The Impact of Solidarity on Free Movement of Citizens
The importance of solidarity for the regime applicable to free movement of citizens is confirmed by the statement that the EU “shall combat social exclusion and discrimination, and shall promote social justice and protection [. . .]. It shall promote [. . .] solidarity among the Member States”.84 The solidarity principle could contribute to erode the two limits that still exist in the field of free movement of persons (i.e. level of economic resources and adequate sickness insurance). In fact, solidarity needs to be supported by legal provisions whereas only charity, being spontaneous, need not be institutionalized by rules and norms.85 Moreover; solidarity is often connected to economic, but not commercial aspects. As underlined by AG Fennelly, “[s]ocial solidarity envisages the inherently uncommercial act of involuntary subsidization of one social group by another”.86
The full acceptance of the free movement of EU indigents – i.e. regardless of the burden it entails for the public finances – presupposes the ability to distinguish the notion of ‘citizen’ from that of ‘migrant’.87 Member States nationals normally use the word ‘citizen’ to identify an individual coming from their same country whereas the expression ‘EU citizen’ is often used for persons coming from another EU country. The Charter looks at things from a different perspective setting out the rights of the EU (im) migrant as a citizen.88 The time seems ripe for the Courts to endorse this viewpoint: “for some basic social, economic, civic and cultural rights of individuals [. . .] the link to nationality of the Member States may be beginning to seem a little dated.”89The CFR contains rights which guarantee social security and social assistance (Art. 34) and access to health care (Art. 35). Its binding nature reassures EU citizens that the EU institutions and Member States will comply with the rights enshrined therein and possibly allow for an extension of the personal scope of free movement. In this regard, it should be recalled that the UK, Poland, and more recently the Czech Republic, have obtained a Protocol on the Charter. Art. 1(2) of Protocol No 30 states that “nothing in Title IV of the Charter [Solidarity] creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law”. The UK European Union Committee and the UK Constitution Committee affirm that this Protocol is not an opt-out but only an instrument capable of clarifying the Charter’s scope of application.90 On the one hand, this ‘explanatory protocol’ will cause a certain embarrassment for the national and EU judges.91 On the other hand, it could be argued that the fears of social tourism advanced by these two Member States demonstrate that the ‘needy’ EU citizens would actually be entitled to invoke the Title on Solidarity in order to be recognized (full) free movement rights. Therefore, access to public benefits and health care can hardly be considered a utopia. The indication that these rights are not justiciable could simply indicate that individuals cannot invoke Arts. 34 and 35 before national courts in Poland and in the United Kingdom, but does not prevent the respective domestic judges from declaring that the sufficient economic resources and the medical insurance requirements set out in the Directive, or other national provisions, are inconsistent with primary EU law. Furthermore, if we take into consideration that enlargement conditionality includes not only civil and political rights, but also economic, social and cultural rights,92 the refusal to respect these rights could represent a violation of the principle of loyal cooperation. This view is not in contrast with Art. 52(5) CFR, which states that the provisions of the Charter containing principles “shall be judicially cognizable only in the interpretation of [legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law] and in ruling on their legality”. Likewise, the distinction between rights and principles cannot stop national judges from discarding inconsistent internal provisions, even in the absence of direct effect93; principles “should instead act merely as useful yardsticks against which to measure the relative success (or otherwise) of Union/national regulatory activity.” 94
Access to Public Benefits: Art. 34 CFR and the Limit of Sufficient Resources
Art. 34(2) of the Charter states that “[e]veryone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices”. This Article, which has never been mentioned by the Advocates General or by the ECJ, could protect the rights related to free movement granting the same treatment to all EU citizens regardless of their economic status. Indeed this provision seems to contrast with the case law according to which short-term residents are excluded from access to public benefits. In the future the norm could be used as a lex specialis vis à vis Art. 21 TFEU95 to improve the free movement jurisprudence that, on the basis of Art. 18(1) TFEU, reserves the benefits granted to host State nationals to some Union citizens only. By the same token, it appears that access to student grants should be requested relying on Art. 34(2) CFR as well, even though, under the Lisbon Treaty, the EUCJ could consider the case pursuant to Art. 14 CFR, concerning the right to education.96It is noteworthy that the Citizen’s Directive, which codifies the most recent case law on the matter, indicates the cases in which an expulsion is allowed, clarifying the scope and grounds of the relevant measures. Giving priority to the individual rather than to the public finances, Art. 27(1) states that: “[t]hese grounds shall not be invoked to serve economic ends.” It follows that solidarity goes beyond national frontiers, which allows and promotes social inclusion of an EU citizen who is eager to move even if he/she is lacking economic resources.
The new TEU Preamble confirms the attachment to fundamental social rights, the will to deepen the solidarity between EU citizens and the need to facilitate free movement of persons. Therefore, Art. 34 CFR should be invoked in free movement cases to make this right truly effective. In fact, without the protection of social rights, the protection of other rights, such as civil and political rights, would remain theoretical.97 Union legislative acts must comply with these rights, since “respect for human rights is a condition of the lawfulness of Community acts”.98 Although the Member States show deference towards human rights, they have always contested the enforcement of social rights, denying residence rights to EU ‘needy’ citizens. This is not that surprising taking into account that national rules excluding EU citizens from social benefits granted to third country nationals have recently been declared consistent with Community law.99 In this regard, the Charter could bring about innovative interpretations capable of addressing the critical issues which still affect social protection in and by the EU.
Art. 34 CFR can also protect the Member States from abuses since it refers to persons moving legally within the European Union. Even though commentators suggest that the rationale of the expression is to exclude illegal third country nationals,100 the provision should be interpreted in such a way as to exclude Union citizens who have circumvented the law. The fact that the provision is also directed at EU citizens is confirmed by the circumstance that the text takes into consideration not only persons who are residing legally but also persons who are moving legally.
However, once a citizen is residing in another Member State, he/she should receive all the benefits granted to nationals of the host country or to other Member States nationals integrated within its society. A different solution would be in contrast with the principle of equalityand would downgrade the short-term resident to a sort of “second-class citizen”,101 who could legally reside but to whom the minimal financial means necessary to live in the society would not be granted.
84. Art. 3(1) TEU.
85.A.J. Menéndez, ‘The sinews of peace: rights to solidarity in the Charter of Fundamental Rights of the European Union’, (2003) 16 Ratio Juris 379.
86.Case C-70/95 Sodemare  ECR I-3395, AG Fennelly, para 29.
87. See n. 7 above.
88. E. Guild, ‘Citizens, immigrants, terrorists and others’, in S. Peers and A. Ward (eds.), The European Union Charter of Fundamental Rights (Hart Publishing, 2004) 234.
89. F.G. Jacobs, ‘Introduction’, in E. Guild (ed.), The legal framework and social consequences of free movement of persons in the European Union (Kluwer, 1999) 5. See also A.P. van der Mei, ‘Union citizenship and the “de-nationalisation” of the territorial welfare state’, (2005) 7 European Journal of Migration and Law 207, where it is underlinedthat ‘[r]esidence requirements, not nationality requirements, constitute the proper tools for regulating cross-border access to social assistance, student aid and other tax-funded social benefits schemes’.
90. House of Lords, Constitution Committee, 6th Report of Session 2007–08, ‘European Union (Amendment) Bill and the Lisbon Treaty: Implications for the UK Constitution’ (The Stationery Office Ltd, 2008) 35, para 136. However, the aim of this Protocol is mainly ideological, contributing to remove the constitutional value of the Charter since principles not shared by all the Member States cannot be defined as constitutional. From a practical point of view the effects seem to be less important (L.S. Rossi, ‘L’integrazione differenziata nel Trattato di Lisbona’, (2008) 1 Sud in Europa, n. 1, http://www.sudineuropa.net/articolo.asp?ID=317&IDNumero=31).
91. S. van Raepenbusch, ‘La réforme institutionnelle du Traité de Lisbonne: l’émergence juridique de l’Union européenne’, (2008) 43 Cahiers de Droit Européen 578.
92. A. Albi, ‘Ironies in Human Rights Protection in the EU: Pre-accession conditionality and post-accession conundrums’, (2009) 15 European Law Journal 49.
93. M. Cartabia, ‘I diritti fondamentali e la cittadinanza dell’Unione’, in F. Bassanini and G. Tiberi (eds.), Le nuove istituzioni europee. Commento al Trattato di Lisbona (Il Mulino, 2008) 105.
94. M. Dougan, ‘The Treaty of Lisbon 2007: Winning minds, not hearts’, (2008) 45 Common Market Law Review 663.
95. D.H. Scheuing, ‘Freizügigkeit als Unionsbürgerrecht’, n. 42 above, 788.
96. It is difficult to foretell the possible interpretation of situations falling in different Titles of the CFR. However, the choice of organising the Charter in ‘values’ could have concrete effects in balancing, interpreting and limiting fundamental rights (M. Cartabia, ‘I diritti fondamentali e la cittadinanza dell’Unione’, n. 93 above, 95).
97. B. Brandtner and A. Rosas, ‘Human rights and the external relations of the European Community: An analysis of doctrine and practice’, (1998) 9 European Journal of International Law 490.
98. Opinion 2/94  ECR I-1759, para 34.
99. Joined Cases C-22 and C-23/08 Vatsouras and Koupatantze, n. 1 above, para 53.
100. M. Borgetto and R. Lafore, ‘Article II-94’, in A. Levade, L. Burgorgue-Larsen and F. Picod (eds.), Traité établissant une Constitution pour l’Europe, Tome 2: La Charte des droits fondamentaux de l’Union, n. 41 above, 452.
101. K. Lenaerts and T. Heremans, ‘Contours of a European social Union in the case-law of the European Court of Justice’, (2006) 2 European Constitutional Law Review 107.