Citizenship and Solidarity in the European Union

From the Charter of Fundamental Rights to the Crisis, the State of the Art

by Alessandra Silveira (Volume editor) Mariana Canotilho (Volume editor) Pedro Madeira Froufe (Volume editor)
©2013 Conference proceedings 496 Pages
Series: Euroclio, Volume 77


This book attempts to address an important question: where is the European project going?
As Europe struggles with the most profound economic and social crises in recent history, what happens to the promises of freedom, democracy, equality and respect for the inviolable and inalienable rights of the human person proclaimed in the Preamble of the Treaty on European Union? How does the European Union intend to demonstrate its commitment to fundamental social rights at a time of widespread deregulation and an increasingly precarious labour market? How can we further enhance the democratic and efficient functioning of European institutions when there is a growing distance between citizens and political elites?
This publication is based on papers given at the international conference «Citizenship and Solidarity in the European Union – from the Charter of Fundamental Rights to the Crisis: The State of the Art», which took place in the School of Law at the University of Minho, Portugal, in May 2012. The line-up of contributors includes scholars from southern and northern Europe and Brazil, and together the papers constitute a lively and productive debate about the future of Europe.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Contents
  • Introduction (Mariana Canotilho)
  • Democracy, Solidarity and Crisis. Some Reflections on the State of Europe (Emilios Christodoulidis)
  • Citizens’ Legislative Initiative and Citizenship of Rights (Teresa Freixes)
  • Reconciling Integrationist Aspirations with Budgetary Realities. Citizenship and Solidarity in the Union legal Order (Jonathan Tomkin)
  • The Anatomy of Civic Integration (Dora Kostakopoulou)
  • Charter of the Fundamental Rights of the European Union and the Fundamental Rights in the Brazilian Constitution. A Question of Citizenship over the Focus on the Constitutionalisation of Brazilian Civil Law (José Rubens de Moraes)
  • Free Movement of Workers in Times of Crisis. Some Observations (Raúl Trujillo Herrera)
  • Equality in an Economic Crisis. Re-Writing Age Discrimination Legislation (Elaine Dewhurst)
  • Is the Area of Freedom Security and Justice a Factor of Development and Competitiveness in the European Union? (Nuno Piçarra)
  • Development, Competition and Global Administrative Law (Marcílio Toscano Franca-Filho)
  • The Euro of our Discontent (João Rodrigues)
  • Prospects for Social Europe. What Social Europe Can We Get? (Katarzyna Gromek Broc)
  • Tensions in the Multilevel Protection of Fundamental Rights. The Meaning of Article 53 EU Charter (Bruno de Witte)
  • European Identity, Citizenship and the Model of Integration (Francisco Balaguer)
  • Multiple Political Identities. Revisiting the ‘Maximum Standard’ (Leonard F. M. Besselink)
  • The Multilevel Context of Union Citizenship. The Right to Consular Protection as a Case in Point Title (Eva-Maria Poptcheva)
  • Transconstitutionalism. Brief Considerations with Special Reference to Latin America (Marcelo Neves)
  • Equality, Solidarity and the Charter in Time of Crisis. A Case Study of Dismissal (Catherine Barnard)
  • Protecting Fundamental Rights of Migrants in (Ir)Regular Situations During the Economic Crisis (Donatella Loprieno)
  • Health Equality, Solidarity and Human Rights in European Union Law (Tamara Hervey)
  • Citizenship and Solidarity in the European Union. From Brussels to Echternach? (Francine Mestrum)
  • EU Citizenship. New Questions in Need of an Answer (Dimitry Kochenov)
  • The Political Economy of European Deconstruction (José Castro Caldas)
  • Cultural Diversity, Citizenship, Migration Flows (Domenico D’Orsogna)
  • Cultural Diversity as a Political and Legal Challenge and a Basis for Humanism in Our Times (Jesus Prieto de Pedro)
  • Protection of Diversity and Legal Treatment of the Foreigner. The Italian Model (Franco Gaetano Scoca)
  • On Legal Auto-Immunity. Fostering the Combination of Systemic and Deconstrutive Critical Approaches to Hostile Diversity in Contemporary World Society (Willis Guerra)
  • European Constitutionalism in 2012. Times are Tough Again (António-Carlos Pereira Menaut)
  • Conclusions (Alessandra Silveira, Pedro Madeira Froufe & Mariana Canotilho)
  • Series Index

← 10 | 11 → Introduction


This book was born out of a question: where is the European project going?

What happens to the promises of respect for the inviolable and inalienable rights of the human person, freedom, democracy and equality proclaimed in the Preamble of the Treaty on the European Union under the current scenario of the deepest economic and social crisis of the last decades? How does the EU intend to show its attachment to fundamental social rights, in this time of an increasing precarious labour market, blurring of boundaries between employment and self-employment and demands of labour market deregulation? How can we further enhance the democratic and efficient functioning of the European institutions, when there is a growing distance between citizens and political elites? How is it possible to achieve the strengthening and the convergence of European economies and to promote economic and social progress, when all we hear from the European politicians are proposals of austerity programs that do not seem to be working?

Our first attempt to answer these questions took place in May 2012, at the International Conference on “Citizenship and Solidarity in the European Union – from the Charter of Fundamental Rights to the Crisis, the State of the art”, which took place at the School of Law of the University of Minho, Portugal.1 This publication includes the papers in which the oral interventions were based and a conclusion based in the transcriptions of the questions posed by the debaters. The panels and panel members of the Conference included many well-known and respected scholars, from Southern and Northern Europe, as well as Brazil, in what turned out to be a vivid and fruitful debate about Europe, the European integration process, the attacks to the European social model and the economic and social crisis.

In the present crisis scenario, European multilevel democracy is at a crossroads. The European Union has been accused of having a democratic ← 11 | 12 → deficit for decades, and now that it has become evident that the Euro problems may only be solved at supranational level, that deficit could undermine national democracies. Vital decisions need to be given back to citizens, or they risk loosing all legitimacy. Legal perspectives and legal challenges of the multilevel democracy in the context of the crisis must be discussed. At the same time, recent sentences of the ECJ have started to develop the concept of a citizenship of rights; this process confronts the European legal order with the meaning and scope of citizenship: is its purpose only to support the economic freedom of movement of economically active citizens, or does it correspond to a uniform catalogue of rights and duties, typical of a Union based on the rule of law, in which fundamental rights perform an essential role?

Trying to answer some of these questions about European democracy and citizenship, Emilios Christodoulidis writes about democracy, solidarity and crisis, in a careful consideration of the meaning of the terms “citizenship and solidarity” in the current moment. He also asks what democracy do we want in Europe and how does the current crisis in the Eurozone help us to think about some of the proclaimed goals of European integration. Teresa Freixes tells us about the citizens’ legislative initiative, in an attempt to draw attention to the legal instruments that may help us build an effective citizenship of rights and Jonathan Tomkin tries to understand how it is possible to reconcile integrationist aspirations with budgetary realities. Dora Kostakopoulou describes the anatomy of civic integration in Europe and, finally, José Rubens de Moraes reflects about some of the similarities and differences between the European Charter of Fundamental Rights and the bill of rights of the Brazilian Constitution.

The crisis we are now facing started as a financial and economic crisis, it is not possible to think about solutions without addressing questions about competitiveness and development models. The problems that the European Union faces impose new challenges to the integration process, mainly in relation to the dimensions of citizenship and solidarity introduced by the Charter of Fundamental Rights. The European Union awakes to the necessity of economic governance based by principles of budgetary, financial, fiscal and social security convergence, aiming to promote competition and a unified and sustainable development of its regions, assuring the livelihood of the European social standard – something that a purely (and only) monetary governance cannot do. It seems inevitable the deepening of the federative components of the European integration – but through which instruments? Therefore, it is relevant to discuss, bearing in mind the basic notions of European citizenship and European solidarity, the sustainable solutions for the complexities of the problems we are facing, “without ever mistaking hardships for failures” – as wisely taught by Jean Monnet.

← 12 | 13 → Trying to address some of these problems, Raúl Trujillo Herrera speaks about the questions raised by the free movement of workers in times of crisis, and Elaine Dewhurst warns us about the difficulties that will arise in an ageing Europe, and the need to encourage the full participation and citizenship of older people by re-writing age discrimination legislation. Nuno Piçarra poses the question of whether an area of freedom, security and justice may be regarded as a factor of development and competitiveness, and Marcílio Franca-Filho draws our attention to the relationship between these aspects and global administrative law. Analysing what have been the results of the monetary union so far, João Rodrigues makes a critique of the European political economy and, finally, Katarzina Gromek Broc writes about the prospects for social Europe.

The third part of the book is dedicated to questions related to multilevel constitutionalism and the European political identity. The expression “multilevel” in the European Union context, refers to the reflexive interaction of different legal orders living in the same political space – and it implies a systemic network to solve the common problems. This is an interconnecting model which derives from the trans-nationalization/trans-territorialisation of the legal problems and unfolds into a multiplicity of perspectives concerning the solution of those problems. This phenomenon is more visible in the field of fundamental rights, because their protection at the European Union level is dragged to the sphere of action of Member States whenever they apply EU law – and that standard of protection will co-exist with the standards of national Constitutions and of the European Convention of Human Rights, giving origin to a kind of “multilevel protection of fundamental rights”, that is directed by the principle of the highest level of protection (Article 53 ECFR). Therefore, the EU multilevel system is more sophisticated than other current federative systems. Then, being true that the “bills of rights” have consequences on the “federalizing process” (because it promotes the equalization of the citizens’ legal positions in the whole system), it is important to discuss if we are in the presence of an European political identity, able to mobilize the European citizens beyond the State.

With these subjects in mind, Bruno de Witte discusses the tensions in the multilevel protection of fundamental rights, namely the meaning of Article 53 of the EU Charter, while Francisco Balaguer warns us about the importance of reinforcing European constitutional law, which is part of the European identity, in order to effectively deepen citizenship and build a better model of integration. Leonard Besselink revisits the “maximum standard”, in a reflection about multiple political identities and Eva-Maria Poptcheva presents the right to consular protection as an example of the multilevel context of Union citizenship. Finally, in a more “global” approach, Marcelo Neves drives us through his theory of transconstitutionalism, with special references to Latin America.

← 13 | 14 → Part four of the book is about equality and solidarity, the most forgotten promises of the integration process in this crisis framework. In fact, the principles of equal treatment and non-discrimination are at the heart of the European Social Model. They represent a cornerstone of the fundamental rights and values that underpin today’s European Union. The European Union has known significant achievements in the field of equal treatment and non-discrimination and its legislation has significantly raised the level of protection against discrimination and has acted as a catalyst for the development of a more coherent, rights-based approach to equality and non-discrimination. However, there is a huge dimension of equality that is usually forgotten in the European discourse on non-discrimination: economic (in)equality. In 2009 (and therefore not reflecting all the consequences of the austerity policies that followed the sovereign debt crisis), the overall at-risk-of-poverty rate for the EU-27 was 17%, but more than 28% of single females and 25% of the households composed of two adults and three or more dependent children were in that situation. The problem would be far worse without social transfers. For this reason, the debate on poverty has to be a debate on equality and solidarity policies, largely affected by the measures imposed to fight the economic crisis, which have seriously wounded fundamental rights and made income inequality skyrocket.

The authors challenged to think about these questions have chosen to address several different dimensions of social policies. Catherine Barnard writes about dismissal and EU law, while Donatella Loprieno describes many of the problems faced by migrants in (ir)regular situations during the economic crisis. Tamara Hervey debates health equality and human rights in the EU today, and Francine Mestrum makes interesting considerations about solidarity, poverty and social policies in the Europe of the 21st century. Dimitry Kochenov poses important questions in need of an answer about European citizenship, and José Castro Caldas examines the political economy of European deconstruction.

The book’s final part is about culture and diversity, which are fundamental elements of the European project and identity. According to the Treaties, the EU contributes to the development of culture(s) in Member States, respecting their national and regional diversities, but highlighting their common cultural background. There is an underlying idea of a common cultural matrix that allows for very different singular expressions. In this context, it is important to respect cultural diversity, while combining it with the construction of a unity that identifies Europeans. Maybe the biggest challenge is to know the other: surprisingly, Europeans know very little about each other. Therefore, getting to know other mentalities and behaviours is absolutely necessary to avoid undesirable nationalism. But how can we build a common feeling of belonging in Europe? Can ← 14 | 15 → the European cultural policy be mobilizing enough? Through what kind of concrete cultural policies? On the other hand, and in what regards the issue of culture, it is also necessary to discuss the question of immigrants and their integration. The EU lacks a serious and common immigration policy that faces all the difficult questions. It is urgent to develop alternatives to the actual state of affairs, namely to measures that are serious violations of human rights, like the detention camps. What migration policies for the Europe of the 21st century?

Thinking about these questions, Domenico D’Orsogna writes about cultural diversity, citizenship and migration flows. Jesus Prieto de Pedro describes cultural diversity as both a political and legal challenge and the basis for humanism in our era, while Franco Gaetano Scoca examines the Italian model for the protection of diversity and the legal treatment of foreigners. In a more philosophical approach, Willis Guerra addresses the problem of hostile diversity in the contemporary world society and, finally, António-Carlos Pereira Menaut makes sharp remarks about European constitutionalism in 2012. Times are tough again, he warns us. May the papers and debates transcribed in this book foster and contribute to democratic debate, because only democracy and constitutional limits to the exercise of political and economic power will guide us out of these turbulent waters and allow us to recover the promises of the European project.← 15 | 16 →


1See the Conference website http://www.cedu.direito.uminho.pt/Default.aspx?tabid=14&pageid=102&lang=en-US.

← 16 | 17 → PART I


← 18 | 19 → Democracy, Solidarity and Crisis.

Some Reflections on the State of Europe


University of Glasgow

We are invited to think about the European Union in the throes of crisis; or perhaps, from a legal-theoretical point of view, through the prism of crisis. What does “citizenship and solidarity” mean in the current moment? What democracy? And how does the current crisis in the Eurozone, from which we appear incapable of emerging, help us to think about solidarity and democracy?

So let us begin with crisis, and take it seriously, not, that is, as the opportunity it is with increasing frequency referred to, opportunity to “get our house in order”, or more grandly to rethink European citizenship, but as the human catastrophe it has visited to the people in the Southern States of Europe, and as a Greek citizen speaking in Portugal, this appears to me to have a double resonance. “Greece heading for a clash with its lenders” read the Editorial of the Financial Times the morning of this lecture, as Greek stocks fell to a 20 year low in the wake of the inconclusive Greek election. The unlikely recipient of the mandate to form a government, the young Euro-communist leader Alexis Tsipras, suggested that the Greek vote had declared the “barbarous austerity programme” imposed on the Greeks “null and void”. If in government, he said, his party would abandon the bailout agreement, default on the debt, or at least call a moratorium on repayment, reverse the appalling recent labour reforms, and put the banking sector under State control. This did not go down well with the champions of neoliberal austerity. The editorial of the FT reads: “The EU has gone as far as it can to try and help Greece. If there is not the political will in Athens to do what is necessary … it is pointless to continue”.

Let us remain with this invocation of “political will” and its lack. Since Rousseau at least the democratic expression of the general will and the political representation of a people are constitutively linked. What ← 19 | 20 → does it mean to seek “political will” outwith the democratic expression of a people who, in the May election at least, overwhelmingly voted to oppose the worst austerity programme in the post war history of Europe and to defeat a government that had committed them to it? What this other “political will” brings into the picture involves no demos; the references (in the FT at least) is to the “forbearance of the creditors”. However that is understood the invocation is to a political will that circumvents the national demos and the expression of its democratic mandate.

I do not want to delve too long in this, although I will pick it up again briefly in the next section. But I raise it because it poses serious questions about democracy in the political and constitutional imaginary of Europe in the early 21st century. The customary entry point for constitutional theorists to talk about democracy is through the concept of constituent power. Constituent power is about the possibility of a people of initiating something new. On the one hand then, the notion of constituent power marks our ability, as a people, to break with what is already constituted. On the side of the constituted is provided the means to “recognise” that “break” with the situation as it stands. Somewhere along this paradoxical articulation, along this founding asymmetry, lies the “democratic” impulse as a moment of “self-definition”.

Now, self-definition may appear a million miles away from our current stunned impotence before the financial meltdown. As the Continent reels in the throes of crisis, its precarious pact is threatened by successive democratic elections. A legally enshrined fiscal pact has been “agreed”, that curbs the budgetary sovereignty of elected governments. The economic prescription of the governing class of Europe has repeatedly come up against popular anger and the opposition of the electorates. In the Netherlands, in the Czech Republic and in France, those who rammed through the austerity programmes faced electoral defeat. Additionally, in the past two years, as a result of the debt crisis the governments of Ireland, Portugal, Spain, Greece, Finland, Slovakia and Italy have fallen. And yet, even where the opposition has been most vocal and most vehement, a strange sense of democratic defeatism prevails. There are many ways to thematise these developments. I would suggest that there has occurred a striking split in Europe’s democratic imaginary. On the one hand we have an alarming subjection of the political to the economic, in terms of measuring the ‘success’ of political societies in terms of satisfying rating agencies and financial investors. We will say more about the split in what follows. On the other hand the recent agitation has brought to the fore a different form of direct democracy, one that becomes increasingly hard to contain in formal political transactions, one that directly expresses hostility to the political system as such and finds expression in anti-institutional forms. As Stewart Motha (2012, 3) put it in a recent article:

← 20 | 21 → A common feature of recent political protests from Syntagma Square in Athens to Zuccotti Park in New York has been the refusal to be “political” in the conventional sense of protesting under the banner of established political parties, or organising through established movements with corporatist ties to the state such as trade unions. … In what terms might we re-articulate the problem of being political arising out of these political movements?

Democratic Simulation

What is perhaps more troubling than the existence itself of the perennial “democratic deficit” in Europe is how easily we have come to live with it, and how passively we have received its gradual radicalisation. Take for example the recent debacle, when the Greek Prime Minister suggested he seek a democratic mandate from the Greek people regarding the terms of the “bailout”, and after an unprecedented humiliation at the Cannes G20 summit in November 2011, was “removed” by Europe’s directorate, having been forced to retract his suggestion. Leaders were “understandably alarmed,” adds one commentator, “at the mere mention of a referendum: the EU had scarcely escaped unscathed from popular consultations of this kind, held in immeasurable better conditions than those of Greece”.1

What does it mean to think about the common good in Europe (and the expression of its people’s political will) as reconcilable with such degrading, to come to accept it as inevitable, if not in extremis actually as legitimate? In the broader picture, it is undoubtedly the case that the coordinates of legitimation have shifted away from their grounding in democracy and closer to the language of efficiency or “steering”, though again “steering” too appears to have come unmoored from the societal dimension, circuited instead to the shoring up of financial markets. We have here, then, a double slippage: from democracy to steering and from steering to maximising financial returns in global markets. For now let us stay with the first slippage, the loss of the language of democracy.

Perhaps the first question to ask about it, is what exactly was lost? In his important book Contesting Democracy: Political Ideas in Twentieth-Century Europe (2011), Jan-Werner Műller reminds us that European attitudes towards the political role of “the people” have been marked by ambivalence throughout the last century, and especially since the war. As he summarised it recently:

I want to advance the historical argument that insulation from popular pressures and, more broadly, a deep distrust of popular sovereignty, underlay not ← 21 | 22 → just the beginnings of European integration, but the political reconstruction of Western Europe after 1945 in general. (Műller, 2012, 40)

This mistrust was played out spectacularly in the misadventure that was the ratification of the Constitutional Treaty, where the logic of democratic simulation reached its climax, and where the emphatic “no’s” of the referendums translated into an a different form of constitutionalisation by treaty of a different form.

If Műller makes the argument against democracy, or at least direct or popular democracy, on grounds of Europe’s history and dominant cultural background, Giandomenico Majone famously makes it on grounds of efficiency and of maximising performance. The transferral of power to unelected bodies, chiefly to committees of experts, and his emphasis on steering and outcomes, is well known. Unconcerned with democratic input and in fact gaining its legitimacy from efficiency rather than democratic participation, Majone has consistently analysed the political evolution of the EU, at all levels of authority, toward the development of a regulatory state (Majone, 1996; 2009). The EU is simply the culmination of this generic process whereby the imperatives of economic efficiency under conditions of capitalist competition compel political actors to delegate power to agencies composed of experts, independent of political parties or legislative interference. But as commentators have recently noted, a growing “politicization” of the EU’s activities has thrown into question Majone’s comforting notion that “non-majoritarian” decision-making among enlightened, independent, growth-promoting technocrats would suffice to legitimate its existence. And it is not unfair to say that in recent work (2009) Majone himself appears increasingly unsure of whether the model does indeed ensure efficiency.

Customarily at the antipode of such technocratic thinking stood the democrats of the “deliberative turn” with Habermas at the helm. But even with Habermas we now see a convergence which would initially have seemed unimaginable. Against the instrumental systemic steering mechanisms of the technocratic imagination, Habermas had famously argued for a deliberative public sphere, and this stance, with its grounding in the “deliberative turn” that guaranteed at once both political participation and the truth of its deliberative outcomes, was endorsed by proponents of European integration, of global democracy, of the various forms of cosmopolitanism, etc. He had argued this against Luhmann in their important exchange in 1971, a debate that he was largely seen as having won, and which largely made his reputation in Germany. And yet, even this champion of democratising the public sphere has now significantly lowered the threshold for what counts as democratic.

How to understand this trajectory of Europe’s foremost democratic theorist? Habermas’s suggestion for a constitution as the consolidation of ← 22 | 23 → a European legal order is substantively premised on (i) a particular political culture; (ii) a mode of communication: as public sphere imbued with transparency and democracy; and (iii) a social post-war social democratic inheritance: commitment to welfare, rights, personal security. At least that is how things stood in 2006. But since then we have had Ach, Europa in 20082 and, hot off the press, Zur Verfassung Europas in 2011. Anderson comments that where in the 2008 Habermas had attacked the Lisbon Treaty for failing to redress the democratic deficit of the EU, “or offer any moral-political horizon for it”, once the Treaty was pushed through he has been “trumpeting” it as “no less than the charter of an unprecedented step forward in human liberty, its duplication of the foundations of European sovereignty in at once citizens and peoples of the Union, a luminous template for a parliament of a world to come”. (Anderson, 2012, 51)

If the Treaty of Lisbon was indeed rammed through to circumvent the negativity of the expression of popular will, it is still “blazing a trail to the cosmopolitan community of tomorrow”. (Anderson, 2012, 52) But there is a more insidious side to this argument, a kind of spill-over of economic into political capital. It relates to a “Hegelian moment” in the most recent book, when the evils of maximising financial returns for capital at the expense of peoples’ livelihoods and lives, is taken to be related in the twists and turns of the “cunning of economic reason” (in Habermas, 2011, 77) to a certain cosmopolitan awakening. I do not want to make too much of this. But I still want to insist on asking: why this telos for Europe, and this teleology? A teleology that takes as milestones of the route to political union the non-negotiable priority to entrench the protection of needs and secure the profit margins of financial-asset owners. In the slippage from politics to economics, in the measuring of the former against the latter in terms of performance indicators and market confidence ratings, lie the seeds of a new severe crisis of democratic legitimacy.

The question that motivates this line of questioning is the question about constituent power, and the slippage we tracked above is precisely a trajectory of the loss of the democratic or the constituent. Is it reasonable to claim, as Miguel Maduro does, “a low intensity constitutionalism” for Europe as concession to the absence of “a true pouvoir constituant” understood as “the power of the polity to define its own destiny”? (Maduro, 2005, 336) As a question of conceptual analysis, then, can constitutionalism in a “low-intensity form” survive the disarticulation of its constitutive distinction (its guiding distinction) and the sacrifice of the “constituent” pole? Let us be clear that it cannot. Constitutionalism is the achievement of the holding together of a political and a legal register, ← 23 | 24 → where the former involves precisely what Maduro denies his “low intensity” variety.

Economic Solidarity

As Europe watches over the pauperisation of the its peoples of the periphery (the four faltering countries sometimes grouped in the literature under the acronym ‘PIGS’) with renewed dispatches of austerity measures, what remains of the aspiration of economic solidarity that once was seen as underlying the common plight of the peoples of Europe? And if, for a moment we assume the oversight is benign, what forces of solidarity could be marshalled under current conditions of functional differentiation and the gaping growth asymmetry between northern and southern states? The refusal to “pay for the Greeks” becomes the populist motto that underlies political accountability (as in Germany), or wins elections (as in Finland). The flip side of this nationalist politics is the rise of an unprecedented hostility of the indebted toward their debtors. What is remarkable in all this is how quickly the much-agonised over creation of a European demos has come undone.

I would suggest however that although the effects of the undoing are currently felt more keenly than ever, there is something about the architecture of the European Union that undermined economic solidarity from the outset.3 In the genealogy of Europe’s constitutionalism there are two key moments of what Karl Polanyi would identify as the “disembedding” of the economy from (European) society (Polanyi, 1944). The first is the separation of the “economic” from the “social” as a structural feature of the set-up of the European Community. The second involves the post-Maastricht neo-liberal turn. From the very beginning the economic constitution was conceived as supra-national and the social constitution as national. In that sense the states of Europe were given the task of providing protection to the exposure to the market system run at supra-national level. With the neo-liberal turn, and despite the loud proclamations about the “social market”, there has been an acceleration of commodification and a hollowing out of social protection whose radicalisation has generated waves of “Europhobia” across the Continent. In the process “action plans”, the Social Charter, any form of meaningful “social dialogue”, etc., have been gradually undercut.

When it comes to the “social” question, there will always arise the question over the now seemingly lost opportunity to claim a unity for Europe on the back of a common commitment to social democracy and welfarism which was undercut ab initio by the decision to fast-track ← 24 | 25 → capital integration at the expense of social protection. Fritz Scharpf, so thoughtful amongst many other observers of European integration, reflects on the separation of economics from social policy as foundational premise of the genesis of the European community and asks: “Where would we be now if in the 1956 negotiations leading to the treaties of Rome and the creation of the EEC [the French line had prevailed] making the harmonisation of social regulations and fiscal burdens a precondition for the integration of industrial markets”?4

The relevance of this missed opportunity for a social-democratic Europe has acquired a new urgency. While with Article 3 (3) TEU the (highly competitive) “social market economy” was formally introduced into Europe’s constitutional parlance to “correct” the neoliberal tilt in the constitutional project,5 the possibility of a social Europe, or a “re-socialised” one, remains painfully unattained and increasingly unattainable. As the Continent now reels in the throes of a crisis that drives some economies “productively” while devastating those of the periphery, one has to ask whether purportedly aspiring to build Europe, as so often stated in the past, on the ideal of economic solidarity was ever actually seriously entertained.

Which Europe?

Let me end with a disquieting suggestion, but also by alerting to an opportunity that arises now, first to appreciate the gravity of the crisis, then to put to question and to think anew.

The disquieting observation is that, crisis-prone, bereft of ideals, limping from social to democratic deficit and back, driven by a vision of economic growth without economic solidarity, and somehow despite its best theorists’ best efforts, the European constitutional project nevertheless appears to have been successful in fashioning itself as a constitutional settlement a posteriori. The crisis appears on a certain register and level as productive in that sense. For those who entertained a different vision for Europe the problem becomes how to deal with this “success” of a Europe whose constitutional settlement appears not only to withstand the crisis, and to fuel its resolve to push the neo-liberal agenda even further. Could it be that our political vocabularies ill-equip us to deal with the consolidation, where the categories at our disposal are either constitutively complicit with the crisis or at least exhausted to the point where they can no longer deliver us from it? That is what the discussion of constituent and constituted power is ultimately about. And that question is ← 25 | 26 → what the spectre of crisis throws into relief; and why crisis might still be an opportunity. More urgently than before, it alerts us to the limits of attempting to resist the situation within given modalities and economies of representation.

Above all it raises the question insistently of whether the course that we have been so relentlessly set on allows for any pause, reflexivity or reversal. There are of course very different questions, and very complex ones, and I can only hope to raise them in a preliminary way here.

Take the latter first: reversal. Will acts of resistance to the European project, simply be markers on what, unavoidably, will have been the route to it? What of the “no” of the referendums, the agitation of the enragés of the periphery? Acts that locate themselves at the point of coupling between the peoples of Europe and “their” Constitution, and by extension of the coupling of politics (constituent) and law (constituted)? Up to this point, though of course one cannot predict what popular agitation may produce in the near future, protest has had little effect, ruptures have been sealed over through a silencing of democracy and the displacement of representational structures (in Italy and Greece) and no departures are envisaged from the intractable, directional, inescapable route towards the European economic Constitution, as over-determining integration, understood exclusively in its market form. A certain messianic logic undergirds it and guarantees the unity of the process.

What of reflexivity? What possibilities are available for scrutiny of the type that might allow the project to turn back upon itself to query its foundational presuppositions, in the face of catastrophic consequences? It may be that such a form of reflexive thinking is the victim of the crisis as a consequence of what systems-theorists have recently called the “darker side of functional differentiation”.6

The last point about pause I borrow from Hartmut Rosa’s fascinating Speed of Global Flows and the Pace of Democratic Politics. Rosa argues that the speed of change, or the dynamics of society, has to be slow enough for democratic and deliberative political processes of will formation and decision-making to actually be effective, or for politics to actually control (or steer) social developments and set the pace. Beyond a certain temporal threshold, the forces of society are too strong for democratic political self-determination, and undercut collective will-formation, deliberation and action. Drawing on both John Dewey and Sheldon Wolin, Rosa argues that:

today, ironically and most significantly, if the distinction between left and right has retained any discriminatory power at all, “progressives” tend to ← 26 | 27 → sympathize with the advocates of deceleration (stressing political control of the economy, democratic negotiation, environmental protection, etc.), whereas “conservatives” have become strong defenders of the need for further acceleration (embracing new technologies, rapid “free” markets, and fast administrative decision-making). Progressive politics clings to the idea of a political shaping of society and therefore tries to slow down economic and technological change, whereas so-called conservative (or neo-liberal) politics is advocating further social acceleration by renouncing the idea of political (or bureaucratic) control of societies. Thus, speed today has become a center of ideological battle, with neo-liberals and neo-conservatives accusing social democrats and leftist liberals of pursuing backward oriented, anachronistic and protracting policies, while “progressives” very often explicitly call for a slowdown of the pace of social life and change.

“How can a public be organized, we may ask, when literally it does not stay in place? Without abiding attachments, associations are too shifting and shaken to permit a public readily to locate and identify itself”, noted John Dewey in 1927. This then is a plea for slowing down. It is a demand that the growth compulsions of an economic system running amock be reined in in the name of deliberation and democracy. We could raise the stakes even more. Formulated in philosophical (and abstract) terms: social acceleration entails a condensation of our episodes of action and experience that undercuts our capacity to relate the flux of “experience” to a sense of being in history, of the continuity of identity and, in the present context, of the Europe we find ourselves in and the one that it is becoming.


ANDERSON P., “After the event”, New left Review, 73, 2012, pp. 47–60.

DEWEY J., The Public and Its Problems, Swallow Publications, 1957/1927.


ISBN (Softcover)
Publication date
2014 (April)
freedom equality respect democracy
Bruxelles, Bern, Berlin, Frankfurt am Main, New York, Oxford, Wien, 2013. 496 p., 3 figs., 2 tabl.

Biographical notes

Alessandra Silveira (Volume editor) Mariana Canotilho (Volume editor) Pedro Madeira Froufe (Volume editor)

Alessandra Silveira is Professor of European Law at the University of Minho, Portugal, where she also directs the Centre of Studies in EU Law (CEDU) and the Master’s degree in EU Law. She holds a Jean Monnet Chair linked to the project «Citizenship of rights: European citizenship as the fundamental status of nationals of the Member States». Mariana Canotilho has been Legal Adviser to the President of the Portuguese Constitutional Court since January 2013, and Assistant Professor of Public Law at the University of Coimbra, Portugal, since 2003. She is a member of CEDU (the Centre of Studies in EU Law) at the University of Minho, Portugal. She also collaborates with the Peter Häberle Research Centre on Constitutional Law at the University of Granada, Spain. Pedro Madeira Froufe is Professor of European Law at the University of Minho, Portugal, where he is also a member of the Centre of Studies in EU Law (CEDU). He is the Coordinator of the Master in Judiciary Law at the University Jean Piaget (Luanda, Angola). He is the author (and co-author) of several texts on European Law, Competition Law and Consumer Credit Law, and he also lectures frequently on the same topics in Portugal, Spain and Brazil.


Title: Citizenship and Solidarity in the European Union