5 - Solidarity and Equality in EU Law

Question 1

Questions surrounding the concepts of equality and solidarity? (3)

Answer 1

1/ are they values and/or legal principles?

2/ are there any limits?

3/ is there a connection between the 2?

Question 2

In which different areas of law can equality and solidarity be invoked? (4)

Answer 2

1/ citizenship

2/ internal market

3/ migration law

4/ competition law

Question 3

Definition of ‘legal principle’? (3)

Answer 3

1/ basic norm

2/ for general application

3/ beyond a specific legal context

Question 4

Main characteristic of legal principles?

Answer 4

They are not very context-specific

Question 5

When can one think of a legal norm as a legal principle? (2)

Answer 5

1/ vague and tricky area

2/ treaty text can arguably matter in this regard

Question 6

Regarding legal principles, what does the CJEU make a difference between? (3)

Answer 6

1/ general pcples of EU law

2/ other principles

3/ this is linked to hierarchy of norms in EU law

Question 7

In which treaty provisions can one find equality? (4)

Answer 7

1/ equality in abstracto (Arts. 2 and 8 TEU)

2/ equality as democratic value, implying the EU must respect and observe equality (Arts. 4(2) and 9 TEU)

3/ equality of citizens before the law (Art. 20 CFR)

4/ arguably also Art. 18 TFEU (prohibition of discrimination on grounds of nationality)

Question 8

EU must respect and observe equality of … ? (2)

Answer 8

1/ MS (Art. 4(2) TEU)

2/ EU citizens (Art. 9 TEU)

Question 9

What are the 2 types of equality that can be distinguished?

Answer 9

1/ formal

2/ substantive

Question 10

What are the 2 elements of the prohibition to discriminate?

Answer 10

1/ if situations are equal, treat them equally

2/ if situations are different, treat them differently

Question 11

What are the different types of discrimination/ (3)

Answer 11

1/ direct

2/ indirect

3/ reverse

Question 12

Characteristics of direct discrimination?

Answer 12

Formal limits to the application of EU law to a given situation/entity

Question 13

Characteristics of indirect discrimination?

Answer 13

No formal discrimination but the effects of direct discrimination

Question 14

Characteristics of reverse discrimination? (2)

Answer 14

1/ discrimination against members of a dominant/majority group in favor of minority/disadvantaged group

2/ allowed under EU law

Question 15

What is a difficulty surrounding equality? (2)

Answer 15

1/ question of when situations are equal

2/ difficulty of determining the meaning of ‘equal’

Question 16

What are the 2 cases related to students and equality, mentioned in the lecture?

Answer 16

1/ Dutch student transport carts => (in)direct discrimination?

2/ Access to universities (Bressol) => (in)direct discrimination?

Question 17

When can it be considered that the pcple of solidarity is applied? (2)

Answer 17

1/ when individuals get rights in a host MS

2/ and these rights cost money

Question 18

In which treaty provisions can one find solidarity? (3)

Answer 18

1/ in TEU common provisions

2/ in TEU Title V (external action and CFSP)

3/ in TFEU (immigration, energy, disasters)

Question 19

What principle is also a reflection of solidarity in the EU?

Answer 19

Principle of sincere mutual cooperation between the EU and MS

Question 20

What appears to be the most elaborate legal norm in terms of solidarity?

Answer 20

Art. 80 TFEU (migration law)

Question 21

How can solidarity within Art. 80 TFEU be approached?

Answer 21

‘Fair sharing’ of responsibility

Question 22

What could be considered to impose solidarity within field of EU migration law?

Answer 22

Binding mechanism for relocation

Question 23

What did CJEU rule in Slovakia and Hungary v. Council (2017)? (3)

Answer 23

1/ Council is required to give effect to the pcple of solidarity when implementing EU common policy on asylum

2/ proportionality of decision assessed in light of pcple of solidarity

3/ burdens must be divided btwn all MS as a rule bc pcple of solidarity governs EU asylum policy

Question 24

Difficulties related to solidarity and the social market economy? (4)

Answer 24

1/ can a market economy really foster solidarity?

2/ what does the term ‘social market economy’ even mean?

3/ how to balance solidarity and competition law?

4/ how to balance solidarity and free movement provisions?

Question 25

What was Brentjens case mainly about?

Answer 25

Workers solidarity (mandatory pension fund in monopolistic position, backed up by NL)

Question 26

What was the main finding of the Court in Brentjens? (3)

Answer 26

1/ solidarity in the present case requires refusal to let undertakings within the sector cherrypick the insurance pension funds they like 2/ monopoly of the fund is justified under Art. 106 TFEU 3/ competition law does not apply

Question 27

What were the 4 main questions in Brentjens?

Answer 27

1/ does Art. 101 TFEU set a competition restriction regarding collective agreement setting up a pension fund? 2/ can MS make such a collective agreement compulsory? 3/ is the pension fund an undertaking? 4/ is there an abuse of dominant position? must the pension fund comply with competition rules?

Question 28

What was the underlying question in the Laval case?

Answer 28

Should Swedish trade unions show solidarity with Latvian workers or with their own workers?

Question 29

What type of application of free movement provisions was made in Laval? (2)

Answer 29

1/ horizontal application 2/ i.e. btwn trade unions (not public authorities) and other negotiating entities

Question 30

In which instances can we ask ourselves whether solidarity was on the rise? (2)

Answer 30

1/ during financial crisis 2/ during pandemic

Question 31

What might we need for more solidarity within the EU?

Answer 31

A new social contract

Question 32

Takeaways of lecture? (4)

Answer 32

1/ equal treatment under free movement may lead to solidarity imposed on host States/their citizens 2/ solidarity is guiding pcple but elusive 3/ substance of solidarity may alter according to context 4/ solidarity is at times isolated from market rules and at times balanced with market rules

Question 33

Why was the position taken by the CJEU in para 57 of Brentjens strong?

Answer 33

It leaves measures considered to have a social purpose outside the scope of EU law

Question 34

What is the question left by para 57 of Brentjens regarding collective labour agreements with a social purpose? (2)

Answer 34

1/ do they fall outside the scope of Art. 101 TFEU by principle? 2/ does the answer to the question above vary from case to case?

Question 35

What was the underlying consideration of the Brentjens case?

Answer 35

The need to protect the vulnerable in society

Question 36

Which area of EU law does Brentjens touch upon?

Answer 36

EU competition law

Question 37

Which area of EU law does Laval touch upon?

Answer 37

Free movement law

Question 38

In Laval there was a clash between...? (2)

Answer 38

1/ free movement 2/ right to strike/right to collective action

Question 39

What is the key difference btwn Brentjens and Laval?

Answer 39

The CJEU chose a different approach regarding the extension of the scope of EU law

Question 40

Comparison Brentjens/Laval? (2)

Answer 40

1/ in Brentjens, application of Art. 101 TFEU => measure outside scope of EU law 2/ in Laval, application of Art. 56 TFEU => measure inside the scope of EU law => balancing act

Question 41

What was the result of the balancing act carried out in Laval? (2)

Answer 41

1/ CJEU privileged economic considerations over social concerns 2/ this was a deliberate choice

Question 42

In light of the Laval ruling, what does the priority of the CJEU appear to be?

Answer 42

Effectiveness of the internal market and fundamental freedom provisions

Question 43

Why are there various distinctions between status of EU citizens in Citizenship Directive (CD)? (3)

Answer 43

1/ economically inactive individuals can apply for social benefits in host MS 2/ this has costs 3/ such costs hence imply solidarity

Question 44

Main considerations surrounding EU citizenship? (3)

Answer 44

1/ status and time 2/ residence and equal treatment are closely linked 3/ if applying for social assistance, individual must not be an unreasonable burden

Question 45

What does Art. 24 of CD codify?

Answer 45

Principle of equal treatment of EU citizens legally residing in a host MS

Question 46

What does application of equal treatment (Art. 24 CD) require? (3)

Answer 46

1/ verification whether individual is entitled to reside within host MS 2/ residency linked to resources & self-sufficiency 3/ key: individual must not become an unreasonable burden on social assistance system of host MS

Question 47

What is main finding of Dano ruling & criticism? (3)

Answer 47

1/ a person, by applying for social assistance, is presumed to be an unreasonable burden 2/ this is a curious reasoning for interpretation of Art. 7(1)(b) CD 3/ this also seems to disregard solidarity

Question 48

What tension did the Wolzenburg case illustrate? (2)

Answer 48

Tension between 1/ execution of EAW 2/ respect for fundamental freedoms

Question 49

Main points of Wolzenburg ruling? (3)

Answer 49

1/ there existed a difference in treatment regarding execution EAW with respect to nationals/non-nationals 2/ this requires justification and proportionality 3/ 5-year residency requirement was found to be justified and proportionate by CJEU (prospects of reintegration, parallel with right of permanent residence if +5 years stay)

Question 50

What was Slovakia and Hungary v. Council (Asylum Quota case) about?

Answer 50

Temporary relocation mechanism redistributing refugees from Greece and Italy to other MS

Question 51

What is the Asylum Quota case a clear example of?

Answer 51

Solidarity between MS

Question 52

Main finding & uncertainty left by Asylum Quota case? (2)

Answer 52

1/ CJEU, in para 252, ruled that Council is 'required to give effect to the principle of solidarity' 2/ however, remaining question: solidarity with whom? MS or refugees?

Question 53

Main takeaway of tutorial on solidarity?

Answer 53

Solidarity is different in the eye of the beholder