A proportionate solidarity test? : ex ante existence ex post application of a legal principle of solidarity in European Union law

Abstract

The rediscovery of values and principles is a fragile undertaking fraught with its own interpretive perils. Nevertheless, claims to their normative superiority have a rather uncertain and inadequately explained content. European Union law may inspire and assist scholars and practitioners alike in their understanding of the principle of solidarity. This thesis suggests the possibility of a more coherent framing of solidarity as a legal principle in European Union law. This approach may assist legal scholarship in moving forward to build upon existing literature within the field, and integrate a more holistic model of the legal principle of solidarity in European Union law based on a theory defining solidarity as joint action. The latter may better reflect the various legal correlates that together define this principle both ex ante and ex post. More than adding another voice to the debate what solidarity is, this thesis focuses rather on what solidarity does. Recent developments within Public International Law shed some light on the debate within the ambit of European Union law. The thesis will attempt to provide suggestions on how solidarity as a principle steers and interacts with other principles of EU law. Integrating the ex ante and ex post dimensions of the principle of solidarity is a subtle distinction and arguably necessary in order to explain solidarity as a form of background coercion. The elusive question remains how a legal principle of solidarity may be understood as a legal principle which takes into consideration both the ex ante and ex post natures of the principle. The gravamen of the problem is that the principle of solidarity has primarily been applied ex post after the decisions of the Member States have become subject to judicial review by the European Court of Justice. Nevertheless, there is also a need for a legal principle of solidarity which may also be applied and understood ex ante before interacting with an adjudicatory body. These two temporal dimensions are of equal importance in understanding what solidarity as a legal principle actually does. Instead of being solely an after-the-fact result-oriented approach, an ex ante application of solidarity as a legal principle places greater emphasis on formative processes and their bases in adherence to the Treaties. Between the ex ante existence and the ex post application of the principle lies the vehicle of the decisions made by the Member States in light of European Union law. Between the ex ante existence and ex post application of solidarity lies the decision of the Member States to act, framed between existing EU law and the review of the Member State´s choice by the European Court of Justice. That is, a fair opportunity for those involved to act in ways that are in accordance with the Treaties in both input and output.