'Wish you weren't here...' : new models of social solidarity in the European Union

It is trite to observe that, even though responsibility for welfare provision remains primarily in the hands of the Member States, Community law nevertheless has a significant impact upon the domestic systems of social protection. Indeed, we have grown used to the idea that the European Union now constitutes a multi-level welfare system characterised by a complex combination of local, national and Community policies. This is sometimes expressed in the notion that the Member States are now ‘semi-sovereign welfare states’ whose choices about how to provide for the social well-being of their own citizens are increasingly constrained not only by obvious factors such as the demographic pressures posed by an aging population and the need to compete within the globalising economy but also by the pervasive influence of the Union – which has not, however, evolved into a ‘newly sovereign welfare state’ determining for itself the conditions under which we pay taxes and receive benefits. As a result, the idea of social solidarity can no longer be treated simply as a national or local monopoly. It also has a vital Community component. When analysing this Community component, it is perhaps inevitable that the Union lacks either any clear organising concept of social solidarity for itself, or any coherent approach to those national concepts of welfare provision with which it must interface. Instead, social solidarity trickles through different Treaty provisions in different forms and in different ways – creating a veritable kaleidoscope of welfare rights and principles. Within this kaleidoscope, it is tempting to focus on the Community’s contribution to multi-level social solidarity in negative terms, that is, how far the core Treaty provisions on economic policy threaten national choices about social protection. For example, domestic structures for the delivery of welfare benefits and services may be found to act as barriers to the effective operation of the Internal Market (under the provisions concerning the free movement of goods or services, and also the rules on competition law or state aids) and thus require objective justification under the appropriate public interest derogations. National welfare choices are also put under more indirect types of pressure by the process of European economic integration. For example, free movement might act as an invitation for undertakings to engage in social dumping, inspired by differences in the contributions and general taxation intended to fund national social security systems, in turn tempting the Member States to engage in a destructive cycle of regulatory competition which will eventually undermine high standards of welfare protection. Moreover, there are concerns that the Growth and Stability Pact intended to consolidate the final stage of monetary union may have a negative impact upon the financing and planning of the domestic social protection systems, when Member States prefer cutting back on welfare expenditure (rather than increasing taxes) as a means of meeting the excessive budget deficit threshold of 3% GDP. Against that background, the Union has often been accused of suffering from a form of ‘constitutional asymmetry’: the legal tools employed in pursuit of economic efficiency far outweigh those available in the cause of social justice – and have the potential to ride roughshod over the complex bargains struck by domestic actors in the exercise of their residual welfare competences. However, the kaleidoscope is much more nuanced than this analysis would suggest. In fact, Community law also makes a significant positive contribution to social provision within the European Union. Indeed, one can identify the emergence of new and peculiarly supranational models of solidarity which support and supplement (rather than threaten or undermine) the domestic welfare states. This chapter will focus upon one aspect of this dynamic contribution: the rights to free movement and equal treatment enjoyed by Union citizens who visit another Member State on a temporary basis. In particular, we will investigate how far such individuals should be entitled to claim access to welfare benefits provided by the host society on the same terms as own nationals or other lawful residents – and what sort of legal framework is emerging from the Court of Justice and the Community legislature to address this controversial issue. Many commentators champion the evolution of a ‘European social citizenship’, whereby the process of ‘ever closer union’ encourages novel expectations of social solidarity based upon the shared identity of Union citizenship. In the absence of extensive redistributive or harmonising competences in the sphere of welfare provision, the most effective mechanism by which the Community might realise such ambitions is by employing the principle of equal treatment to guarantee that migrant Union citizens are assimilated into the social protection systems of their host societies. However, this process of assimilation directly challenges the traditional link between an individual’s legitimate right to claim welfare support and her / his recognised membership of the Member State’s own solidaristic community – thereby raising questions about how far the common bond of Union citizenship can really act as a substitute for accepted ties of belonging based upon nationality or economic contribution. While the Court has already defined the basic parameters of this challenge as regards resident but economically inactive migrant Union citizens, the legal situation seems more uncertain when it comes to Union citizens who are merely visiting another Member State on a temporary basis. We identify two main models which could provide the basis for future developments. The first (and more orthodox) is an ‘objective justification approach’: all migrant Union citizens are entitled to claim equal treatment as regards all benefits falling within the material scope of the Treaty – thus forcing the host society in every case to defend restrictions on access to its social protection system, especially residency requirements, by reference to a valid public interest requirement and the principle of proportionality. The second (and more novel) is a ‘comparability approach’: temporary visitors should be entitled to equal treatment as regards benefits falling within the material scope of the Treaty only once it has been verified that they are in a comparable situation to own nationals and other lawful residents. In particular, when it comes to social benefits which represent an expression of solidarity by the domestic welfare community towards its own members, temporary visitors might well be found to be in a non-comparable situation; if that is the case any difference in treatment – including that arising from the application of a residency requirement – would not give rise to discrimination which the host state needs to justify. We will argue that the comparability approach has several significant advantages over the objective justification model. Moreover, the relevance of this comparability approach is not diminished even after the adoption in spring 2004 of Directive 2004/38 on free movement for Union citizens, which purports to address – but in our view, only incompletely – the relationship between temporary visitors and the host state’s social assistance benefits.