Re Shaping the Paradigm of Social Solidarity in the EU: On the UK's Welfare Reforms and Pre- and Post-EU Referendum Developments

Publication Date01 December 2016
Date01 December 2016
AuthorRufat Babayev
DOI10.1177/138826271601800402
SubjectArticle
EJSS_2016_4.indb RE-SHAPING THE PARADIGM OF SOCIAL
SOLIDARITY IN THE EU: ON THE UK’S
WELFARE REFORMS AND PRE- AND POST-EU
REFERENDUM DEVELOPMENTS
Rufat Babayev*
Abstract
Th
e sense of social solidarity formed at Union level is manifested, broadly speaking,
in the very interchangeability of national solidaristic communities in the Union that
allows Union citizens to be affi

liated with the one of their residence. Initially widely
defi ned in light of Union citizenship, the prospect of such interchangeability has been
narrowed down in a trilogy of the Court’s recent rulings. With the primacy aff orded
to the black-letter provisions of Union secondary law without the need for further
proportionality assessment, the interchangeability of national solidaristic communities
seems to be confi ned to the extent of an economic contribution in a host Member State.
Th

e actual parameters of this factor as a criterion setting the threshold of membership
in a national solidaristic community are, in turn, being defi ned by Member States
themselves, oft en resorting to the narrow and exclusionary interpretation of Union
citizens’ rights. Th

e welfare reforms introduced in the UK in the period leading up to
the EU referendum vote, for instance, have re-shaped the extent of Union workers’ and
job-seekers’ rights by re-balancing them around the factor of economic contribution and
specifi cally targeting those who are not deemed to actually contribute in the UK. As a
result, fi xing the threshold of membership in a national solidaristic community in this
manner, both at Union and national levels, has created much uncertainty about the fate
of Union citizenship and Union citizens’ rights derived from the Treaty.

Keywords: economic contribution; job-seekers; social solidarity; welfare benefi ts;
welfare reforms; workers
*
Dr Rufat Babayev is a Lecturer in EU Law at Leicester Law School, University of Leicester. Address:
Road, Leicester, LE17RH; tel: +44(0)116 252 2338; email: rufat.babayev@le.ac.uk. He would like to
express his sincere gratitude to Robin White, Adam Cygan and the anonymous reviewers for their
comments. Th
e usual disclaimer applies.
356
Intersentia

Re-shaping the Paradigm of Social Solidarity in the EU: On the UK’s
Welfare Reforms and Pre- and Post-EU Referendum Developments
1. INTRODUCTION
Th
is article aims to explore the sense of social solidarity at Union level and its
transformation in the post-crisis austerity-driven economic environment and,
more importantly, as a result of the developments brought by the EU referendum
vote in the UK. With the Union’s lack of tax and welfare policies, the sense of social
solidarity formed at Union level is eff ectively realised by means of national solidaristic
communities in the Union. It is, in fact, manifested in the very interchangeability
of such communities, whereby Union citizens enjoy the freedom to affi
liate
with the community of their residence. Nevertheless, the actual extent of such
interchangeability has been at the forefront of various political and scholarly debates,
given that full-fl edged interchangeability runs the risk of undermining the delicate
subsidisation process that lays the foundation of national solidaristic communities.
Preliminarily reserved for Union workers due to their status as bona-fi de economic
contributors, the idea of interchangeability of national solidaristic communities
saw a change with the introduction of Union citizenship. Th
is was regarded as a
departure from the economic paradigm underpinning the threshold of membership
in a national solidaristic community.1 Nevertheless, recent developments suggest a
growing re-consolidation of the factor of economic contribution as a criterion for
determining the entitlement to welfare support in a host Member State. Pursuant to
the Court’s restrictive interpretation in a trilogy of recent rulings concerning Union
citizens who were not actually engaged in employment,2 the interchangeability of
national solidaristic communities has been confi ned by the extent of an economic
contribution in a host Member State. In particular, the inclusion within the circle
of benefi ciaries of the subsidisation process at national level seems to have become
contingent on being ‘earned’ within the circle of contributors of this process. Th
is also
fi nds support in the compromise reached in February 2016 on the resettlement of the
UK’s EU membership. Despite now being legally obsolete, it not only established the
‘emergency brake’ concept, but also demonstrated the European Council’s willingness
and the Commission’s endorsement to restrict Union citizens’ welfare rights before
they make a substantial economic contribution in a host Member State.
While the shift at Union level places an emphasis on the extent of economic
contribution, the actual parameters of this criterion are being defi ned by Member
States themselves, oft en resorting to the narrow and exclusionary interpretation of
Union workers’ and job-seekers’ rights. Th
is is evident, for instance, in the breadth
of the welfare reforms introduced in the UK in the period leading up to the EU
referendum vote. Given that they will most certainly remain in force until the UK
eventually leaves the Union, and the likelihood of other Member States embarking on
1
See, for example, AG Mazák’s Opinion in Case C-158/07 Förster [2008] ECR I-8507, para. 54.
2
Judgment of 11 November m2014, Case C-333/13 Dano, nyr; Judgment of 15 September 2015, Case
C-67/14 Alimanovic, nyr; Judgment of 25 February 2016, Case C-299/14 García-Nieto, nyr.
European Journal of Social Security, Volume 18 (2016), No. 4
357

Rufat Babayev
similar reforms, they are explored here. Th
e main question addressed is whether such
a national initiative complies with Union law, according to which Union citizens have
a fundamental right to seek and engage in work anywhere in the Union on the basis
of equality and non-discrimination on the grounds of nationality. It is argued that,
while some of the changes introduced by the UK government are in line with Union
law, it is diffi
cult to formulate this conclusion in general terms. Th
ere are aspects of
the reforms that either contradict Union law or whose compliance with it requires
further judicial clarifi cation. More conceptually, the reforms can be seen as a national
initiative intended to delimit the extent of Union workers’ and job-seekers’ rights by
re-balancing them around the factor of actual economic contribution as a criterion for
setting the threshold of membership in a national solidaristic community.
Th
e analysis in this article starts in Section 2 and briefl y outlines the contours
of the national and Union models of social solidarity. Section 3 then examines the
implications of the trilogy of the Court’s recent rulings that reshape the paradigm of
social solidarity formed at Union level. It is argued that these rulings re-consolidate the
factor of economic contribution as a criterion determining the entitlement to welfare
support in a host Member State. Section 4 explores the UK’s welfare reforms, which
are considered as an example of a Member State’s unilateral practice of redefi ning
the parameters of the factor of economic contribution.3 Th
is section is divided into
two parts. Part One concerns the status of a worker and the temporal limitations
imposed on its retention. Part Two, in turn, focuses on the category of job-seekers by
examining the amendments made to the eligibility criteria for Job-seeker’s Allowance
and other types of welfare benefi ts. Th
is article concludes in Section 5 by arguing that
the changing paradigm underpinning the sense of social solidarity at Union level,
although a welcome change for Member States, raises uncertainty over the fate of
Union citizenship and the rights associated with it and other Treaty provisions.
2.
NATIONAL AND UNION MODELS OF SOCIAL
SOLIDARITY AT THE CROSS-ROADS
Th
e idea of social solidarity is a key principle laying the foundation of a welfare
state system ‒ a form of a community whose members collectively choose to meet
certain social objectives that cannot be achieved within a private market setting.4
Th
is, in general, includes the assurance for all community members of a ‘level of
decent existence’5 in a range of eventualities involving but not limited to disability,
unemployment, dismissal or retirement.6 Th
e primary catalyst here is ‘the act of
3
For other Member States, see, e.g., Blauberger and Schmidt (2014: 1).
4
van der Mei (2003: 3).
5
Schuyt (1998: 298).
6
van der Mei, note 4 above: 4.
358
Intersentia

Re-shaping the Paradigm of Social Solidarity in the EU: On the UK’s
Welfare Reforms and Pre- and Post-EU Referendum Developments
involuntary subsidisation’,7 whereby the wealth obtained by some community
members is directed to meet the needs of others through the medium of public
institutions.8 Th
e eff ective realisation of such redistribution of wealth rests on two
strands. First is ‘the existence of a common identity, forged through shared social and
cultural experiences, and institutional and political bonds’.9 Th
is factor draws the
line between those who are considered as ‘outsiders’ and those who are considered
as ‘insiders’ in the operation of a solidaristic community.10 Second, the eff ective
redistribution of wealth requires the realistic management of community resources
through balancing the revenues generated and those...

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