ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

103 SOLIDARITY TOWARDS THE
‘OTHER’ – CURRENT CHALLENGES
IN THE EU CONSTITUTIONAL LAW
The European Union is, as we all know, in a deep crisis.
It is facing a sea of problems, which will almost certainly
be prevalent throughout 2016: the so-called refugees’
crisis, growing inequalities, impossible political consensus.
Many of the EU’s current issues are symptoms of a
larger problem: the loss of the European social project,
the abandonment of an idea of Europe as an inclusive
and plural community of equals. This panel aims at
discussing these questions, from different points of
view. First of all, from the unifying perspective of European
Constitutional law questioning its real normative
strength and proposing mechanisms to challenge legal
and executive measures that affect or exclude ‘the
other’. Secondly, regarding the specific status of refugees
and sustaining that a duty to protect may derive
from European Union Law in what regards internationally
displaced persons. Finally, analyzing the ECJ’s jurisprudence
on European citizenship and social rights.
Participants Mariana Rodrigues Canotilho
Ana Rita Gil
Rui Tavares Lanceiro
Name of Chair Andreia Sofia Pinto Oliveira
Room UL6 3119
Mariana Rodrigues Canotilho: European Constitutional
Law in crisis: between the inclusion of
the other and Realpolitik
The growth of social and economic inequalities in
the EU is a significant problem and leads to questions
about the capacity and willingness of the Union’s political
and constitutional actors to uphold and sustain
the European social model. This paper will analyze
the multi-level European constitutional system, and
try to determine the framework of protection of several
vulnerable groups (migrants, minorities, children,
citizens living in poverty). These individuals have been
especially affected by the economic and social crisis.
Having this in mind, the paper aims to propose
some answers to a few questions. Is there a reasonable
‘common core’ of fundamental rights’ norms that
can constitute a basis for the definition of minimum
standards of protection? Under this constitutional scenario,
are there legislative and/or executive measures
whose constitutionality could be doubtful? Which legal
mechanisms are at the citizens’ disposal to challenge
such measures?
duty may be grounded at European “constitutional
level”, as a result of two European principles: the
recognition of a right to asylum and a right to not be
subjected to inhuman treatments, read together with
the principle of solidarity amongst Member-States.
From this conjugation we may develop a constitutional
duty to protect forced migrants who are under
the jurisdiction of those Member States faced with
exceptional migratory pressure. Not only do States
have a duty to relieve other Member States from such
pressure, sharing both means and burdens, but also
they have the duty to, in consequence, receive people
who need international protection. Since these persons
may not have a specific link to the State, the link
that triggers the duty to protect them will be the solidarity
principle – understood as solidarity between
Member-States.
Rui Tavares Lanceiro: EU citizenship and crossborder
access to social benefits – the recent
evolution of the ECJ case-law
Since its creation, the concept of EU citizenship,
as well as the rights and duties it entails, has evolved
greatly, notably in the area of social rights. The ECJ’s
case-law broadened non-national EU citizens’ rights to
claim social benefits while narrowing Member States’
scope to restrict their access to national welfare systems.
However, the recent Dano and Alimanovic judgments
present a striking shift in relation to the previous
case-law, establishing limits on the right of EU citizens
to social assistance in host Member States. The right
to reside in another Member State appears to only
be unrestricted for three months: after that, the EU
citizens must show that they can support themselves,
or they must leave, in order to avoid becoming ‘an unreasonable
burden on the social system of the host
Member State’. Several questions remain. Were these
decisions an attempt to address the debate ‘welfare
tourism’? Is the ECJ backtracking? What is left of the
previous jurisprudence?
Ana Rita Gil: Duty to Protect Refugees – a result
from the principle of solidarity and the respect
for Fundamental Rights
A duty to protect may derive from European Union
Law in what regards internationally displaced persons
that are located in other Member-States. Such
Concurring panels 150