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Chapter 5 - Free Movement of Persons and European Solidarity. A Melancholic Eulogy

Published online by Cambridge University Press:  22 September 2018

Stefano Giubboni
Affiliation:
Professor of Labour Law at the Department of Political Sciences of the University of Perugia.
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Summary

‘But people loved darkness instead of light.’

John, III, 19

PROLOGUE

For almost fifteen years, the epic of the constitutionalisation of the European citizenship was based on the famous promise of ‘a certain degree of financial solidarity’ among the nationals of different Member States. The idea that a Union citizen could have access to a new ‘status of social integration’, directly defined at the supranational level starting from a fundamental freedom of movement, actually seemed to be able to open up a new constitutional dimension to European citizenship, finally able to transcend the nation States’ particular allegiances in order to revive and expand the universal and ‘omni-inclusive’ promise of a society of free and equal individuals based on the jus-naturalistic foundations of modern citizenship.

Such a process of constitutionalisation of the weak provisions on citizenship introduced by the Maastricht Treaty has been carried out by the Court of Justice along two convergent trajectories, beginning with the path-breaking case of Martínez Sala.

Along the first trajectory a new universal status for transnational access to social rights on an equal footing with the nationals of the host country was progressively attached to the freedom of the (economically inactive) European citizen to move to and establish residence in another Member State. As a result of this, the main feature of this first jurisprudential movement can be identified in the fact that the Court of Justice has progressively extended those same powerful mechanisms of de-nationalisation (and partly of de-territorialisation) of social citizenship rights to every citizen of the Union qua talis.

These mechanisms had originally been reserved by the Treaty of Rome to economically active persons, and to workers in particular, as a fundamental means for the functional integration of the common market. The fragility of this first ideational pillar of such a sophisticated endeavour as making European citizenship the fundamental status of the individual in the European Union's constitutional order is probably due to the intrinsic contradiction pervading the conceptual categories used by the Court for such an ambitious purpose.

Type
Chapter
Information
Residence, Employment and Social Rights of Mobile Persons
On How EU Law Defines Where They Belong
, pp. 75 - 88
Publisher: Intersentia
Print publication year: 2016

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