The construction of social Europe through transnational equality

ABSTRACT

This paper examines the relationship between equality and social Europe, which has remained underdeveloped in the process of European integration. In contrast to the social dimension of the EU, the principle of equality has been significant from the beginning of European integration. The paper opens with an overview of how equality functions as the basis for a social Europe. Next, two interpretations of equality are introduced. The EU’s preferred interpretation, which is based on merit, is in sync with market ideals. One of the shortcomings of merit-based equality as a foundation of social Europe, however, is its inability to properly disconnect the vulnerable person from the employment market. This paper argues that an alternative interpretation of equality based on value is more suitable, because value-based equality can challenge the potentially harmful social structure of the market.

KEYWORDS:

• EU
• equality
• social Europe
• dignity

The focus of this article is on the principle of equality and the role it plays in the building of a social Europe.¹ Drawing on equality in discussions about social Europe may seem unusual because equality has not been significant in the construction of post-war European Sozialstaaten.² As I will argue, however, the EU’s welfare system is different in nature because it draws its substance from the solidarity of its Member States. In other words, to the extent that social protection takes place in the transnational space, it does so through the societies of the Member States rather than a transnational society.³ I aim to show that, depending on the interpretation of equality, a welfare system which is organised in this way can suffer from certain shortcomings in its protection of vulnerable people. If the EU’s main purpose is to facilitate economic integration, then these shortcomings may not necessarily constitute a normative problem. Nevertheless, it seems to me that for as long as the EU makes the bold claim that values are part of its ethos,⁴ it must agree to be evaluated against moral standards.

And yet, in 1939 FA Hayek published an article in which he argued that the liberal market can be organised on the transnational level, but that social integration, the precondition for solidarity, remains confined within the boundaries of the nation state. Unsurprisingly, Hayek welcomed this dichotomy, which released the market from the constraining effects of social integration.⁵ By contrast, Karl Polanyi saw any such development in a far less positive light. He argued that economic integration without adequate social embeddedness risks creating societal countermovements that may ultimately challenge the fabric of society, which is the very basis of the market.⁶ I do not intend to discuss the negative effects of these movements further, not least because Martha Nussbaum has done so eloquently and in depth.⁷ Suffice to say that recent political developments, such as Brexit and Trumpism, provide evidence that destabilising societal countermovements are on the rise and show how important it is to reflect about social Europe today.

In the debate about social Europe, it can be easily forgotten that from the outset, the ‘social and economic dimensions of European integration were meant to interrelate normatively’.⁸ This article contributes to the debate about the recalibration and reconciliation of the economic and social dimensions of European integration. Section 1 examines the functionality of equality in the building of a social Europe. Section 2 introduces a conceptual interpretation of equality which is based on merit; this is the model preferred by the EU. Linking access to social Europe with a merit-based form of equality has the shortcoming, however, of being unable to effectively disconnect the vulnerable individual from the harms that can be caused by the (employment) market. Section 3 introduces an alternative interpretation of equality which is based on value, and explains why a value-based interpretation of equality offers more protection for the vulnerable person than one based on merit.

1. The functionality of equality

In the introduction to this article I cited Hayek’s prediction that social integration will be difficult to achieve on the transnational level. Against this background it will not be surprising that social Europe has always been ‘the sick man of the Union’s internal policy’.⁹ And yet, it seems to me that the EU has sought to disprove Hayek’s pessimistic prediction by making the principle of equality the basis of social Europe. Nevertheless, there are some who have expressed doubts over whether equality can successfully fulfil this role;¹⁰ after all, equality normally targets ‘animus and narrow stereotypes’.¹¹ In contrast to an underdeveloped social Europe, equality has been prominent in the context of European integration. For example, the principle of equality featured in the Treaty of Rome from 1957,¹² although it covered only two protected categories: Article 6 EEC (now Article 18 TFEU) prohibited discrimination based on nationality, while Article 119 EEC (now Article 157 TFEU) ruled out discrimination based on sex.

In the early days of the EU, equality was ‘largely driven by the logic of market integration’;¹³ in other words, equality in the EU was originally pursued to facilitate worker migration and the integration of national markets into one internal market.¹⁴ From the 1970s, however, the somewhat narrow focus of the EU’s equality framework has been gradually expanding in two ways. First, the number of protected categories has increased to include race, sex, age, disability, religion and sexual orientation.¹⁵ Second, equality is not only increasingly specified through secondary law, but also, with the advent of the Lisbon Treaty,¹⁶ further protected by primary law through the Charter of Fundamental Rights.¹⁷

One reason for this momentum in the field of equality law, one could argue, has been the gradual realisation that the project of European integration needed to develop a human dimension equivalent to its economic dimension in order to become, or at least to be perceived as, legitimate.¹⁸ Advocate General Sharpston captures the sentiment of the EU’s attempt to embrace humanness in the seminal case of Zambrano, where she writes that ‘when citizens move, they do so as human beings, not as robots’.¹⁹ What the Advocate General is alluding to is the human condition of vulnerability;²⁰ according to Goodin, people are vulnerable when they have a ‘susceptibility’ to harm which is not ‘predetermined’.²¹

If we accept that susceptibility to harm is a key parameter of vulnerability, the alleviation if not prevention of which is the object of the welfare system, then the nature of harm must be explored in more detail. In particular, I wish to discuss two aspects of harm: the relationship between vulnerability and harm and how risk relates to harm. In the discussion that follows, I begin with the observation that the vulnerability of the worker is linked to a particular type of harm, namely ‘social harm’.²² While harm in general is the result of specific acts by agent(s), social harm is caused by ‘a kind of moral wrong distinct from the wrongful action of an individual agent or the repressive policies of a state’ amounting to ‘structural injustice’.²³ What characterises social harm is that its roots can be difficult to identify, because it results from particular policies or laws that do not appear illegitimate ‘when looked at in isolation, but which create patterns that place large numbers of people into exploitative labour relations, from which it is very hard to escape’.²⁴ That said, social harm can be said to result from ‘social conditions’, which are subject to change.²⁵

Social harm is experienced by the vulnerable garment workers in Bangladesh to whom we are connected through the cheap clothes we wear and who are exploited through dangerous working conditions.²⁶ Those people experience social harm through the operations of the global markets which are shaped by the interests of the most affluent countries to their advantage.²⁷ A relationship of domination unfolds between the rich and the poor ‘whenever persons or groups are structurally related to one another in a particular way[;] this situation in itself constitutes domination regardless of the outcomes or results we happen to oversee in any particular case’.²⁸ The particular way in which groups are structurally connected is through the market. When people become commodified,²⁹ they are unable to escape from this structural arrangement because of their dependency to interacting with the market. People in relationships of domination are vulnerable; Zumbansen captures the nature of this transnational vulnerability when he speaks of the ‘spatialisation of vulnerability’.³⁰

Social harm is also regularly experienced by those who work in low-paid jobs and with insecure contracts. For example, zero-hour contract workers who deliver take-away food are vulnerable because their commodification requires them to wait for the phone to ring with an offer for work, leaving them unable to plan their lives beyond the boundaries of work.³¹ Migrant workers in more affluent countries are especially vulnerable in this context due to the immigration rules of certain countries which can make it difficult for them, if not impossible, to change their employer. As Sedmak has noted, ‘those who are particularly vulnerable in any society are those who are engaged in low-paid, unskilled work, in other words excluded from—outsiders of that society’.³² Migrant workers are vulnerable because often they are economically and socially excluded. Many receive only temporary visas; this category of worker is known as ‘Gastarbeiter’ from the German word ‘Gast’, meaning ‘guest’; the term seems euphemistic when such workers are not given the respect one would normally show to a guest but rather are treated like a commodity, used and thrown out when no longer needed.³³

Different types of vulnerability result in different kinds of social harm. For example, everybody is exposed to ‘inherent’³⁴ or ontological vulnerability, which cuts across boundaries such as society, culture and class.³⁵ In other words, ontological vulnerability is universal and affects people equally. In contrast, ‘situational’ vulnerability ‘is caused or exacerbated by social, political, economic, or environmental factors’;³⁶ in other words, it varies according to context. While both types of vulnerabilities are conceptually distinct, they are nevertheless interrelated in the sense that people who experience situational vulnerability often face a higher risk of exposure to inherent vulnerability; for example, they may have more difficulty in accessing quality food or health care.³⁷ Leaving that aspect aside, ontological vulnerability is a consequence of the human condition,³⁸ whereas situational vulnerability is a product of the ‘social structure’,³⁹ which operates in the background like the Matrix. Both situational vulnerability, which is of interest for this article, and social harm are created through the social structure; and a person’s susceptibility to harm, and therefore their situational vulnerability, depends on their position in that structure.

The likelihood of a person experiencing harm is determined by risk. The word risk comes from the Italian risicare, which means ‘to dare’: thus, ‘risk is a choice rather than fate’.⁴⁰ Analysing risk in the context of the market is therefore appropriate because ‘the growth of trade transformed the principles of gambling into the creation of wealth, the inevitable result was capitalism, the epitome of risk-taking’.⁴¹ Risk plays a twofold role in relation to harm. On the one hand, people are harmed in accordance with the risk they are prepared to take. When I race down a mountain on my racing bike and am injured, for example, this is the result of the certain risk I was prepared to take. Feinberg argues that people are harmed when their legitimate interests are called into question.⁴² If this is so, then people are harmed not only when they experience ‘outcome harm’, but also when they face the risk of being harmed (‘risk harm’);⁴³ this is the second link between harm and risk.

For the purposes of this article, it is important to emphasise that the allocation of risk, which triggers outcome/risk-harm, is not coincidental.⁴⁴ In the Risk Society, Beck writes that ‘[t]he history of risk distribution shows that, like wealth, risks adhere to the class pattern, only inversely: wealth accumulates at the top, risks at the bottom’.⁴⁵ Piketty takes a similar view, arguing that ‘the distribution of wealth has always been deeply political, and it cannot be reduced to purely economic mechanisms’.⁴⁶ Ultimately, in the context of society, the social structure bears a certain responsibility for the allocation of risk, and consequently of harm. If this is so, then it may not always be the individual who ‘dares’ and exercises ‘choice’; ironically, from the perspective of the individual, situational vulnerability may, wrongly, seem like fate. However, because harm is linked to risk, vulnerability can be addressed through solidarity in two ways. The first way leaves the risk allocation intact but remedies the harm; the second, more ambitious way, changes the social structure and risk allocation.

References to solidarity often trigger images of the Good Samaritan who comes to the rescue of the mugged and helpless traveller on the side of the road.⁴⁷ The solidarity I have in mind here, however, is of a different nature and has its origin in Roman law and the institute of obligatio in solidum (joint liability): ‘one for all, and all for one’.⁴⁸ While the solidarity of the Good Samaritan is based on a victim narrative, the solidarity I am interested in ‘comprehends the strong and the rich no less than the weak and the poor’.⁴⁹ Both types of solidarity aim to overcome ‘some significant adversity’ but only the latter does so through ‘joint action’ which, according to Sangiovanni, is ‘constituted by a characteristic profile of interpersonal attitudes, norms, disposition, and behaviors triggered by one’s identification with another on the basis of a role, cause, way of life, condition or set of experiences’.⁵⁰ I will return to the issue of ‘role’ and ‘condition’ later in this article.

Finally, I examine the question of how social Europe, which is based on equality, addresses vulnerabilities. One of the prominent features of social Europe, which provides social assistance or non-contributory cash benefits to people,⁵¹ is that it draws on national solidarity because it lacks a comparable transnational solidarity. This two-level structure of social Europe is in sync with Bickerton’s conceptualisation of new intergovernmentalism, according to which ‘[s]tates remain central to the European integration story, but they are not the “obstinate” nation-states of traditional intergovernmentalist theory’.⁵² The question is under what circumstances the boundaries of national solidarity need to open up to admit people from the outside, ie, those who populate the transnational space. Advocate General Cruz Villalón appears to suggest that EU citizens and national citizens are equally entitled to access national solidarity; he argues that ‘[i]n so far as it has a transnational dimension, European citizenship is founded on the existence of a community of States and individuals who share … a high degree of mutual trust and a commitment to solidarity’.⁵³

The European Court of Justice (ECJ) seems to have a different perspective on this question, however, arguing that it is the migrant worker and the frontier worker who should have equal access to national solidarity because ‘they have participated in the employment market of a Member State [which] establishes, in principle, a sufficient link of integration with the society of that Member State’.⁵⁴ Thus it would appear that EU citizens are ‘expected’ to transform into market citizens before they can benefit from social Europe.⁵⁵ In this context, it is worth recalling that even in the case of Grzelczyk, in which the Court memorably stated that EU law ‘accepts a certain degree of financial solidarity between nationals of a host Member State and nationals of other Member States’,⁵⁶ Mr Grzelczyk had some previous connection with the employment market of his host state.

Albeit in a different context, the Court affirmed that EU citizens and national citizens can be treated differently in terms of their access to solidarity when, in the case of Rottmann, it held that:

it is legitimate for a Member State to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality.⁵⁷

Likewise, in the controversial case of Dano, the Court emphasised that EU citizens who are economically inactive cannot expect the EU’s legal framework give them access to national solidarity for them.⁵⁸

In turn, the Court has a long tradition of making it relatively easy for individuals to become market citizens. This has been achieved by opening up the definition of the worker to those who can show that their work is ‘effective and genuine’;⁵⁹ therefore, a person engaged only in part-time work can qualify for the status of a worker.⁶⁰ In fact, in accordance with Article 45 TFEU, even jobseekers have been considered workers as long as they have ‘real links with the labour market of [the] State’⁶¹ in which they hope to find work. Overall, becoming a worker under EU law has always been based on ‘a qualitatively different concept from the ordinary definition of the worker (indeed it is a “concept” more than a simple word)’.⁶² One consequence of this case law is that ‘large categories of individuals who could not be seen as meaningful economic contributors were able [to] derive a panoply of benefits from the host state’.⁶³

Nevertheless, it seems to me that there is a wider problem with the Court’s approach to social Europe. As outlined, in order to invoke the status of equality, an EU citizen must undergo a transformation into a market citizen; the success of this transformation, however, depends ‘on both the personal characteristics of each market citizen and prevailing labour demands’.⁶⁴ In the EU context, the ‘personal characteristics’ of a worker have never really been modernised and still largely follow ‘a male model of the “independent” wage earner’.⁶⁵ Hence, the ‘autonomy myth’⁶⁶ is still alive and well in the EU. Moreover, the reference to ‘labour demands’ suggests that vulnerable citizens who fail to transform successfully into market citizens may find themselves in the peculiar scenario of being ‘too poor to merit a benefit’.⁶⁷

Thus far I have argued that social Europe is based on the principle of equality, which is important because social Europe relies heavily on the solidarity of the Member States. In the sections that follow, I introduce two different interpretations of equality, one based on merit and the other based on value. Merit-based equality is associated with solidarity that depends on the role a person plays, eg, as a market citizen, whereas value-based equality generates solidarity that is triggered by condition, ie, the vulnerabilities of people. Although the EU’s current preference is for merit-based equality, it is my contention that equality based on value is the more suitable foundation for social Europe.

2. Equality based on merit

Having established that social Europe is fully accessible only to market citizens and not to EU citizens generally, in this section I want to carve out, in more detail, the role of equality in social Europe. In particular, I argue that in the context of social Europe, equality operates in two conceptual ways: on the one hand, it equates to equality as sameness; on the other hand, it constitutes equality of opportunity. Both concepts of equality follow ‘the key liberal commitment to a notion of “individual merit”’;⁶⁸ I am calling this equality based on merit.

For a long time, the Court has interpreted equality as sameness;⁶⁹ this has meant that like cases are treated alike. Undoubtedly, approaching equality in this way has a certain ‘allure’.⁷⁰ The understanding of equality as sameness dates back to Aristotle and resonates with ‘our instinctive idea that fairness requires consistent treatment’.⁷¹ Dworkin has argued that we invoke equality ‘in its flat sense’, as he calls it, ‘to indicate sameness or identity’.⁷² In the neoliberal context, it seems fitting that the status of equality, thus conceived as sameness or identity, is conferred on EU citizens only after they transform into market citizens, as I argued earlier.

The role of the market citizen, at least in the context of the EU, ‘provide[s] a reason to act in solidarity’.⁷³ Because of this focus on the role that a person occupies, the real person who plays that role remains in the shadow with their conditions. Instead, what matters is that the person stays in the character of the market citizen, pursuing the principle that ‘[t]he more resilient we are the more fully developed we are as neoliberal subjects’;⁷⁴ this role is antithetical to the vulnerable subject and also has implications for solidarity. The interpretation of equality based on merit not only means that solidarity resembles a form of cooperation,⁷⁵ which is based on reciprocity which in turn requires trust,⁷⁶ but also that reciprocity and trust are preconditions for anyone to be able to benefit from that kind of solidarity.

The reciprocity at play here is, however, not ‘specific’ but ‘generalized’, which amounts to that ‘I’ll do this for you without expecting anything specific back from you, in the confident expectation that someone else will do something for me down the road’.⁷⁷ This type of reciprocity is met when the market citizen has a relationship with the employment market of a Member State. An alternative, less robust route, seems to be the ‘genuine link’⁷⁸ case law of the Court which entitles a person to benefit from national solidarity; this link may be an expression of identity but also reciprocity. In the market society being a consumer means having a shared identity but also develop generalised reciprocity; after all, we pay taxes when we consume. Once reciprocity is established, by implication, the person can be trusted; market citizenship therefore has to do a lot of heavy lifting to achieve ‘equality as solidarity’.⁷⁹

One person who did not (or could not) adopt the role of the market citizen was Ms Dano, whose case I briefly introduced earlier. Ms Dano decided to take advantage of the EU’s free movement laws and moved with her young son to Germany in order to live with her sister. Though she had no intention to work in Germany, Ms Dano hoped to gain full access to social Europe and its ‘special non-contributory benefits’ by virtue of her EU citizenship alone.⁸⁰ The Court decided against her, however, arguing that Ms Dano was ‘not seeking employment and that she did not enter Germany in order to work’.⁸¹ In the eyes of the Court, Ms Dano was not a good market citizen, and therefore could not be considered ‘the same’ as national citizens, nor was she entitled to equal access to solidarity.

I am sure some will agree with the Court’s exclusion of Ms Dano from social Europe because they think that her ‘intentions or attitudes are … faulty by the standards of a relationship’,⁸² at least when measured against (neo)liberal standards.⁸³ From this perspective, Ms Dano could be considered at fault because of her failure to take advantage of the opportunities the internal market offers. As Nagel has observed, ‘[t]he liberal idea of equal treatment demands that people receive equal opportunities if they are equally qualified by talent or education to utilize those opportunities’;⁸⁴ in turn, when given the opportunity, people are expected to make use of these opportunities. This brings me to the other kind of equality operating in the context of social Europe, namely equality of opportunity. This conception of equality has been a defining feature of European integration from the beginning and promoted by the different EU institutions.⁸⁵ In Kalanke, for example, the Court ‘expressly embraced the philosophy of equality of opportunity’,⁸⁶ which is also one of the core principles of the European Pillar of Social Rights, which was proclaimed in 2017.⁸⁷ Indeed, the President of the European Parliament Roberta Metsola, with an almost charming naivety, has declared that Europe simply means ‘equality of opportunity’.⁸⁸

Such effusive declarations suggest that the EU has succumbed to the allure of this doctrine—without much critical analysis, I hasten to add. Understandably, the doctrine is attractive because of its flexibility and its ability to mean ‘different things to different people’.⁸⁹ A simple view of equality of opportunity suggests that there is an ‘open competition’ for resources which are normally limited.⁹⁰ Green reaches a similar conclusion, arguing that the concept ‘can mean no more than open competition for scarce resources under conditions of equal treatment between persons’.⁹¹ Based on this definition, two conclusions can be drawn about the nature of equality of opportunity. First, equality of opportunity is closely related to competition, which means that there is a danger that it ‘really only defends the equal right to become unequal by competing against one’s fellows’.⁹² Second, because it ‘invites the winners to consider their success their own doing and the losers to feel that those on top look down with disdain’,⁹³ equality of opportunity in the neoliberal discourse is often used to justify and preserve the status quo. Arguably, neither of these characteristics can be easily reconciled with the idea of social Europe.

Having introduced equality of opportunity into the discussion, the next step is to establish how the doctrine is linked to the debate about social Europe. The example of Züchner is illustrative in this regard.⁹⁴ Mr Züchner, the breadwinner of the family, became paraplegic after an accident, and his wife became his carer. The ECJ had to decide whether Ms Züchner could benefit from Directive 79/7/EEC,⁹⁵ which aims for a progressive implementation of the principle of equal treatment for men and women in relation to social security. According to Article 2, in order for the Directive to become operative, Ms Züchner had to be able to establish that she belonged to the ‘working population’. On this point, the Court found against Ms Züchner, arguing that unpaid and supportive work, when it is undertaken by a family member, does not qualify as ‘work’ because—and this is not without irony—it would extend the effects of the Directive ‘infinitely’.⁹⁶ While the Court acknowledged the importance of dependency work in this case, it was nevertheless reluctant to draw the obvious conclusion that dependency work amounts to work, thereby transforming the person undertaking this kind of work into a market citizen.

Because Ms Züchner failed to take on the role as of a market citizen, in the eyes of the Court, she could not be considered ‘the same’, and did not qualify for equal treatment when it comes to accessing solidarity. However, here is the problem with the doctrine of equality of opportunity: opportunities can be defined as the ‘absence of a specified obstacle or set of obstacles, the absence of which leaves no insurmountable barriers explicitly in the way of X’s attaining Y’,⁹⁷ and yet often they are only available to those who are ‘white, free, propertied, educated, heterosexual (at least married), and autonomous’;⁹⁸ others encounter obstacles. Given that Ms Züchner obviously does not meet most of these criteria, it could be argued that she lacked equal opportunities, which prevented her from claiming equality as sameness by virtue of market citizenship.

In light of these considerations, I want to revisit the circumstances of Ms Dano who, like Ms Züchner, does not tick the boxes that give people access to opportunities, and in fact may never have had the opportunities the Court implicitly accuses her of not having taken advantage of. Therefore, I want to offer an alternative reading of her circumstances. The point I want to make is that sometimes a person’s circumstances may appear to be the result of their personal choices, ie, their ‘particular life story’, but in fact ‘depend partly on their own actions, partly on luck, and partly on the actions of others’.⁹⁹ From this perspective, how a decision turns out for a person depends to a considerable extent on his or her position in the social structure.¹⁰⁰ This would suggest that Ms Dano and Ms Züchner are not so different after all.

I want to zoom in on the aspect of luck, which, as Young suggests, has an impact on how decisions turn out. Luck egalitarians distinguish between ‘option luck’ and ‘brute luck’.¹⁰¹ Option luck describes ‘how deliberate and calculated gambles turn out—whether someone gains or loses through accepting an isolated risk he or she should have anticipated and might have declined’.¹⁰² By contrast, brute luck is ‘a matter of how risks fall out that are not in that sense deliberate gambles’.¹⁰³ In other words, brute luck describes things that simply happen to a person, that are outside their control and unrelated to the choices they make. Arguably, both Ms Züchner and Ms Dano can be described as being subject to brute luck rather than option luck. Their circumstances as dependency workers are largely determined by conventions which are solidified in the social structure; their position in the social structure impacts on the outcome of their (deliberate) choices. Thus, what may look like option luck from the perspective of the individual becomes brute bad luck when we consider the social structure, which is making decisions for them in the background or skews the outcomes of their decisions in a particular way.

We would expect social Europe to intervene when there is inequality of opportunity. In the context of the market, where people are in competition with others, the question becomes at what point in time an intervention should take place in order to restore equality of opportunity; for example, an intervention can take place before people start to compete in the market or after. According to Roemer, however, ‘before the competition starts opportunities must be equalized, by social intervention if need be; but after it begins, individuals are on their own’.¹⁰⁴ In the context of the EU, this could mean ‘[equalizing] educational and skill-acquisition opportunities across the union for all those with equal talent and motivation’.¹⁰⁵ If the intervention is made before the competition begins, the doctrine of equality of opportunity will be of little help to vulnerable dependency workers such as Ms Züchner and Ms Dano, because restoring equality of opportunity has no impact on the rules of the competition itself. However, in the context of the EU, the doctrine of equality of opportunity is raised in a transnational context which comes with specific problems.. I briefly outline two higher education cases which are illustrative in this regard.

In Förster,¹⁰⁶ the Court had to decide whether a Dutch national law which imposed a five-year residency requirement on students before they were eligible for maintenance grants amounted to discrimination and therefore was in conflict with Article 18 TFEU. The Court found in favour of the Netherlands, arguing that five years of uninterrupted residence was an appropriate requirement, because only then could an applicant show they were sufficiently integrated into the society of the host Member State.¹⁰⁷ In its judgment, the Court sidelined the controversial point that the residence requirement applied only to non-nationals,¹⁰⁸ despite the fact that this amounts to direct discrimination which should be harder to justify.¹⁰⁹ Achieving equality of opportunity is challenging in the context of a nation state, but in the transnational context this challenge is even greater, because.

[i]n the modern world, we have created a social order in which there is a commitment to equality of opportunity for people within democratic states (at least to some extent), but no pretence of, or even aspiration to, equality of opportunity for people across states.¹¹⁰

The case of Förster suggests that this barrier has not been fully overcome in the transnational space of the EU either.

The second case concerns the Austrian University admission system.¹¹¹ Traditionally, Austria had a very generous university admission system, whose purpose it was to increase the number of university graduates from disadvantaged backgrounds.¹¹² In other words, the Austrian system tried to provide equality of opportunity for the disadvantaged in Austria. When Austria joined the EU, it required university applicants from other Member States to show that they met the entrance requirements for the relevant course of study in the Member State from which they had their A Level certificate.¹¹³ Nevertheless, the Court found that Austria’s admission system was discriminatory and therefore had to be amended.¹¹⁴ In some fields of studies such as medicine, for example, it is difficult, if not impossible, to increase the number of students significantly, due not only to costs but also to the limited number of practical teaching spaces. Consequently, extending the group of applicants ‘to whom [the opportunity] belongs’¹¹⁵ inevitably means that competition for access to that opportunity is intensified. The conclusion to be drawn from this second example is that pursuing equality of opportunity is not a zero-sum game. In other words, transnational equality of opportunity can come at the expense of national equality of opportunity.

In this section, I have argued that equality as sameness governs who has access to national solidarity, and that equality of opportunity determines the conditions under which people have access to the role of the market citizen. Occupying this role is important because, in the neoliberal environment at least, it is as market citizens that individuals share an identity and are considered the same as the national citizens from whose solidarity they wish to benefit. However, the equality which is in operation, ie, one based on merit, spills over into the nature of solidarity. It would seem that the solidarity which follows from this type of equality embraces the narrative of the market rather than providing an alternative to it; in other words, this kind of solidarity at best alleviates the vulnerability of a person but does not alter the structure which causes it.

The other aspect of equality as sameness is that it regulates how solidarity is divided, in the sense that everybody receives the same, but it does not establish a minimum protection; consequently, some people may receive very little. It is possible, for example, to eliminate inequality by moving everybody below the poverty line.¹¹⁶ Ultimately, all that equality as sameness may achieve is the spreading of misery, albeit evenly. A social Europe governed by this kind of equality will struggle to ‘create a community in which people stand in relations of equality to others’.¹¹⁷ A social Europe of that kind can be considered modest in its approach because it broadens the group of people who have access to solidarity but it does not change the nature of solidarity that is in operation. In the next section, I will introduce an alternative interpretation of equality, one based on value, which I believe to be better suited as a foundation for social Europe.

3. Equality based on value

Equality based on value generates solidarity ‘on the basis of … condition’.¹¹⁸ When condition, rather than role, is the basis for solidarity, then vulnerability, a human condition, is brought to the forefront of concern. In particular, situational vulnerability becomes the focus, because, as discussed earlier, it affects people in different ways. From a conceptual perspective, the focus on condition may necessitate a change to the social structure, which causes the vulnerability in people, to ensure its alignment with the principle reflected by equality based on value This kind of equality conveys an ambitious solidarity.

In this section, I want to discuss two questions in relation to equality based on value: first, why is a value-based interpretation of equality better suited as a foundation for social Europe, and second, is a valued-based interpretation of equality a realistic alternative to merit-based equality? I want to begin by outlining what I mean by value-based equality. It seems to me that the characteristics of equality based on merit is captured in the phrase ‘treatment as an equal’,¹¹⁹ or the concept of ‘basic equality’,¹²⁰ whose emphasis on ‘human worth’ is antithetical to merit: ‘Human worth is what is left over when you take merit away or set it aside’.¹²¹ Value, or ‘worth’ (Wert in German), has close etymological roots with the word Würde, which translates as ‘dignity’.¹²² Finally, treating people as equals means that they are ‘treated with the same respect and concern as anyone else’.¹²³ Jeremy Waldron has outlined the relationship between the different components of ‘basic equality’ as follows: ‘“equal worth”, “equal concern and respect” and “human dignity”’ are not synonyms, he argues, ‘[b]ut they cluster together to form a powerful body of principle’.¹²⁴

A good starting point for my discussion of equality based on value is the case of Commission v Austria, which concerns an ultimately failed attempt by the Austrian government to index family benefits and social tax advantages through an adjustment coefficient.¹²⁵ The national law was the product of a major political promise by the coalition government of the Austrian Conservatives and the far-right Freedom Party. The purpose of the law was to adjust the amount of family benefits in accordance with the relative purchasing power of the Member State in which the child of the worker resided. Under this law, a Hungarian nurse, for example, who works in Austria and whose child resides in Hungary would receive lower benefits after the adjustment coefficient of 0.562 is applied,¹²⁶ whereas a wealthy entrepreneur who sends their child to a boarding school in Switzerland could expect an increase in family benefits above the Austrian level because of Switzerland’s higher purchasing power.

In my view, the case was argued on the basis of the conventional interpretation of equality, ie, equality as sameness. Accordingly, the Austrian government argued, with some plausibility, I think, that the indexation of family benefits would ensure ‘the establishment or restoration of the supportive function and the fairness of the social system’.¹²⁷ For context, it is worth noting that through the indexation, the Austrian government also hoped to save more than €100 million.¹²⁸ Important for our discussion is that Austria defended the indexation of family benefits based on the child’s place of residence by arguing that ‘the adjustment mechanism does not lead to unequal treatment of identical situations, but ensures that different situations are also treated differently’.¹²⁹ Austria’s use of costs/residence as a comparator in order to reject equality is in line with an interpretation of equality as sameness.

Nevertheless, the ECJ found that the Austrian law violated the principle of equality on two accounts. First, in line with the interpretation of equality based on merit, the Court argued, invoking earlier case law, that migrant workers should be entitled to benefit from the social policies of Member States because of their contribution to the financing through taxes;¹³⁰ this is meant to be understood as a reference to reciprocity. Second, also with some plausibility, the Court argue, that the child’s place of residence was ‘neither appropriate nor necessary for the purposes of ensuring the supportive function and the fairness of the social system’.¹³¹ Austria’s reference to a comparator of cost/residence and the Court’s reference to a comparator of reciprocity/residence reveal three shortcomings of equality as sameness: first, identifying a comparator is a ‘value judgment’; second, the choice of comparator influences the outcome; and finally, the choice of the comparator ‘can obscure the social context which produces the disadvantage in the first place’.¹³²

While Austria and the Court draw on different comparators, it is also noteworthy that both invoke the principle of fairness to justify their respective standpoints. It seems to me that this case is a clear reminder that there is a difference between treating people equally, and treating them with respect.¹³³ Arguably, the Austrian law has the potential to undermine the self-respect and self-esteem,¹³⁴ of those people who come from countries with a lower purchasing power. This is particularly true of the market society, in which everything has a price and is ranked accordingly.¹³⁵ In this context, lowering the amount paid to support a child seems to signal that the child has a lower status. While status of condition is often actively chosen by people (eg, marriage) or is temporary in nature (eg, infancy), status of sort ‘categorizes legal subjects on the basis of the sort of person they are’.¹³⁶ The sortal status of a person ‘represents a person’s permanent situation and destiny so far as the law is concerned. … The idea behind sortal status is that there are different kinds of person’.¹³⁷ Ultimately, I wonder whether the indexation law solidifies the status of those people who are already negatively affected by their place of birth/national citizenship.

Solidified or sortal status is, however, incompatible with basic equality because it is antithetical to giving people equal concern. The principle of equal concern is not upheld because a policy fails to give certain people’s interests ‘sufficient weight in relation to other values, or … it gives their interests less weight than the similar interests of other people’.¹³⁸ We should, however, not make the mistake of thinking that equal concern means that everybody receives all that they want. It can be said that whether a particular policy meets the standard of equal concern ‘is a matter of the reasons supporting it’.¹³⁹ In other words, equal concern requires that decisions are guided by reasons rather than by ‘attitudes’.¹⁴⁰ A reason-based framework means that the interests of everybody, including those who are vulnerable, must be taken into account and cannot be sidelined because a person does not fulfil a particular role and consequently has a certain social-structural position.

While equality based on merit is comparative and divides solidarity equally, equality based on value—with its focus on the human condition—takes vulnerability seriously; this means that it is deontological in nature and divides solidarity based on a ‘doctrine of sufficiency’.¹⁴¹ Accordingly,

[s]omeone who insists that he be treated equally is calculating his demands on the basis of what other people have rather than on the basis of what will accord with the realities of his own condition and will most suitably provide for his own interests and needs.¹⁴²

Equality based on value is an instrument which aims to ‘eradicate poverty or at least to eliminate some of its humiliating features’.¹⁴³ Achieving this goal should be at the heart of a social Europe.

Finally, I want to discuss whether basic equality reaches beyond the boundaries of the nation state where space becomes fragmented. Michael Sandel has given this process of fragmentation in society the catchy title of ‘skyboxification’;¹⁴⁴ the term is a reference to the skyboxes in US baseball stadia, whose introduction largely eliminated interaction between the rich and the poor, who until then had sat together, stood in the same lines for their hotdogs and beers, and even chatted with each other.¹⁴⁵ Skyboxification is the product of ‘the marketization of everything [which] means that people of affluence and people of modest means lead increasingly separate lives. We live and work and shop and play in different places’;¹⁴⁶ the proliferation of gated communities attest to this development. In societies where skyboxification takes place, people gradually turn into strangers. This process of fragmentation poses a threat to the principle of basic equality, which over time ‘may become less and less credible to us and our children because we become less and less able to imagine what it would be like to live with these others on genuinely equal terms’.¹⁴⁷

While skyboxification is (increasingly) considered a problem within the nation state, the verdict is less clear when we look beyond its boundaries. Scanlon argues that the impartiality of equal concern and respect, one key parameter of basic equality, ‘comes with a permission of partiality, to be concerned more with the interests of these individuals than with comparable interests of others, toward whom this obligation is not owed’.¹⁴⁸ Using the example of East and West Germany before reunification to make his point, Scanlon claims that unequal school funding would be justifiable before but not after the reunification of Germany.¹⁴⁹ While I think that Scanlon’s point is plausible outside the context of the EU, I find it less persuasive inside the EU, because inside the EU we deal with Member States rather than traditional nation states. Bickerton suggests that this transformation impacts on the integrity of sovereignty when he writes that ‘[f]or modern nation states, limits were understood as internal expressions of sovereignty. For today’s member states, they are thought of as external constraints upon sovereignty’.¹⁵⁰ When sovereignty is constrained, however, it is no longer obvious to me that equal concern and respect need or can be safeguarded on the national level. The next question which must be addressed is whether EU law is at all receptive to this alternative interpretation of equality or whether it amounts to nothing more than academic speculation.

To answer this question, it seems best to look to the ECJ, which is often at the forefront of developments through the creation of focal points around which political discussion can then unfold. The Court’s approach in the recent case of CG¹⁵¹ could be interpreted as showing its willingness, to phrase it most carefully, to present us with an interpretation of equality which resembles equality based on value—although I hasten to add that it is too soon to tell whether the Court will continue in this direction. The case of CG involved an EU citizen who applied for Universal Credit (benefit) in the UK. While the ECJ specifically acknowledged the applicant’s vulnerability and that of her children, arising both from her unemployment and from an abusive relationship, her request for benefits was nevertheless denied by the national authorities of the UK. Haag criticises the CG judgment for being somewhat disjointed; ‘[t]his is especially apparent’, she argues, when ‘trying to read the section on the exclusion from the right to equal treatment, on the one hand, together with the section on the applicability of the Charter, on the other’.¹⁵² In my view, however, this disjointedness is a consequence of the Court working with two different interpretations of equality.

I argue instead that the judgment in CG can be divided into two parts. The first part follows the conventional interpretation of equality based on merit. In this section, following closely the reasoning it had outlined previously in Dano,¹⁵³ the Court rehearsed its argument regarding equal treatment. It will not come as a surprise, therefore, that the Court found against the applicant on the decisive question of whether EU citizens who had applied for pre-settled status under the UK’s EU Settlement Scheme, which is UK national law, were entitled to equal treatment, ie, to have the same access to welfare benefits as UK citizens.¹⁵⁴ What makes CG interesting for the purposes of this article is the second part of the judgment, in which the Court argued that the mother and her children should be able to live a ‘dignified’ life;¹⁵⁵ it is here that the judgment departs from its predecessor of Dano. In Dano, the Court referred to the seminal case of Åkerberg Fransson,¹⁵⁶ on the basis of which it concluded that the Charter was not applicable because a Member State is not ‘implementing European Union law’ when establishing ‘the conditions for the grant of special non-contributory cash benefits and the extent of such benefits’.¹⁵⁷

In CG, by contrast, the Court reached the exact opposite conclusion. On the specific point regarding the applicability of the EU Charter, the Court found that.

[in] circumstances such as those in the main proceedings, the authorities of the host Member State implement the provisions of the FEU Treaty on Union citizenship, which … is destined to be the fundamental status of nationals of the Member States, and that they are accordingly obliged to comply with the provisions of the Charter.¹⁵⁸

Consequently, the Court was able to invoke Article 1 of the Charter, which specifically protects human dignity and has rarely been used by the Court so far.¹⁵⁹ At the same time, the Court failed to refer to Articles 20 and 21 of the Charter, which address equality and prohibit discrimination, respectively.

This omission of dignity is surprising because ‘[d]ignity clearly has a central role to play in relation to equality’.¹⁶⁰ Moreover, different jurisdictions have already adjudicated the link between dignity and equality. For example, the Supreme Court of Israel has argued that ‘[t]he right to human dignity thus includes those aspects of equality that guarantee protection of human dignity from violation, and that are closely related to it’.¹⁶¹ A similar point was made by the Supreme Court of Canada when it held that ‘[e]quality means that our society cannot tolerate legislative distinctions that treat certain people as second-class citizens, that demean them, that treat them as less capable for no good reason, or that otherwise offend fundamental human dignity’.¹⁶² I think that the bringing together of comparative aspects, ie, equal concern and respect, with a non-comparative dimension, ie, dignity, can improve the robustness of the interpretation of equality in a transnational context because it makes this kind of equality deontological rather than comparative. Such a development is to be welcomed if equality based on value is to provide the foundation for social Europe.

Obviously, a change in the interpretation of equality from merit-based to equality-based would constitute a major shift also in terms of building a social Europe based on substance. The Court, however, seems to be proceeding with caution at this stage, which can lead to frustration given the shortcomings I have outlined in relation to merit-based equality as the foundation of social Europe. Nevertheless, it is not surprising that the Court makes its decisions in a minimalist manner because it recognises that ‘small steps are often a response to the high costs of resolving large problems’.¹⁶³ Therefore, the Court’s approach can be seen as prudent because it makes an intervention in an area where there is considerable disagreement in (national) societies. The minimalist Court ‘knows that there is much that it does not know; it is intensely aware of its own limitations. It seeks to decide cases on narrow grounds. It avoids clear rules and final resolutions’.¹⁶⁴ Still, minimalist decisions can mark the beginning of an important political debate. This is pivotal because ultimately the building of a decent society, which should be the goal of social Europe, must be embedded in a wider political debate and cannot be achieved solely through the decisions of a court.

In this section, I have outlined an alternative to the interpretation of equality based on merit and argued that equality based on value would be better suited as the foundation of social Europe. This is so because this kind of equality generates a kind of solidarity which is based on condition. In other words, equality based on value focuses on (situational) vulnerability as a (human) condition and facilitates an ambitious understanding of solidarity. Although until recently the Court seemed not to have engaged with basic equality, a concept that resembles features of equality based on value, in the more recent case of CG, the Court almost inadvertently appears to use language that underpins the idea of treating someone as an equal. It is too soon to tell, however, whether the Court will eventually continue down that path and prove that it is serious about building a decent transnational society by virtue of a social Europe that is based on basic equality. At this stage, the most favourable interpretation of the Court’s activity is that the ECJ is acting as a minimalist court, which is flirting with the idea of interpreting equality based on value with an aim of addressing the condition of vulnerability which some experience due to the operations of the market.

4. Conclusion

This article has focused on social Europe, which has always been the blind spot of European integration and may suggest that Hayek’s scepticism towards building a welfare system on the transnational level may after all have been justified. It would appear that the EU has tried to overcome Hayek’s prediction by giving equality a prominent role in the fabric of social Europe. In other words, the EU has not tried to replicate a Sozialstaat on the transnational level but instead has sought through equality to open up national solidarity for EU citizens. In the course of this article I introduced two different interpretations of equality: one based on merit, which has been adopted by the EU but which has some significant shortcomings when used as the basis of social Europe, and the other based on value, which I have argued is the more suitable interpretation of equality for use as the basis for social Europe because it takes people seriously in their vulnerability.

It will not be surprising that, in the context of the EU, equality is interpreted as based on merit, meaning that equality is conceived as sameness and equality of opportunity. An interpretation of equality based on merit is attractive for the EU because it aligns with John Locke’s liberal individualism, which is so deeply embedded in the EU’s DNA.¹⁶⁵ In this model, people benefit from equality as sameness when they take on the role of market citizens, which in turn spills over into the nature of solidarity. Unsurprisingly, however, the building of a social Europe on the back of equality based on merit makes it difficult to disconnect the vulnerable individual from the ‘meritocratic society’,¹⁶⁶ on which the market is built; also, equality based on merit does not change the societal structure which is the cause of vulnerability.

Finally, I introduced an alternative interpretation of equality, which I argued is better suited as a basis for social Europe. In contrast to merit-based equality, a value-based interpretation takes people seriously in their condition of vulnerability. The focus on condition rather than role in relation to equality and solidarity means that equality also has the conceptual authority to change harmful social structures. This alternative interpretation of equality allows for a social Europe that can create ‘social realities and institutional structures’ which are fit for humans to live in.¹⁶⁷ The aim of this article was to offer a different perspective on the well-trodden path of equality and social Europe in the hope of providing some fresh impetus for discussion. In his preface to Anarchy, State and Utopia, Notzick writes that ‘[t]here is room for words on subjects other than last words’;¹⁶⁸ on a much more modest level, in this article, I presented such a subject.

Acknowledgement

I am grateful to Michael Dougan, Wendy Hanna, Dora Kostakopoulou, Aoife O’Donoghue and the participants of the Workshop on Solidarity (10 May 2022) at Essex University organised by Esin Küçük and Eleni Karageorgiou; and to Eglė Dagilytė for providing written feedback. In particular, I would like to thank Dagmar Schiek who made encouraging, extensive and very helpful comments, and also the two anonymous reviewers and the editors of this journal for their challenging questions.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 ‘Equality’ and ‘non-discrimination’ are used interchangeably throughout this paper, as the Court does not clearly distinguish between them (E Muir, EU Equality Law: The First Fundamental Rights Policy of the EU (OUP 2018) 21.)

2 C O’Cinneide, ‘Completing the Picture: The Complex Relationship between EU Anti-Discrimination Law and “Social Europe”’ in N Countouris and M Freedland (eds) Resocialising Europe in a Time of Crisis (CUP 2013) 119.

3 M Dougan and E Spaventa, ‘“Wish You Weren’t Here … ” New models of Social Solidarity in the European Union’ in M Dougan and E Spaventa (eds) Social Welfare and EU Law: Essays in EU Law (Hart 2005) 183.

4 A Williams, The Ethos of Europe. Values, Law and Justice in the EU (CUP 2010) ch 1.

5 FA Hayek, ‘The Economic Conditions of Interstate Federalism’ in FA Hayek (ed), Individualism and Economic Order (U Chicago Press 1980) 265–66.

6 D Schiek, ‘Towards More Resilience for a Social EU—the Constitutionally Conditioned Internal Market’ (2017) 13 European Constitutional Law Review 611, 624, fn 59 (for further references).

7 MC Nussbaum, The Monarchy of Fear: A Philosopher Looks at our Political Crisis (Simon & Schuster 2018).

8 D Schiek and others, ‘Introduction’ in D Schiek and others (eds) European Economic and Social Constitutionalism after the Treaty of Lisbon (CUP 2011) 33.

9 A Somek, Engineering Equality: An Essay on European Anti-Discrimination Law (OUP 2011) 6.

10 A Somek, ‘Antidiscrimination and Decommodification’ (January 2005) University of Iowa Legal Studies Research Paper <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=651441> accessed 28 April 2024.

11 Somek, Engineering Equality (n 9) 18.

12 Treaty Establishing the European Economic Community, 25 March 1957.

13 SB Lahuerta and A Zbyszewska, ‘EU Equality Law After a Decade of Austerity: On the Social Pillar and Its Transformative Potential’ (2018) 18 International Journal of Discrimination and the Law 163, 165.

14 R Xenidis, ‘Transforming EU Equality Law? On Disruptive Narratives and False Dichotomies’ 38 (2019) 38 Yearbook of European Law e2, e19.

15 Ibid e41.

16 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, 2007/C 306/01.

17 S Burri, ‘Equal Treatment: the EU approach’ in T Pennings and G Vonk (eds), Research Handbook on European Social Security Law (Edward Elgar 2015) 232–38.

18 D Kostakopoulou, ‘Conclusion: Towards a Humanistic Philosophy of the European Union’ in N Ferreira and D Kostakopoulou (eds), The Human Face of the European Union: Are EU Law and Policy Humane Enough? (CUP 2016) 393–411.

19 Opinion of AG Sharpston, Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm) ECLI:EU:C:2010:560 para 128; on the Opinion of AG Sharpston, see NN Shuibhne, ‘“When Citizens Move, They Do So as Human Beings, Not as Robots”’ in G Butler and L Lazowski (eds), Shaping EU Law the British Way: UK Advocates General at the Court of Justice of the European Union (Hart 2022) 455.

20 MA Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20 Yale Journal of Law & Feminism 1

21 RE Goodin, Protecting the Vulnerable. A Reanalysis of Our Social Responsibilities (U of Chicago Press 1985) 112.

22 S Pemberton, Harmful Societies: Understanding Social Harm (Policy Press 2015) ch 1.

23 IM Young, Responsibility for Justice (OUP 2011) 52.

24 V Mantouvalou, Structural Injustice and Workers’ Rights (OUP 2023) 23.

25 Pemberton (n 22) 34.

26 P Zumbansen, ‘Law as Critical Cartography: Global Value Chains, Borders, and the Spatialisation of Vulnerability’ (2023) 14 Transnational Legal Theory 1, 17–22.

27 HJ Chang, Bad Samaritans. The Guilty Secrets of Rich Nations and the Threat to Global Prosperity (Business Books 2007) ch 1.

28 F Lovett, A General Theory of Domination and Justice (OUP 2010) 25.

29 G Esping-Anderson, The Three Worlds of Welfare Capitalism (Polity Press 2006) 21–23.

30 Zumbansen (n 26) 1.

31 A Lloyd, The Harms of Work: An Ultra-Realist Account of the Service Economy (Bristol UP 2019) 96.

32 C Sedmak, ‘Human Dignity, Interiority, and Poverty’ in C McCrudden (ed), Understanding Human Dignity (OUP 2013) 566–67.

33 Mantouvalou (n 24) ch 3.

34 C Mackenzie, ‘The Importance of Relational Autonomy and Capabilities for an Ethics of Vulnerability’ in C Mackenzie, W Rogers and S Dodds (eds), Vulnerability: New Essays in Ethics and Feminist Philosophy (OUP 2014) 38.

35 BS Turner, Vulnerability and Human Rights (Pennsylvania State UP 2006) 35.

36 Mackenzie (n 34) 39.

37 Ibid.

38 Fineman (n 20) 8–15.

39 Young (n 23) 52.

40 Ibid 8.

41 PL Bernstein, Against the Gods: The Remarkable Story of Risk (Wiley 1998) 21.

42 J Feinberg, Harm to Others (OUP 1984) ch 1.

43 C Finkelstein, ‘Is Risk A Harm?’ (2003) 151 University of Pennsylvania Law Review 963, 967.

44 For an analysis of the causes and consequences of risk for contemporary workers, see H Spector, ‘A Risk Theory of Exploitation’ in Hugh Collins and others (eds), Philosophical Foundations of Labour Law (OUP 2018) 205.

45 U Beck, Risk Society: Towards a New Modernity (Sage 1992) 35 (emphasis added).

46 T Piketty, Capital in the Twenty-First Century (The Belknap Press of Harvard UP 2014) 20 (emphasis added).

47 Luke 10:25–37.

48 H Brunkhorst, Solidarität: Von der Bürgerfreundschaft zur globalen Rechtsgenossenschaft (Suhrkamp 2002) 10.

49 H Arendt, On Revolution (Penguin 1977) 79.

50 A Sangiovanni, Solidarity: Nature, Grounds and Value (Manchester UP 2023) 10.

51 On the broadening scope of social assistance, see M Jesse and DW Carter, ‘Life after the “Dano-Trilogy”: Legal Certainty, Choices and Limitations in EU Citizenship Case Law’ in N Cambien, D Kochenov and E Muir (eds), European Citizenship under Stress: Social Justice, Brexit and Other Challenges (Brill Nijhoff 2020) 157–67.

52 CJ Bickerton, D Hodson and U Puetter, ‘The New Intergovernmentalism: European Integration in the Post-Maastricht Era’ (2015) 53 Journal of Common Market Law Studies 703, 705.

53 Opinion of AG Villalón in C-51/08, Commission v Luxembourg, ECLI:EU:C:2010:525, para 138.

54 Case C-542/09, Commission v The Netherlands ECLI:EU:C:2012:346 para 65.

55 M Everson, ‘The Legacy of the Market Citizen’ in J Shaw and G Moore (eds), New Legal Dynamics of European Union (Clarendon Press 1995) 85.

56 Case C-184/99, Grzelczyk, ECLI:EU:C:2001:458 para 44.

57 Case C-135/08, Rottmann, ECLI:EU:C:2010:104 para 51.

58 Case C-333/13, Dano ECLI:EU:C:2014:2358.

59 Case 139/85 Kempf ECLI:EU:C:1986:223 para 14.

60 Case 53/81 Levin ECLI:EU:C:1982:105 para 18.

61 Joined cases C-22/08 and C-23/08, Vatsouras ECLI:EU:C:2009:344 para 40.

62 M Steinfeld, Fissures in EU Citizenship: The Deconstruction and Reconstruction of the Legal Evolution of EU Citizenship (CUP 2022) 44.

63 Ibid 284.

64 Everson (n 55) 84.

65 EF Kittay, Love’s Labor: Essays on Women, Equality and Dependency (Routledge 1999) 118.

66 M Albertson Fineman, The Autonomy Myth: A Theory of Dependency (The New Press 2004).

67 C O’Brien, ‘Civis Capitalist Sum: Class as the New Guiding Principle of EU Free Movement Rights’ (2016) 53 Common Market Law Review 937, 947.

68 S Fredman, Discrimination Law (3rd edn, OUP 2022) 9.

69 Case 14/59, Ruckdeschel ECLI:EU:C:1977:160 para 7.

70 KW Simons, ‘Equality as a Comparative Rights’ (1985) 65 Boston University Law Review 387, 413.

71 Fredman (n 68) 9.

72 R Dworkin, ‘What is Equality? Part 3: The Place of Liberty’ (1987) 73 Iowa Law Review 1, 5.

73 Sangiovanni (n 50) 16.

74 D Chandler and J Reid, The Neoliberal Subject: Resilience, Adaptation and Vulnerability (Rowman & Littlefield 2016) 15.

75 A Wildt, ‘Solidarität—Begriffsgeschichte und Definition heute’ in K Bayertz (ed), Solidarität: Begriff und Problem (Suhrkamp 1998) 211.

76 M Hechter, Principles of Group Solidarity (U of California Press 1987) 73–77.

77 RD Putnam, Bowling Alone. The Collapse and Revival of American Community (Simone & Schuster Paperbacks 2000) 20–21.

78 O’Brien, ‘Real links, abstract rights and false alarms: The relationship between the ECJ’s “real link” case law and national’ (2000) 33 European Law Review 643, 647–50.

79 HW Micklitz, The Politics of Justice in European Private Law: Social Justice, Access Justice, Societal Justice (CUP 2018) 83.

80 Dano (n 58) paras 77–84.

81 Ibid, para 66.

82 TM Scanlon, ‘Interpreting Blame’ in JD Coates and NA Tognazzini (eds), Blame: Its Nature and Norms (OUP 2013) 88.

83 M Landis Dauber, The Sympathetic State (U of Chicago Press 2013) 11–16.

84 T Nagel, ‘Equal Treatment and Compensatory Discrimination’ (1973) 4 Philosophy & Public Affairs 348, 353.

85 Xenidis (n 14) e27.

86 GA Moens, ‘Equal Opportunities Not Equal Results: Equal Opportunity in European Law after Kalancke [sic]’ (1997) 23 Journal of Legislation 43; see also D Schiek, ‘Positive Action before the European Court of Justice—New Conceptions of Equality in Community Law? From Kalanke and Marschall to Badeck’ (2000) 16 International Journal of Comparative Labour Law and Industrial Relations 251.

87 On the social pillar, see S Deakin, ‘What Follows Austerity? From Social Pillar to New Deal’ in F Vandenbroucke, C Barnard and G De Baere (eds), A European Social Union after the Crisis (CUP 2018) 192.

88 E Bassot, ‘The Six Policy Priorities of the von der Leyen Commission: State of Play in Autumn 2022’ (EPRS PE 733.638—September 2022) <www.europarl.europa.eu/RegData/etudes/IDAN/2022/733638/EPRS_IDA(2022)733638_EN.pdf> accessed 10 June 2023.

89 P Westen, Speaking of Equality: An Analysis of the Rhetorical Force of ‘Equality’ in Moral and Legal Discourse (Princeton UP 1990) 164.

90 A Mason, Levelling the Playing Field: The Idea of Equal Opportunity and its Place in Egalitarian Thought (OUP 2006) ch 1.

91 SJD Green, ‘Competitive Equality of Opportunity: A Defense’ (1989) 100 Ethics 5.

92 JH Schaar, ‘Equality of Opportunity, and Beyond’ in JR Pennock and JW Chapman (eds), Equality (Atherton Press, 1967) 241.

93 MJ Sandel, The Tyranny of Merit: What’s Become of the Common Good? (Allen Lane 2020) 5.

94 Case C-77/95 Züchner, ECLI:EU:C:1996:425.

95 Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security OJ [1979] L 6/24.

96 Züchner (n 94) para 15.

97 Westen (n 89) 169.

98 Fineman (n 66) 23.

99 Young (n 23) 45 (emphasis added).

100 Ibid 52–64.

101 K Lippert-Rasmussen, ‘Justice and Bad Luck’ in EN Zalta and U Nodelman (eds), Stanford Encyclopedia of Philosophy (Spring 2023 edn) <https://plato.stanford.edu/archives/spr2023/entries/justice-bad-luck/> accessed 29 April 2024.

102 R Dworkin, ‘What is Equality? Part 2: Equality of Resources’ 1981 (10) Philosophy & Public Affairs 283, 293.

103 Ibid.

104 JE Roemer, Equality of Opportunity (Harvard UP 1998) 2.

105 J Viehoff, ‘Equality of Opportunity in a European Social Market Economy’ 2019 (57) Journal of Common Market Studies 28, 39.

106 Case C-158/07 Förster ECLI:EU:C:2008:630.

107 Ibid, para 52.

108 Ibid, para 45.

109 C O’Brien, Unity in Adversity: EU Citizenship, Social Justice and the Cautionary Tale of the UK (Hart 2017) 38.

110 JH Carens, The Ethics of Immigration (OUP 2015) 228.

111 Case C-147/03, Commission v Austria, ECLI:EU:C:2005:427.

112 CM Rieder, ‘Case C-147/03, Commission of the European Communities v Republic of Austria, Judgment of the Court (Second Chamber)’ 2005 (43) Common Market Law Review 1711, 1712–13.

113 Austrian Law on University Studies, para 36(1).

114 Commission v Austria (n 111) para 75.

115 TD Campbell, ‘Equality of Opportunity’ (1974–75) 75 Proceedings of the Aristotelian Society 51–52.

116 HG Frankfurt, On Inequality (Princeton UP 2015) 77.

117 ES Anderson, ‘What Is the Point of Equality?’ (1999) 109 Ethics 287, 289.

118 Sangiovanni (n 50) 10 (emphasis added).

119 R Dworkin, Taking Rights Seriously (Duckworth 1977) 227.

120 J Waldron, One Another’s Equal: The Basis of Human Equality (HUP 2017) 2.

121 Ibid.

122 M Rosen, Dignity: Its History and Meaning (Harvard UP 2012) 19.

123 Dworkin (n 119) 227 (emphasis added).

124 Waldron (n 120) 3.

125 Case C-328/20, European Commission v Austria ECLI:EU:C:2022:468.

126 Opinion AG de La Tour, Case C-328/20, European Commission v Austria ECLI:EU:C:2022:45 para 84.

127 Ibid, para 141 (emphasis in the original).

128 111 der Beilagen XXVI GP—Regierungsvorlage—Vorblatt und WFA.

129 Opinion AG de La Tour, Case C-328/20 (n 126) para 98.

130 European Commission v Austria (n 125) para 109.

131 Ibid, para 111.

132 Fredman (n 68) 255.

133 Frankfurt (n 116) 77.

134 For an analysis of the destructive impact of humiliation on society, see A Margalit, The Decent Society (N Goldblum tr, Harvard UP 1996) 44–48.

135 MJ Sandel, What Money Can’t Buy (Penguin 2012) 49.

136 J Waldron, ‘Lecture 2: Law, Dignity, and Self-Control’ in J Waldron (ed), Dignity, Rank, and Rights (M Dan-Cohen ed, OUP 2012) 58–59.

137 Ibid 59.

138 TM Scanlon, Why Does Inequality Matter? (OUP 2018) 19.

139 Ibid 21.

140 Ibid.

141 Frankfurt (n 116) 7.

142 Ibid 88.

143 Margalit (n 134) 231.

144 Sandel (n 135) 201–203.

145 Ibid 203.

146 Ibid (emphasis added).

147 Waldron (n 120) 39.

148 Scanlon (n 138) 23.

149 Ibid 22.

150 CJ Bickerton, European Integration: From Nation-States to Member States (OUP 2012) ch 3.

151 Case C-709/20 CG v The Department for Communities in Northern Ireland ECLI:EU:C:2021:602.

152 M Haag, ‘The Coup de Grâce to the Union Citizen’s Right to Equal Treatment: CG v The Department for Communities in Northern Ireland’ (2022) 59 Common Market Law Review 1081, 1104.

153 CG (n 151) paras 77–83.

154 Ibid, para 93.

155 Ibid, para 89.

156 Case C-617/10, Åkerberg Fransson ECLI:EU:C:2013:105.

157 Dano (n 58) para 91.

158 CG (n 151) para 88 (emphasis added).

159 T Lock, ‘Article 1 CFR: Human Dignity’ in M Kellerbauer, M Klamert and J Tomkin (eds), The EU Treaties and The Charter of Fundamental Rights (OUP 2019) 2099–100.

160 Fredman (n 68) 26.

161 HCJ 10203/03 ‘Hamifkad Haleumi’ Ltd v Attorney General (2008) para 51 (Procaccia J).

162 Egan v Canada [1995] 2 SCR 513 (543).

163 CR Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Harvard UP 2001) 47.

164 Ibid ix.

165 A Somek, Individualism: An Essay on the Authority of the European Union (OUP 2008) 188–89.

166 M Young, The Rise of the Meritocracy (Routledge Reprint edn 1994) xiv.

167 Kostakopoulou (n 18) 395.

168 R Notzick, Anarchy, State and Utopia (Blackwell Publishing 2010) xii.