What Is Wrong with Solidarity in EU Asylum and Migration Law?

Abstract

In this article, we explore why solidarity has not worked according to expectation in EU migration and asylum law and why it is unlikely to work in the future. First, we consider discourses of burden-sharing and solidarity in EU law from the 1990s up to the Lisbon Treaty in 2009 to identify emergent path dependencies. This period saw the introduction of primary law provisions on solidarity, such as Article 80 TFEU, as French and Dutch electorates had rejected a European constitution. Second, we perform an analysis of Article 80 through the conceptual history of solidarity, in particular, the dominant Roman law tradition of obligation in solidum and the French tradition of solidarism. We submit that the term ‘solidarity’ is actually a misnomer: already on structural grounds, Article 80 should be read as an alliance clause, countering a threat of irregular immigration. Third, we find that the practice under Article 80 as it develops during the period between 2015 and the 2020 European Commission Pact on Migration and Asylum corroborates this finding. Overall, we find that the concept of solidarity in EU asylum and migration law engenders outcome expectations that it cannot deliver as the defence alliance it is.

The Constitutional Concept of Solidarity in Eu Law: Some Reflections on The Interrelationship Between Solidarity, Constituent Power, and Non-Domination

“…Recently, Eleni Karageorgiou and Gregor Noll have interestingly characterized solidarity as an alignment principle, which reaffirms the hard borders of the EU where solidarity is linked to the idea of a 'we against them', i.e., the outsiders. 25 Relatedly, Mette Eilstrup-Sangiovanni has pointed out that the growing politicization of immigration and asylum policies and fueled fears of terrorism and transnational crime, there is no 'European fortress'. 26 Instead, she argues that there are 27 fortresses behind which individual Member States are increasingly barricading themselves, so in this context not showing solidarity towards the EU nationalistic selfishness.…”