Law
As we saw, Article 80 TFEU concerns solidarity and fair sharing between Member States only and not solidarity between Member States and refugees or Member States and other recipient states in crisis regions. Historically, ‘solidarity’ as a legal term of art describes a quite different relationship. We will argue that the term ‘solidarity’ in Article 80 TFEU is simply out of place and risks creating false expectations. Which is exactly what has happened in the refugee reception crisis of 2015 and in the discourse on the 2020 Pact on Migration and Asylum.
While the concept of solidarity has engendered a vast literature,Footnote 27 we believe that tracking it back to the reception of Roman law is particularly worthwhile. Obligation in solidum is a nineteenth-century concept based on the Roman law of obligations and its techniques to provide personal security to a creditor. Rather than merely relying on the debtor, the creditor may turn to another person (called the surety) who bound himself to that creditor as being responsible for the fulfilment of the debtor’s obligation. Think of a group of actors assuming this obligation in solidum, and you have a pretty robust construction for getting back what you are owed. This particular technique lives on in all modern legal systems.Footnote 28
The most favourable form of a Roman surety transaction comes without any restrictions on the amount which the creditor may demand from any one of the sureties.Footnote 29 This is the most solid personal security one may think of under Roman law, and it gave rise to the concepts of obligation in solidum and of solidarity. How the debtors among themselves handle the situation obtaining when the creditor has demanded payment from one of them and is a secondary question that has been dealt with separately both in Roman law and its reception in civil law systems. Evidently, the smooth functioning of obligation in solidum depends on a well-designed agreement among the sureties on how to respond to it or on general legislation.Footnote 30
Up and until 1835, the German sociologist Rainer Zoll tells us, this understanding of solidarity as surety prevails to the degree that the Dictionnaire de l’Academie francaise defined it only in this way, emphasizing that solidarity may not be presumed but needs to be declared explicitly.Footnote 31 What is rendered solid in this construction is the likelihood of the legal obligation being honoured. This is done by extending the personal base and by unifying it in obligation. To the creditor, the debtor and the sureties become all one. Here is a feature explaining why the solidarity concept is so attractive for later appropriation, first by the French solidarists and then by the European Union. While consisting of sovereign states, the EU wishes to appear as an inseparable unit to outsiders as much as to itself.
So, the Dictionnaire de l’Academie francaise of 1835 still knew only of Roman legal solidarity. Then something happened: as an outflow of the revolution, French nineteenth-century scholars looked for a positivist base of the law in the social. As it happened, they converged on a reconceptualization of solidarity, doing away with the crispness and clarity the term possessed in the Roman law of obligations. French solidarism was designed as a compromise offer by the bourgeoisie to quell revolutionary predilections by those most exposed to the maelstrom of industrialization.Footnote 32 In the long run, the work of French positivists, duly backed by the Holy See,Footnote 33 provided for the reception of solidarity into the doctrines of French public law. All this crystallizes in the preamble of the French Constitution of 1948 which reads ‘La Nation proclame la solidarité et l’égalité de tous les Français devant les charges qui résultent de calamités nationales’. (The nation proclaims the solidarity and equality of all French as to the charges resulting from national calamities.)
From the vantage point of Roman law, that is quite a shift. Is solidarity used to describe the relationship between creditor and a surety? The only creditor candidate would be les calamités nationales, in which case tous les Francais would be debtors and sureties. As it is characteristic of calamities that they do not obey human laws, this would not make much sense. Rather, the usage of solidarity in this provision moves us into what would have been a secondary issue in Roman law: the relationship between the French people as the sureties of the national calamity. So, what it does is to denote the relationship between tous les Francais as creditors (meaning those primarily hit by national calamities) and tous les Francais as debtors (meaning those not being primarily affected). The arbiter of this process is la Nation. This is French positivist solidarity, which focuses on a contractual relationship between those taking a loss caused by an outsider.
One more word on why nineteenth-century French scholars felt they needed solidarity. Imagine that the revolution was the defining event of your epoch. As you are interested in laicité, you will very likely come to be interested in positivism. You will find the idea of a social contract problematic, even if it was something of the official doctrine at the time, because there is no positive trace of anyone signing any such social contract. You will look for an alternative to that social contract idea. In which case you might be Alfred Fouillée (1838–1912) and you might believe that the state is an organism, inspired by the contemporary writings of Spencer and Darwin.Footnote 34 Why does this help you to be a positivist? The people and their social relations, you would think, are real, whereas the signing of a social contract is just an idea. The interdependence in social relations is such that it functions as a quasi-contract. If the workers, for example, are not paid in parity to their actual contribution to the survival of the social organism, une dette social, a social debt emerges.
With our historical distance, we see how Fouillée was both faithful to positivist thinking (the state being a factual organism) and violated its precepts (this organism being a quasi-contract, a relapse into metaphysics). Emile Durkheim took this further by jettisoning the idea of a quasi-contract. He elevated solidarity to be so indispensable for the people’s survival that freedom were to be subordinated to it. Its moral normativity, he believed, expressed itself in law. Does this give us a hint why Article 80 TFEU was deemed necessary? Were the drafters of the Lisbon Treaty anxious that the moral imperative of solidarity was not sufficiently expressed in the law yet? A late monument to Durkheimian thought?
The story does not end here: solidarism would have its most influential promoter in Léon Duguit. In line with Durkheim, he casts solidarity as a factual condition for human life, and in that, solidarity demands behaviour in conformity with it. ‘La notion de solidarité implique la conception d’une règle de conduit, suffisante pour déterminer les pouvoirs et les devoirs de l’homme social’.Footnote 35 We see him tucking back any sense of prescription into sheer positivist description: a norm of solidarity is ‘implied’ in the fact of solidaristic human life. Duguit’s solidarity is a social law, and this law has to be obeyed not because it is good or beneficial, but, as he put it laconically, ‘because it is’.Footnote 36
Why would the French be so preoccupied with solidarity? A simple answer would be that solidarity might attract those whose frustrated hopes for fraternity would otherwise lead them into the arms of socialism. If a society’s laws are in conflict with solidarity, it seems, solidarity is to be obeyed as any law of nature would be obeyed. Whether you hope for evolution of the laws or their abolition through revolution, French solidarity thinking would keep you away from the more radical position of class struggle taken by the socialists.
Leaping forward to the interwar period, with fresh examples of la dette social and the additional burdens of war resulting in revolutions across Europe, we can trace how French solidarism morphed into an internationalized form. The Locarno Pact and its promise of peace and security in the region (usually referred to as the Locarno spirit) led to the belief that a policy of cooperation between European countries would be the way forward. Ideas pointing to ‘a United States of Europe’ or ‘pan-Europe’, suggesting a federation not affecting the sovereignty of the participant nations, were put forward by leading political figures at the time, including Richard von Coudenhove-Kalergi, Aristide Briand and Nicolas Politis whose vision was informed by French solidarism and the French sociological school to international law.Footnote 37 Coudenhove-Kalergi was the founder of the International Pan-European Union, the first and best known of the Europeanist groups to emerge after 1918, and he put forward an idea for European Union from the liberal democratic or bourgeois perspective. His proposal aimed at offering a way out of the great problems that confronted Europe in the years after the peace settlement, namely, the incapacity of democratic regimes to deal with the danger of European war, the risk of terrible economic collapse and the threat of Bolshevism.Footnote 38 Building a security alliance through cooperation internally and antagonism externally—directed towards either or both of the emerging superpowers, the USA and Russia, has been the driving force of what later on became a juridical and economic European Union.Footnote 39 The antirevolutionary features of French solidarism, originally playing out on the level of French class society, had now assumed a geopolitical dimension.
Largely, this leaves us with two analytic frameworks: that of Roman legal solidarity and that of French public law solidarity and its later derivative. Roman legal solidarity is triggered by an intra-contractual event and therefore quite predictable: a creditor calls on one of the sureties to honour her obligation. French public law solidarity as manifested in the 1948 Constitution’s preamble is constituted by a calamity: beyond all form of contract, beyond predictability, just like a hailstorm ravaging the crops on a summer day. Roman legal solidarity could be brought to bear on anyone under the jurisdiction of Roman law, Roman citizen or stranger. French public law solidarity is emphatically a matter for and within the nation-state. Roman legal solidarity rested on a sophisticated set-up of two legal relations; one between the creditor, the debtor and sureties and another between the sureties and the debtor. At the level of principle, French legal solidarism was devoid of such precision, which one would need to hunt for in the capillaries of French social law. As we will see, these typological differences will be hugely important once we project them onto articulations of solidarity in EU law.
Why Article 80 TFEU Is Deceptive
What difference does this conceptual history of solidarity make for our understanding of Article 80 TFEU? In the Roman law of obligation, solidarity presupposes a contract between a creditor and a debtor, backed up by one or more sureties. Under Article 80 TFEU, which actor would be analogous to a creditor, to a debtor and to a surety? And what would be the analogon to an agreement between creditor and debtor?
We have earlier concluded that the ‘principle of solidarity’ relates to the ordinary, daily operation of the CEAS, with the Dublin system at its core. Dublin creates imbalances in the distribution of asylum protection among the Member States. Could a stipulation on solidarity in primary law be sufficient as a matter of law to equalize the differences in protection burdens between Member States that the lawful operation of the Dublin system entails? On a benign reading, it could provide the analogon to the legal concept of obligation in solidum. However, nowhere is there a sign of the analogon of a legal debt needed to operate this obligation in solidum. We should recall that the differences between Dublin states’ protection obligations emerge as a matter of hard EU law, while the claim to offset them is political. The Roman law concept of solidarity is exactly not designed to handle moral–political debts but requires a legally valid debt to be applicable. This reading of the ‘principle of solidarity’ would quickly turn nonsensical. But let us verify: is there indeed no debt and no creditor in sight?
Actually, there could be. Human rights law and refugee law proscribe that Member States return persons in need of protection to states where they face risks or threats. These prohibitions of refoulement provide an asylum seeker with a right it may invoke against any of the Member States, once she is within the jurisdiction of a Member State. The European Convention on Human Rights and the 1951 Refugee Convention are the counterpart to the contract between creditor and debtor at the base of any relation of Roman law solidarity. And while the asylum seeker is a beneficiary of rather than a party to these treaties, the contracting parties have placed her in a position that gives her the power to insist on the performance of an agreed obligation on behalf of the creditor. The fact that Article 80 TFEU is silent on all this does not change the matter at hand. EU primary law has to be interpreted in conjunction with international legal obligations, and Articles 18 and 19 of the CFR protect rights that largely mirror non-refoulement obligations in international law. On this reading, we would have a debt (protection from refoulement) and a stand-in for the creditor (the asylum seeker). The states being bound by non-refoulement can be understood as being a group of debtors. What is lacking are the sureties characteristic for obligation in solidum. Refoulement provisions leave the distribution of burdens accruing from their application unregulated.Footnote 40 A state confronted with an asylum claim could be seen to be in a position analogous to that of a debtor confronted with a claim. If that debtor denies the asylum seeker protection, there is no mechanism by which protection can be reliably claimed from a secondary state acting as the analogon to a surety.
There is one historical exception in the operation of EU asylum law where a system of sureties existed. We refer to the relocation mechanism that operated between 2015 and 2017 to alleviate the protective burden of certain frontline Member States by the legal obligation of other Member States to accept relocation of arrivals.Footnote 41 While the fit of the analogy is not perfect, a frontline Member State as Malta could be seen as a debtor defaulting on the protection claims of arriving asylum seekers, with other Member States taking up the slack through their relocation obligation would act as sureties. The short-lived relocation scheme remains the only tangible approximation to Roman law solidarity. While the challenge to this scheme by Hungary before the CJEU remained unsuccessful, the system ultimately failed as there was no political will among Member States to continue its operation. If Roman law solidarity is but a brief exception in EU migration and asylum law, what is its rule?
Let us therefore inquire whether Article 80 TFEU shows traits of the French public law concept of solidarity. As we saw, the French concept does not presuppose an ex ante contract but is built on the tension between solidarity as a precondition for human survival and some factor threatening it—in the poignant words of the 1948 Constitution, a ‘calamity’. Article 80 TFEU seems to fit very well with this structure. After all, it is not only about asylum but about immigration and border control as well. The EU’s consistent position over the past decades has been that ‘illegal immigration’, an umbrella concept including most of the asylum seeking done in the Member States, is a threat that the Union and its Member States have to fight. Here is the analogon to a massive calamity that would call forth solidarity. And the very fact that solidarity is named over and above the ‘fair sharing of responsibility’ seems to suggest that solidarity is not fully exhausted in the fairness of sharing. The rationalism of sharing aside, there is something incomprehensible about solidarity just as there is something incomprehensible about la Nation. After all, neither Duguit nor any other French solidarity thinker of the nineteenth century can tell us why the social organism of solidarity is coextensive with the nation, and not with, say, a smaller or a larger social grouping.Footnote 42
Here is our intermittent proposal for a reading of Article 80 TFEU. With the failure of the 2004 Treaty Establishing a Constitution for Europe in French and Dutch referenda, the EU was thrown back into being the piecemeal functional alliance on nation-statist grounds from which it had tried to emancipate itself for so long. If anything, the de-constitutionalization by referendum suggested that no social organism existed at a pan-European level. If you happened to be an EU policy maker and you were just denied a constitution by a couple of obstinate peoples, conjurations of solidarity would be the second best way forward. Hence, the EU gestured at the existence of a European social organism through a number of solidarity clauses in the Lisbon Treaty—among them, Article 80 TFEU. They suggest no less that a social organism does exist at Union level, over and above those implied in the nations of the Member States.
After reading Article 80 TFEU through the Roman legal concept and the French social concept of solidarity, are we compelled to conclude that it is devoid of meaning? Not quite. If we reinterpret it as a development of French public law solidarity into the form of an alliance, it makes sense. Out goes the search for an ex ante contract or an ex ante social organism. We just have to make good that a number of sovereign states decided to coordinate their efforts to defend themselves against an external calamity. It appears that we are experiencing just this right now. While there is wild disagreement on any solidaristic protection of refugees among Member States, they do agree on the necessity to protect external borders. If the threat that the thinkers of French positivist solidarity sought to avert were self-organizing French workers, the threat EU solidarity seeks to avert is the self-organization of migrants. Both forms of self-organization—that of nineteenth-century French workers and that of contemporary migrants to Europe—are read as systemic challenges to the political order of the day.
There remains a difference, though. Self-organizing workers in nineteenth-century France could be addressed in their capacity as French workers in the appeasement agenda that French solidarism formed part of. This appeasement went hand-in-hand with the repression of socialism in Europe at the time. Repression without appeasement was not an option, as the labour of French workers was needed for a rapidly industrializing economy. Self-organizing migrants, by contrast, need not be appeased. They are not part of a nation-statist project in Europe or the European project at large, and this is at least the folkloristic standard belief: there is no economic dependency on their labour. What remains is sheer repression. The object of that repression is the self-organization of a group of non-nationals, who organize their own travel and gain the status of an asylum seeker, however precarious. On the level of structure, this rhymes well with the Europeanization of solidarity thinking in the interwar period, which combined intra-European welfareism with a defensive stance against Bolshevism—a motive that would come into full bloom during the Cold War.
With those factors in mind, we will look into other solidarity provisions of the treaties in the next step and test whether they resonate with the Roman legal model, the French social model or,our third alternative by now, an alliance model.
Article 80 TFEU Compared to Other Solidarity Provisions
Among the ‘Common Provisions’ set out at the beginning of the TEU, Article 3.3 features solidarity language:
[The Union] shall promote economic, social and territorial cohesion, and solidarity among Member States.
The use of the verb ‘promote’ suggests that there is no hard obligation between creditor and debtor at work in this provision and that Roman legal solidarity is completely absent. Our reading in line with the logic of French social solidarity would be that there is no social organism at the EU level just yet, but to the extent the EU sees it emerging, it has to be promoted. Article 3.3 TEU would then only kick in if a ‘positivist’ analysis shows a European people to have emerged. That is quite a tall order indeed. In the alternative, solidarity in this provision is neither susceptible towards a Roman or a French interpretation and needs to be unlocked with a third interpretation.
Looking back at our analysis of Article 80 TFEU now, it appears that the same applies to that provision. It lacks the requisite interplay between obligation and entitlement under the Roman tradition. Neither can it be read in the light of French solidarism, because this would only entail a hard obligation on Member States and the Union if and only if European people have been shown to have emerged. It is unlikely, though, that this article has been drafted with such long foresight. To corroborate our point that the drafters simply were not on top of the concept they used, let us add an analysis of Article 42.7 TEU and of Article 222 TFEU in order to show that the use of solidarity language is equally misplaced there.
First is the mutual defence obligation of Article 42.7 TEU. There is no trace of the word ‘solidarity’ here, and we will soon explain why this is fully adequate. The provision reads as follows:
If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.
What strikes us first is that a calamity in the form of armed aggression is at work here. But if we were to look for a social organism that would act in solidarity when faced with such a calamity, the last sentence of Article 4.2 TEU would advise us that, ‘[i]n particular, national security remains the sole responsibility of each Member State’.
This suggests that Member States cannot be understood to express nineteenth-century French social solidarity at Union level in the area of national security. Therefore, we hold that Article 42.7 TEU is anything but a solidarity clause in the sense of the term reflected in Roman or French law. Reading it as an alliance clause or a clause of collective self-defence would seem to be appropriate. Among the OED entries on the term ‘alliance’, we find this one: ‘Combination for a common object, confederation, union offensive and defensive; especially between sovereign states’.Footnote 43 While a combination of sovereign states for a common object might be very tight-knit in practice, it is still characterized by its focus on a single issue, as defence, or, indeed, migration and asylum. This is different from the idea of a people as a social organism, for whom anything calamitous could turn into a common object.
A comparison with the NATO provision on collective defence in Article 5.1 of the North Atlantic Treaty indicates that Article 42.7 TEU is a less articulate derivative of it:
The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.
In a part of the Treaty addressing ‘The Union’s External Action’, the ‘Solidarity clause’ of Article 222 TFEU states the following in its first sentence:
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 or man-made disaster.
The remainder of the article offers what we might call procedural guidelines on how to orchestrate and coordinate prevention and assistance both by the EU and by its Member States. Under Article 222.4, the Council adopted a decision which offers even greater procedural granularity in this respect.
Is Article 222 really a solidarity clause? In the light of Article 42.7 TEU and Article 4.2 TEU, it cannot be, although the drafters confusingly named it so. National security is still a matter for the social organism of the Member States and not that of the Union. The external calamity of terrorism or natural disaster makes Member States enter a loose alliance with each other, which is something quite different from the concept of European solidarity.
There are two further examples that are neither about alliances nor about organic solidarity at the Union level: Article 122.1 TFEU on supply crises inter alia in the energy sector and Article 194 TFEU on energy policy provide for regulatory competency to support the functioning of the internal market. Union policy is to be articulated ‘in a spirit of solidarity between Member States’ in both provisions. We think that the reasons militating against the use of solidarity terminology are not as strong as in Article 222 TFEU, as energy market issues involve the regulatory competency of the Union. But as in Article 80 TFEU,Footnote 44 the reference to solidarity is sheer decoration as long as we cannot make out a European social organism that would prop it up.
We have now reached a point where the conceptual history of solidarity and a lateral comparison of cooperation provisions in EU primary law point to the same conclusion: Article 80 should be understood as an alliance clause against the external threat that irregular migration, including that of asylum seekers, is perceived to be. The term ‘solidarity’ in it is a misnomer, unless we understand it as synonymous to defence against an external threat risking to turn into an internal one, just as Bolshevism must have been perceived by the Europeanist thinkers of the interwar period.