September 27, 2016
Exclusion in the European Union has many different faces. It lies at the very core of identity formation, in which the self is contrasted with ‘the other’. It also has many different consequences. Constructing individuals, groups or even nations as ‘the other’ is a means to build a supposed justification for economic and social exclusion, lack of solidarity and denial of self-determination.
The Amsterdam Centre for European Law and Governance (ACELG) has recently published a collection of policy papers based on its fifth annual conference hosted at the University of Amsterdam on 20 November 2015. Against the backdrop of sustained austerity measures, the on-going financial crisis, and the refugee crisis, the annual conference addressed the themes of inclusion and exclusion in the EU.
At the time of the conference, the campaigning for the UK referendum on EU membership had not yet started but solidarity within the EU, immigration to the EU and migration within the EU had already been flagged as the dominant issues in the debate. At present, we know the majority of the UK population voted to leave the EU; yet this has not reduced the level of disenchantment with immigration and free movement in the EU. Questions about redistribution and solidarity are only being raised more forcefully. An exploration of the legal and political aspects surrounding these themes therefore remains a timely and necessary endeavour. The present collection offers a number of short papers discussing concepts, such as exclusion and refugee, as well as both legal and policy developments in the area of immigration, social policy and free movement.
The theme of inclusion and exclusion begs the question of how the EU deals with ‘the other’. The EU’s discomfort with the ‘other’ became visible with the physical closing of borders in 2015. The refugee crisis has highlighted many shortcomings in the EU asylum system, which has been qualified as hostile to refugees. In his contribution Jean-François Durieux discusses possible explanations for the hostility and depicts how refugees were completely excluded from the free movement ideal of the EU. He signals how the system might weaken the refugee concept and looks at possible ways to construct a system that is more inclusive.
Where border controls may lead to physical exclusion of people, austerity measures imposed by the EU can lead to social exclusion. Bart Vanhercke and Jonathan Zeitlin discuss the –streamlined – response of the EU to that type of exclusion. On the basis of a study of country specific recommendations, they signal that the social dimension and tackling the social consequences of the crisis seem to have been hidden in other topics such as labour market and education. Once these social elements are uncovered in the country specific recommendations it appears the social dimension of the European economic policy cooperation has never been so strong. Vanhercke and Zeitlin pay attention to the need of national ownership of recommended reforms for the purpose of improving implementation. One could object that this makes the EU input in social policy issues invisible, and hence difficult to recognize for the wider public. It could reinforce the idea that the EU is not capable to create a socially just and inclusive Europe. Clarification and transparency is one of the policy recommendations the authors put forward.
The theme of inclusion and exclusion of citizens of other Member States in the host State – intra-EU solidarity – figures in three papers in this collection, notably those of Paul Minderhoud and Sandra Mantu, Eleanor Spaventa, and Annette Schrauwen. They focus on what became one of the hottest issues in the Brexit debate: benefit tourism. The papers identify a tendency in the case law of the Court of Justice of the European Union to accommodate Member States’ claims that welfare tourism is threatening the public purse. Each paper contests this case law from a different perspective. Minderhoud and Mantu focus on lack of empirical evidence that welfare tourism is indeed a problem and point at subtle changes in the Court’s case law that in the end results in a solidarity between EU citizens only available for those who do not need it. Eleanor Spaventa makes the connection between the case law of the Court and the concept of EU citizenship. She describes three phases in the Court’s case law and worries that the third – present – phase not only has consequences for our understanding of EU citizenship, but also for fundamental rights jurisprudence of the Court and the role of the Court as motor of integration. Annette Schrauwen takes a closer look at the Court’s role in the debate on welfare tourism and analyses the proportionality test the Court uses in its case law on access to social benefits. The worrisome conclusion of these three papers is that the political debate and the accompanying discourses seem to infiltrate the Court’s case law.
The issues discussed in this collection of papers are quite diverse in substance. The refugee crisis links to the external relations of the EU, social policy is quite a soft area of law-making within the EU, whereas internal free movement of persons is one of the foundational areas of the EU. However, in general the line of argument is similar: Member States are reluctant to give up control over areas and issues that they perceive as lying at the core of their sovereignty. They want to remain in control of the answer to the question “who belongs” both in terms of physical presence and redistributive justice. Whether that position still makes sense in today’s Europe, is an entirely different matter.
 See e.g. Editorial Comments, CMLRev 2016 (53) 1-12, at 7acelg