Solidarity in the Case Law of the European Court of Justice – Opportunities Missed?

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 chapter asks what, if anything, the case law of the Court of Justice (ECJ) contributes to the dis-cursive exegesis of solidarity as a principle of EU Constitutional Law. In order to answer this ques-tion, 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 Mar-ket, rejecting limiting effects of national solidarity). The chapter identifies a number of missed op-portunities, and a high degree of in-consistency. A more assertive and consistent approach to soli-darity could, however, contribute to supporting a more inclusive constitutional discourse on Euro-pean integration than the mere reliance on liberal constitutional principles.

Keywords: European Court of Justice, Solidarity, New Legal Realism, Social Ideal, Discourse