Solidarity and its limits for economic integration in the European Union’s internal market
| Date | 01 June 2018 |
| DOI | 10.1177/1023263X18769207 |
| Author | Graham Butler |
| Published date | 01 June 2018 |
| Subject Matter | Articles |
Article
Solidarity and its limits for
economic integration in the
European Union’s internal market
Graham Butler*
Abstract
Solidarityis applicable to multiple strandsof European Union (EU)law, including in the fosteringof an
internal market. Although the internal market has always held constitutional status, the objects that
underlie itcame about much later. The question of how solidarity,as a principle, value,and concept in
EU law has been present in the nurturing of this process is not fully apparent, given a lack of clear
methodology for when, and how solidarity is to be utilised. By delving into the treaties and the
jurisprudence of the Court, the normative bedrock of solidarity emerges; not just as a facilitator of
the internalmarket, but also for the purposes ofeconomic integration. The articledemonstrates that
solidarity inlaw can be a reason or justificationfor measures to promote the treaty-based aim of the
internal market.Yet simultaneously, it finds that solidarity is not an all-encompassing principle, value,
or concept in absolute terms, and has limits for utilisation in the spirit of European integration.
Conclusively, by demonstrating the limits of solidarity as a ‘legal’ principle, value, or concept, the
article asks whetherit is time to reassess the role that solidarity should play in EU law in the future.
Keywords
Solidarity, internal market, economic integration, Court of Justice, European Union
1. Introduction
The internal market is a political construct within European Union (EU) law, and thus, gives rise to
contestation.
1
Attempts to bolster it have happened at infrequent junctures in the history of the EU.
Most recently in 2011, the Commission published a ‘Single Market Act’, which began as follows:
* Associate Professor of Law, Aarhus University, Denmark
Corresponding author:
Dr. Graham Butler, Aarhus University, Bartholins Alle
´16, 8000 Aarhus C, Denmark.
E-mail: gb@law.au.dk
1. See, S. Weatherill, ‘The Several Internal Markets’, 36 Yearbook of European Law (2017), p. 125.
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(3) 310–331
ªThe Author(s) 2018
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DOI: 10.1177/1023263X18769207
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At the heart of the European project since its inception, the common market – which has now become
the internal market – has for over 50 years woven strands of solidarity between the men and women of
Europe, whilst opening up new opportunities for growth for more than 21 million European businesses.
An area of free movement for goods, people, services and capital, the internal market has been further
developed since 1993 by the con solidation of economic i ntegration, the Euro and solidarity and
cohesion policies. Today more than ever, it ha s become a part of people’s everyday life in the ir
professional and private activities and as consumers. It is the real growth engine within the European
economy.
2
Published in the midst of a financial crisis sweeping across Europe might not have been the
most opportune time on the Commission’s part for wanting to reinvigorate the internal market.
3
European solidarity has not been broadcast in the last decade of turbulent econom ic times in
Europe.
4
Yet, in the internal market’s growth through widening and deepening, the Union’s
underlying prospects, including basic values, amongst others, have stood firmly within the treaties.
Arguably, therefore, ‘an extended jurisdiction of [Union] market rules should result in an extension
of the values to be taken into account in applying those rules’.
5
Given this initial theory, ought the
principle, value, and concept of solidarity play a greater role in the nature of the Union as a legally
constructed marketplace? The young Union in its formative years may have seen a lack of soli-
darity and loyalty,
6
but much progress was made in later years, up to the point that began to see a
surmounting number of the EU’s own crises.
Solidarity emerges in multiple forms – as a principle, value, and concept – with interrelated
meanings. By looking at solidarity through a transnational prism, solidarity in Union law, specif-
ically internal market law, it can be seen to what extent it has catered for economic integration
through the internal market, and what its limits have been. The article is structured as follows.
Section 2 examines the history of solidarity, and its respective meanings and various forms of
understanding. Section 3 moves on to observe the notion in Union law, a nd determines how
solidarity, through primary law, has been historically placed, examining the purpose for which
it was intended, and how it manifested itself. Section 4 looks at solidarity in internal market law,
and sheds light on how it has been utilised in litigation at the Court of Justice. The analysis reveals
how in certain sectors of the internal market, solidarity has been seen as a key underpinning for
Union law as a whole, but as a specific principle, value, or concept outside a small number of niche
cases, the larger role has been far more limited. Subsequently, Section 5 divulges how solidarity
has played a role in European integration more generally, and finds that despite much confidence
being placed in the idea of solidarity, there is no cause for excitement for proponents of solidarity
to foster European integration any further than it already has. Conclusively in Section 6, the article
2. Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee
and the Committee of the Regions Single Market Act, Tweleve Levers to Boost Growth and Strengthen Confidence,
COM(2011) 206 final, p. 3 (emphasis added).
3. S. Weatherill, ‘Free Movement of Goods’, 61 International and Comparative Law Quarterly (2012), p. 541, p. 549.
4. J.H.H. Weiler, ‘Deciphering the Political and Legal DNA of European Integration: An Exploratory Essay’, in J. Dickson
and P. Eleftheriadis (eds.), Philosophical Foundations of European Union Law (Oxford University Press, 2012), p. 142.
5. M. Poiares Maduro, We The Court: The European Court of Justice and the European Economic Constitution: A Critical
Reading of Article 30 the EC Treaty (Hart Publishing, 1998), p. 165.
6. From the perspective of how it trickled into EU procedural law. H. Rasmussen, ‘Why Is Article 173 Interpreted Against
Private Plaintiffs?’, 5 European Law Review (1980), p. 112, p. 121.
Butler 311
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