La falta de solidaridad de Europa ante la crisis humanitaria. Cuestionando el imaginario constitucional de la Unión Europea
| Autor | Antoni Abat Ninet, Acar Kutay |
| Cargo | Visiting Professor of Constitutional Law and Legal Theory at the Faculty of Law, The Hebrew University of Jerusalem/Visiting Associate Professor, Human Rights Institute, Southwest University of Political Science and Law (under High-Level Foreign Talents Program of China) |
| Páginas | 99-111 |
EUROPE’S LACK OF SOLIDARITY IN ITS RESPONSE TO THE HUMANITARIAN
CRISIS. JEOPARDIZING THE EUROPEAN UNION’S CONSTITUTIONAL IMAGINARY
Antoni Abat Ninet*
Acar Kutay**
Abstract
The European Union’s (EU) constitution and constitutionalism is best seen as a sphere of contested imaginaries, competing
narratives over the legal-political construction of Europe. These imaginaries have been historically reinforced by EU technocrats
and political elites, as well as by various social and economic actors, whether progressive democrats or powerful businesses.
When technocrats and elites turned their hands to the project of the constitutionalization of the EU in the early 1990s, what they
had in mind was to legitimate the Union. In this respect, constitutionalization was necessary because the Union had ceased to
be a typical international organization. Laws, regulations, and policies that were adopted at EU level had an impact on citizens;
however, these had no inuence over either law-making or policy-making processes. The rst segment of this paper addresses the
forging of the EU’s constitutional identity through the juridication of values, imaginary, and constellations. It then analyses the
progressive creation of constitutional imagination at EU level and the eects on this imaginary that the lack of a proper answer
to the humanitarian crisis has caused. The paper ends by posing a set of questions that relate the ideological project of European
collective identity, the process of political integration and the role that the founding values of solidarity and human dignity may
play in these processes.
Key words: imaginary; constellations; constitutional identity; solidarity; human dignity; European Union.
LA MANCA DE SOLIDARITAT D’EUROPA DAVANT LA CRISI HUMANITÀRIA.
QÜESTIONANT L’IMAGINARI CONSTITUCIONAL DE LA UNIÓ EUROPEA
Resum
La constitució i el constitucionalisme de la Unió Europea (UE) són concebuts preferentment com un conjunt d’imaginaris
en confrontació, és a dir, relats que competeixen sobre la construcció juridicopolítica d’Europa. Aquests imaginaris han
estat històricament fomentats per tecnòcrates i elits polítiques de la UE, però també per diversos actors socials i econòmics,
ja siguin demòcrates progressistes o bé grups empresarials inuents. Quan els tecnòcrates i les elits es van dedicar al
projecte de constitucionalització de la UE cap als anys 90, el que pretenien era legitimar la Unió; perquè aleshores la
constitucionalització era necessària en esdevenir la Unió una organització internacional no gaire típica. A pesar que les
lleis, la normativa i les polítiques que es van adoptar en l’àmbit de la UE van tenir un impacte en els ciutadans, no van
afectar els processos legislatius o de presa de decisions polítiques. La primera part d’aquest treball explica com la identitat
constitucional de la Unió Europea s’ha forjat mitjançant la xació legal de valors, imaginaris i constel·lacions. Tot seguit,
s’analitza la creació progressiva de l’imaginari constitucional europeu i els efectes que ha tingut sobre aquest imaginari la
manca de respostes adequades a les crisis humanitàries. L’article clou plantejant una sèrie d’interrogants que relacionen
el projecte ideològic d’identitat col·lectiva europea, el procés d’integració política i el paper que els valors fundacionals de
solidaritat i dignitat humana poden desenvolupar en aquests processos.
Paraules clau: imaginari; constel·lacions; identitat constitucional; solidaritat; dignitat humana; Unió Europea.
* Antoni Abat Ninet, Visiting Professor of Constitutional Law and Legal Theory at the Faculty of Law, The Hebrew University of Jerusalem.
Mt. Scopus, 9190501 Jerusalem (Israel). antoni.abat@mail.huji.ac.il. ORCID 0000-0002-1091-0820.
** Acar Kutay, Visiting Associate Professor, Human Rights Institute, Southwest University of Political Science and Law (under High-Level
Foreign Talents Program of China). No. 301, Baosheng Ave, Yubei District, 401120 Chongqing Municipality (People’s Republic of China).
acarkutay@live.com. ORCID 0000-0003-1403-9195.
Article received: 13.01.2020. Blind review: 04.02.2020 and 13.02.2020. Final version accepted: 17.02.2020.
Recommended citation: Abat Ninet, Antoni, & Kutay, Acar. (2020). Europe’s lack of solidarity in its response to the humanitarian crisis.
Jeopardizing the European Union’s constitutional imaginary. Revista Catalana de Dret Públic, 61. 99-111. https://doi.org/10.2436/rcdp.
i61.2020.3403.
Antoni Abat Ninet; Acar Kutay
Europe’s lack of solidarity in its response to the humanitarian crisis. Jeopardizing the European Union’s...
Revista Catalana de Dret Públic, Issue 61, 2020 100
Summary
1 European Union values, imaginary, constellations, and constitutional identity.
2 EU constitutional imagination
3 Normative accommodation of the ideal of solidarity
4 The existential crisis and the jeopardizing of the utopia
5 Conclusion
Reference list
Antoni Abat Ninet; Acar Kutay
Europe’s lack of solidarity in its response to the humanitarian crisis. Jeopardizing the European Union’s...
Revista Catalana de Dret Públic, Issue 61, 2020 101
1 European Union values, imaginary, constellations, and constitutional identity.
The European Union’s (EU) constitution and constitutionalism is best seen as a sphere of contested imaginaries,
competing narratives in the legal-political construction of Europe. These imaginaries have been historically
reinforced by EU technocrats and political elites, as well as by various social and economic actors, whether
progressive democrats or powerful business groups (Wilkinson). When technocrats and elites turned their
hands to the project of the constitutionalization of the EU in the early 1990s, what they had in mind was to
legitimate the Union. In this respect, constitutionalization was necessary because the Union had ceased to
be a typical international organization. Laws, regulations, and policies that were adopted at EU level had an
impact on citizens; however, these were unable to inuence either law-making or policy-making processes.
As asserted in the famous motto “in varietate concordia”, the gap between the citizens and this new post-
national legal and political order was expanding. Nonetheless, the traditional constitutional imaginaries of the
past were found to fall short in grasping this new development. Many legal authors, philosophers, political
theorists, and technocrats agreed that new conditions resulting from the changing institutional structure of
the European Community required new constitutional imaginaries. Such imaginaries would help create a
post-national community that transcended the imaginaries of the national statehood.
This constitutional tale is fairly familiar, and EU constitutionalism has been a well-studied eld. There
is no need to rehash old debates. What is needed, if the EU’s fundamental constitutional values are to be
realized, is critical self-reection. Our aim in this short chapter is to demonstrate that although the process of
formalization of the EU has failed, its key constitutional values must and can still be rescued. More tellingly,
we engage here with a normative meaning of the EU constitution, although our view about normative
constitutions diers from that of normativity, whether from a legal positivist or natural law perspective
(Loughlin, 2014).
We agree therefore with Fossum and Menéndez on the need to distinguish between dierent conceptions
of the European constitution: the formal, material and normative (Fossum & Menéndez, 2011). Of these,
the normative perspective is key to this chapter. The normative dimension of the constitution includes: the
process through which the “constitution” of the EU was agreed, the rights granted and enforced by the EU’s
constitutional order, and the values that shape the frame of the constitution (Fossum & Menéndez, 2011).
In particular, we reect upon the founding values of the Union listed in Article 2 of the Treaty of the EU
(TEU), with a particular focus on the principle of solidarity. More concretely, we examine the implications
of the weak, or even lack of rule of law (not under the Anglo-Saxon notion of the term) and of an enforceable
principle of solidarity that puts the EU community, its credibility, and its collective imaginary at risk.
Solidarity is a fundamental value, as we will argue, for discussing the feasibility of the EU’s constitutional
imaginaries. The reason we focus on the legal dimension of solidarity is to expound the three normative
dimensions, as mentioned above. In procedural terms, the question concerns whether solidarity as a value
reects the democratic imaginations of the European peoples and, if so, to what extent. In terms of rights,
the issue is about whether the EU’s legal order is obliged to protect the rights of the world’s citizens from the
standpoint of solidarity and to what extent.
In other words, our point is that solidarity with those who seek support from the EU (e.g., in the case of the
refugee crisis) is not to be seen as or collapsed into an act of charity. While valuable, such an act would still
be an expression of superiority and of preservation of the hierarchical distinction between “us” and “them”.
By way of contrast, our approach to solidarity with “others” as a constitutional right is more about the rights
of Europeans to act collectively in a humanitarian crisis. In our words, we dene solidarity as a relational
right and a value through which Europeans can imagine themselves as a legal collective. Pace Schmitt’s
antagonistic dictum of distinguishing “us” from “them” in terms of enmity, in our case solidarity with others
creates and recreates collective identity. Dened in this way, solidarity is an identity-consolidating value;
that is, it is a way of acting in a “European” way (Von Bogdandy, 2005).
From this argument it follows that the constitutional imagination of the EU is endangered when solidarity
is not being practised as a constitutional value or is being violated by more identitarian interpretations of
solidarity. Solidarity is constitutive of the constitutional imaginations of the EU, and this point can be made
clearer when it is compared with the traditional, constitutional imaginations of the nation-state building
Antoni Abat Ninet; Acar Kutay
Europe’s lack of solidarity in its response to the humanitarian crisis. Jeopardizing the European Union’s...
Revista Catalana de Dret Públic, Issue 61, 2020 102
processes. Before we turn to the solidarity principle, we must draw attention to the often-cited issues relating
to the legitimacy of the EU constitution.
To start with, a formal constitution needs to be unique as higher norm, and is often written down and socially
recognized (Fossum & Menéndez, 2011). The EU constitution fails in this last respect because of the lack of
social recognition and real enforcement of many of the constitutional elements.
We believe that the current standpoint of the European constitutional project has not varied much since the
picture painted by Grimm and Preuß in their works over twenty years ago (Grimm, 1999). Even more, the
failure of the Treaty establishing a Constitution for Europe and a series of crises has intensied some of the
doubts and questions predicted by both authors. The understanding of the EU as a “monstro simile”, where
the strength and dominion of the Member States has augmented over the autonomy of the Union, where the
role of people is testimonial and the autonomy and eectiveness of the Union is at stake evidence some of the
challenges that the Union, its community, and its imaginary are facing. The failure of the EU constitutional
treaty demonstrates what Blokker pointed out—the important connection between the eects of populism
and the promises of constitutionalism (Blokker, 2019. Populism can be observed in the Member States but
also in the EU institutional framework and functioning (Oklopcic, 2015).
The EU constitutional project, like other constitutional projects, is aspirational and uses utopias and goals
to forge the constitutional identity of Europeans. Each constitution and constitutional project is thus
imaginary and has a degree of utopia and aspiration. A major trend in modern constitutionalism and the use
of constitutions as founding documents, exemplied by the American constitution, is for it to be seen as the
consolidation and norm(alization) of an imagined community. Consider, for instance, the construction of
new constitution-making subjects in parallel to constitutional founding. Mexicans, Peruvians, Bolivians,
Uruguayans, Argentinians, Chileans, etc., were all creations ex-novo, new, invented countries, with ags,
names, and newly invented imagined communities.
If the EU constitutional/technocratic construction had aimed to reproduce an old pattern of modern
constitutionalism by virtue of using the normative and sociological functions of a constitution, it would have
inevitably encountered serious problems in building a new identity for an imagined post-national community.
The nineteenth-century constitutional imaginaries were part of a larger process of emancipation from
monarchs, empires, and feudal systems. They are thus linked to the democratic struggles over the domination
of empires and privileged classes. Constitutional imaginaries in this age were built on this background, and
were tightly linked to a broader social transformation within which legal imaginations were part and parcel.
The EU, however, started its constitutional project in a completely dierent context and for a very dierent
purpose—identity creation and consolidation that did not require democratic approval or even participation,
as happened in the nineteenth-century state-building by technocrats and through legal enforcement. In fact,
as Anderson (1991) remarks, all the communities are imagined and are to be distinguished not by their
falsity/genuineness, but by the style in which they are imagined. The EU constitutional project, like other
constitutional projects, is aspirational and uses utopias and goals to forge a new constitutional identity
of Europeans. When EU academics, research centres, policy makers, and theorists refer to “European
constitution and constitutionalism” they are creating a political imagination; they are stressing the signied
component of the concept, they are painting an image of a “constitution” and a “constitutional system” to
gain authority, Herrschaft, legal supremacy, and the proto-legitimacy that a constitution implies.
In the very concrete casuistry of the EU constitutional imagination there is an aggravated need to reinforce
through discourse and narrative the idea and legitimacy of a constitutional framework for the Union. This
existential requirement is even more acute because of the lack of explicit democratic support for the EU
constitutionalization project. As has been acknowledged (Mac Amhlaigh, 2011), the constitutional character
of the Union has its foundation in international treaties and a series of seminal judgments on the nature of the
treaty system which established the former European Economic Community (ECC); the EU’s judicial arm,
the European Court of Justice, then established the foundations for the EU to become a constitutional polity.
This kind of constitutional framework, made behind the backs of the people, has tried to nd dierent
sources of legitimacy. By way of example, there has been a theoretical eort to compare the EU’s
Antoni Abat Ninet; Acar Kutay
Europe’s lack of solidarity in its response to the humanitarian crisis. Jeopardizing the European Union’s...
Revista Catalana de Dret Públic, Issue 61, 2020 103
undemocratic constitutional founding with U.S. constitutional experience since Judge Marshall’s famous
decision in Marbury v. Madison (Halberstam, Cormac Mac Amhlaigh, et al.). This analogy is arguable and
also transplants to the European scenario some of the open debates seen at the U.S. constitutional founding
moment between the Federalists and the Anti-federalists.
The undemocratic legitimacy of the European constitutional project evidences a political paradox, since
democracy is at the heart of the EU’s self-understanding, and the Union has dened democracy as a part of
the “cultural, religious and humanist inheritance of Europe”, and it is included among the founding values
in Article 2 TEU (Scicluna, 2014).
As previously mentioned, the 2004 Constitutional Treaty was, in some ways, an attempt to redress this
imbalance between law and politics; though couched in legal terms, it was an attempt to energize and enlarge
an incipient European public sphere. The constitution’s framer sought to publicize and politicize the EU, in
order to democratize it (Scicluna, 2014).
After the defeat of the 2004 Constitutional Treaty, Euro-bureaucrats and constitutional ideologists, ignoring
the express opposition of the Dutch and French voters and the massive blow that this gave to the EU project,
limited the democratic opposition to mere semantics; that is, to the use of the term “constitution” but not the
constitutional essence. The EU constitutionalization path followed by oces, technocrats and stakeholders
was based on “post-democratic executive federalism” (Habermas, 2013).
One inconvenience of this kind of post-democratic legitimacy is that it does not take into account the ways
that European people (or peoples) imagine their social identity at the highest legal level (the constitution), or,
quoting Taylor (2004), “the ways that people imagine their social existence, how they t together with others,
and the deeper normative notions and images that underlie these expectations”.
The developments in the aftermath of the constitutional failure seem to heighten the image of the EU as
a far-away bureaucratic monster and its constitution as a “product of laboratory” that aims to impose an
imaginary instead of accommodating the way in which ordinary European citizens “imagine” the Union and
the condition of “European”.
Updating Grimm’s prediction in 1995 (Grimm, 1995), the EU project is still missing the self-determination
of the Union’s citizens, the basic decisions are not taken by the people of the Union or in their name; the
people of Europe are not the constitutional legislator and the Member States determine the form and the
development of the Union.
The Member States are still the “Masters of the Treaties” even though there is sucient evidence to show
that many of the Union’s problems require a political treatment that the state framework of the European
States cannot eectively provide. The inability to respond eectively to the humanitarian crisis, the lack of
an enforcement of the measures of Article 7 TEU against Poland and Hungary, or the lack of the rule of law
in the EU, conrm this incapability (Kochenov, 2015).
2 EU constitutional imagination
The EU constitutional imagination is grounded in two dimensions: a normative (2.1) and an ideological one
(2.2), which are inter-dependent and inter-connected symbiotically.
2.1 The normative cornerstone is very relevant due to the lack of explicit democratic support for the
constitutional project. The EU constitutional idea that technocrats deploy is purely normative, based on a
Kelsenian understanding of the Grundnorm. The purely normative interpretation of the system is remitting
in favour of an intrinsic, systemic source of legitimacy based on the principle of the “rule of law”.
The European Commission has remarked that the EU is based on the rule of law; every action taken by
it is founded on treaties approved voluntarily and democratically by all EU member countries. The rule
of law is considered as a founding principle stemming from the common constitutional traditions of all
Member States, and is one of the fundamental values upon which the EU is based. According to the European
Commission, respect for the rule of law is also a prerequisite for the protection of all fundamental values
Antoni Abat Ninet; Acar Kutay
Europe’s lack of solidarity in its response to the humanitarian crisis. Jeopardizing the European Union’s...
Revista Catalana de Dret Públic, Issue 61, 2020 104
listed in the treaties, including democracy and fundamental rights. The circularity of this statement—it is
both one of the fundamental values and at the same time a prerequisite for the protection of all fundamental
values—is also revelatory of the ideological nature of the statement (Abat, 2019).
Article 2 TEU denes the founding values of the Union, which include the rule of law. The article also
establishes respect for human rights as a value, including the rights of persons belonging to minorities.
However, in other legal instruments the Union emphasizes that respect for the rule of law is a prerequisite for
the protection of all the fundamental values listed in Article 2 TEU.
All EU institutions have a complementary role to play in promoting and maintaining the rule of law in the
EU. The rule of law is also conceived as a “common value” of the EU and is protected by the preventive
mechanism of Article 7 (1) TEU, which allows the Council to give an EU country a warning before a serious
breach has materialized.
However, the principle of “rule of law” is not only understood in the traditional Anglo-Saxon sense (limitation
of power and authority), but in the sense of the German false synonyms Rechtsstaat and Herrschaft, which
focus more on the “constitutional state”, the “empire of law”, both of which stem from a less mystic and
romantic idea. The rst refers to an attempt to bind state and law together and the second is linked to
the concept of Rationale Herrschaft, the purposive rationality that characterizes formal legal constitutional
systems (Breuer, 2011).
EU technocrats and stakeholders’ epistemological use and abuse of the principle of the rule of law combine
the ideological element of the concept of Rechtsstaat that Weber criticized and the element of rationalization
and dominion of the concept of Herrschaft.
Due to its pure normative essence, the EU constitutional imagination lies in the legal supremacy and primacy
of EU law; supremacy is understood as the highest authority of the (diverse) fundamental norms of the EU
over national constitutions—a principle that has been contested since it rst emerged 50 years ago. This
supremacy implies that European law cannot be overridden by acts of domestic legislation and that, in cases
of conict between EU law and the law of the Member States, EU law must prevail and conicting national
law must be set aside (Méndez-Pinedo, 2016).
The goal of this principle is to assure a uniform and eective application of EU law in all the 28 (BREXIT
pending) Member States (Méndez-Pinedo, 2016). The doctrine was created by the case-law of the European
Court of Justice (ECJ) in a series of seminal rulings going back to the 1963 and 1964 Van Gend & Loos and
Costa/Enel cases, followed by a case in 1970 when the ECJ ruled explicitly that EU law prevails over national
constitutions (Case 11/70 Internationale Handelgesellschaft ECR 1125), and more recently by Declaration
no.17 annexed to the Treaty of Lisbon as well as the Melloni Case c-399/11.
The concept of primacy/supremacy has reached a high level of sophistication and, according to EU
constitutional texts and case-law, the primacy of the EU is absolute; it has explicit total primacy in application
and implicit supremacy in validity and substance. This supremacy/primacy is the essential legitimating
element of the EU constitutional imaginary and its self-attributed constitutional character. It is a supremacy
that has been imposed on the Member States and which resides in a high degree of technication of EU
law. Nevertheless, when the German Constitutional Court rst (Solange I and Solange II), and then other
Supreme/Constitutional courts of Denmark, Czech Republic, Italy, and Spain contested this principle of EU
primacy and supremacy, national sovereignty was said to be jeopardizing the very constitutional essence of
the EU.
Acknowledging that the legitimacy of the EU constitutional imaginary resides in the principle of the rule
of law, due to the absence of the principle of democracy as a source, the question is whether, as asserted by
Kochenov (2015), the principle of the rule of law is lacking in the Union?
2.2 The second cornerstone of the EU constitutional project is ideology and aspiration, or the way in which
the EU is creating and enforcing semiotics to build up a constitutional imagination and expectations. This
imaginary is necessary because the rule of law is not the EU’s institutional ideal (Kochenov, 2015).
Antoni Abat Ninet; Acar Kutay
Europe’s lack of solidarity in its response to the humanitarian crisis. Jeopardizing the European Union’s...
Revista Catalana de Dret Públic, Issue 61, 2020 105
The semiotic construction of the constitutional imagination was already included in the agenda of the Union,
even when it was conceived to be merely an economic market. After the failure of the Treaty establishing a
Constitution for Europe to accommodate the Union in a single norm, there was a progressive constitutional
imagination of concepts, symbolism and imaginaries, virtues and values, aspirations and hopes based not
only on reality or rationality. Progressively, the Preamble of the founding documents of the Union reproduced
the quintessential elements of the narratives and discourses of this social imaginary, of the EU as a political
and constitutional actor.
The EU is self-proclaimed as a legitimate inheritor and continuator of some of the most celebrated values
of constitutionalism and human rights. Nonetheless, just like all great political communities, it cannot be
considered cosmically central despite the medium of sacred language inscribed in the legal text. Rather, the
EU is an imagined community, and constitutional imaginaries are key to imagining such community.
This is an idealistic narrative that avoids mentioning or repudiates the fact that we Europeans are also
responsible for creating the swastika, as Sartre pointed out when addressing the horrors of European
colonization around the world (Sartre, 1956). The European construction has been omitting this dark side
of our recent history in its narrative and social imaginary, an omission that has had unforeseeable political
consequences.
The European project was thought to be a reaction to ethnic nationalism that wrecked the peace and marred
the prospects of all mankind (Churchill, 2009). This nationalism poses a potential threat that seems to be
being reproduced in some Member States and which is calling the Union into question. And probably, were
it not for its masking of the ideology-building process, the Union would not be facing some of the challenges
that it is currently experiencing or would be in a better position and possess better tools to respond.
The imaginary construction of the EU community has not erased or tempered the way in which certain
Member States perceive themselves as a great classical community despite the contradictions inherent in a
project that comprises multiple identities. The last diplomatic crisis between the Presidency of Mexico and
the Kingdom of Spain evidences this potential imaginary identity collision. As the 500th anniversary of the
1521 Spanish conquest of the Aztecs approaches, the President of Mexico, Mr. López Obrador, proposed
that the King of Spain and Pope Francis ask forgiveness for the abuses inicted on the indigenous peoples
of Mexico.1
The government of Spain deeply regretted that the letter the Mexican president sent to His Majesty the King,
whose contents it rmly rejects, was made public, and said in a statement: “The arrival, 500 years ago, of
Spaniards to present Mexican territory cannot be judged in the light of contemporary considerations”.2 Other
representatives of the two major political parties considered that Spain should instead celebrate its historical
role in Mexico “with pride”, “the way great nations do, those that have contributed to the discovery of other
people”, and considered the demand as “an intolerable oence to the Spanish people”.3
The Spanish response ts perfectly with Anderson’s denition of classical community through sacred language
and the understanding that the Indian is ultimately redeemable by impregnation with white, “civilized”
semen (Anderson, 1991). The point is that this narrative does not align well with the collective imaginary
creation of the EU that deviates from the templates of Eurocentric imagination concerning the nature and role
of postcolonial constitutions (Oklopcic, 2018). The constitutional identity of modern democratic states is not
shaped by a dominant ethnicity or ideology.
The EU has abused social imaginaries, goals, and values. The overdose of symbolism and unenforced
“values” is threatening the functionality of the Union in certain relevant areas that were intended to build
and strengthen our European identity and the process of political integration.
The transformation of the economic market into a political entity and a social landscape can be considered as
the starting point of a political and epistemological strategy emphasizing “social imaginary” (Papakostas &
1 See New York Times (2019, March 27).
2 See The Local (2019, March 26).
3 See note 1.
Antoni Abat Ninet; Acar Kutay
Europe’s lack of solidarity in its response to the humanitarian crisis. Jeopardizing the European Union’s...
Revista Catalana de Dret Públic, Issue 61, 2020 106
Pasamitas, 2015). The Lisbon Strategy process has moved on from creating a well-established social vision
by producing a more eective and inclusive discourse in its attempt to achieve hegemony, turning the “myth”
into a social imaginary. A myth can be transformed into a social imaginary if it is hegemonized at discourse
level or when it becomes clearly legitimated at political level.
Undeniably, “Social Europe” in the Lisbon Strategy process gives greater clarity and depth and has been
successful in incorporating many specic social demands in a more coherent fashion (Papakostas &
Pasamitas, 2015).
The abuse of social imaginary is evident in two perspectives; the rst one is more theoretical, and applying the
denition proposed by Castoriadis (1975), the EU institutions and policy makers are not attaching meanings,
representations, orders, injunctions, or incentives to do or not to do, to consequences.
The lack of functionality to enforce the founding values of the Union, such as solidarity, rule of law, democracy,
or human dignity, has shown an image of the Union that Poland’s President Andrzej Duda advantageously
dened as an imaginary community.4 The lack of functionality evidences the lack of a link between means
and goals or causes and eects, the strict correspondence between the character of the institutions and the
“real needs” of the society in question, and the integral and uninterrupted circulation between the “real” and
the “rational-functional” (Castoriadis, 1975). Recent events have shown that the Union lacks this necessary
circulation; the images and narratives of Article 2 TEU are not in circulation with the “real”.
Kochenov (2015) asserts this fact when he describes the functionality problem that the EU is facing due to
its inability to enforce the value of the rule of law since it has no enforcement “machinery”.
The lack of correspondence between the “real” and the “rational-functional” highlights the sui generis political
nature of the Union, the continuous “work in progress” model, the reductionist criticism that characterizes
the Union as a bureaucratic and distant political apparatus, the eternal accusation of democratic decit and
the continuous “crises” that the EU has been facing since its process of political integration. Yet, none of
these have given any incentive to restraining the use of the social imaginary.
3 Normative accommodation of the ideal of solidarity
Solidarity as a fundamental principle of European integration was mentioned for the rst time in the 1950
Schuman Declaration and was subsequently incorporated into the Preamble of the 1951 treaty establishing
the European Coal and Steel Community (Giannakopoulos, 2017). The Preamble of the Treaty of Maastricht
(1992) served as a sort of “birth certicate”, providing a constitutional “home”/“identity” for the concept
(Jacobsohn, 2010).
The inclusion of a provision in a preamble has more than just political signicance, it is an authoritative
recital of the Treaty’s purposes and the framers’ intent, which are understood to play a role in constitutional
interpretation (Leiter, 1990). The reference to solidarity in the preamble reects the progressive political
integration envisioned by the EU. The Preamble of the Maastricht Treaty includes not only an important
interpretive principle, but also makes a declarative statement on the purpose that explicates principles of
positive law.
The Treaty of Lisbon strengthens the concept of solidarity and Article 2 TEU includes solidarity among the
common values of the Member States that must prevail. Its inclusion in this article has strong political and
legal implications. A breach of the value of solidarity can trigger the application of the measures prescribed
in Article 7 TEU. This special protection aims to give a real applicability and aversive sense to the value,
which prevent it from being simply aspirational (Scheppele, 2003). This conceptualization also determines
its objectives (Zielbestimmung).
Solidarity is now a general legal principle of law in the Union. In this sense, it is not only an abstract value, but
also a feature of the EU’s constitutional identity. The prominence of solidarity in the Charter of Fundamental
Rights of the European Union (CFR) also demonstrates its fundamental importance in the Union (Klamert,
4 See Financial Times.
Antoni Abat Ninet; Acar Kutay
Europe’s lack of solidarity in its response to the humanitarian crisis. Jeopardizing the European Union’s...
Revista Catalana de Dret Públic, Issue 61, 2020 107
2014). Other primary EU laws that accommodate the principle of solidarity are the Preamble and Chapter
IV of the CFR and the “solidarity clause” established by Article 222 of the Treaty on the Functioning of the
European Union (TFEU). Solidarity is mentioned in the TEU as a common value and mission of the EU with
regard to the mutual relations of Member States, their relations with third countries and relations between all
citizens of the Union. Moreover, it is incorporated in articles of primary European law establishing specic
guarantees, full rights, and equally full obligations (Giannakopoulos, 2017). Some examples in EU secondary
law stemming from the principle of solidarity are the Declaration (No 37) on Article 222 of the TFEU and
the Council Decision of 24 June 2014 on the arrangements for the implementation of the solidarity clause
by the Union.
The ECJ has applied the principle of solidarity in a case concerning complaints made by self-employed
workers against compulsory contributions to the mutual fund established to provide social protection. The
court has also cited the solidarity clause to defend certain welfare schemes from the application of competition
law, to validate obstacles to free movement and to justify requiring state authorities to provide temporary
nancial support to immigrant citizens. The ECJ has also become highly inuential regarding citizens’ rights
within the framework of EU solidarity principles (Giannakopoulos, 2017).
The ECJ has had to interpret the principle of solidarity in relation to the principles of sovereignty and
autonomy of the Member States. Simultaneously, as remarked by Knodt & Tews (2014), the Court has dealt
with dierent concepts of solidarity pertaining to dierent actors, peoples of the EU, the Member States, and
non-EU actors. The classic concept of solidarity focuses on closer communities, and the nation-state context
does not seem to be exible enough to t the EU political reality. The problem seems to be that it is not only
the individual that is a bearer of solidarity within the EU, but also the Member States as collective actors
(Knodt & Tews, 2014).
EU law denes the concept of solidarity imprecisely and with heterogeneity. The EU conceptualization
has an ethical dimension and is also related to the concept of identity. The context of solidarity is linked
with other principles such as integration, subsidiarity and loyalty (Klamert, 2014). Even in the case of the
principle of loyalty in relation to national identities, the principle of solidarity is subject to some pressure. A
Union of States, without solidarity, will inevitably breach the principle of loyalty and cooperation when the
particular interest of one Member State clashes with the interests of another.
Solidarity in EU law is the expression of a variety of nancial obligations and political support which are
essential for the functioning of an organization whose raison d’être has long been limited exclusively to the
economic dimensions of cooperation. The principle of solidarity represents a lofty political goal that compels
the Member States to support each other mutually and pursue a common political goal, as well as to be
integrated into the Union (Klamert, 2014).
The EU refers continuously to the principle of solidarity but attaches imaginary rather than concrete meanings.
In this respect, it is relevant to consider the debate of Chancellor Angela Merkel and the president of the
European Commission, Jean Claude Junker, in the Plenary of the European Parliament on the vision for the
future of Europe.5 When addressing the principle of solidarity the participants explained that: “Solidarity is
based on tolerance and this is Europe’s strength. It is part of our common European DNA […] Solidarity also
means that if you weaken the rule of law in one country or attack freedom of press in one country, you do
so in the whole of the EU”.6 This is yet another example of the signier (sound, image) without the signied
(concept).
4 The existential crisis and the jeopardizing of the utopia
As Janer Manila (2009) states:
“The Mediterranean is: Jerusalem, Cairo, Venice, Alexandria, Dubrovnik, Rome, Istanbul, Barcelona,
Eivissa, Granada, Izmir, Algiers… the symmetries of the Alhambra so close to the constellations. And Homer,
Socrates, Averroes, Ramon Llull, Galileo, Michelangelo, Leonardo, Gaudí, Joan Miró… In the shores of this
5 See press release of European Parliament (2018, November 13).
6 Ibid.
Antoni Abat Ninet; Acar Kutay
Europe’s lack of solidarity in its response to the humanitarian crisis. Jeopardizing the European Union’s...
Revista Catalana de Dret Públic, Issue 61, 2020 108
sea all the contradictions of humanity are concentrated. On one side the Parthenon; on the other, the boats
with immigrants eeing, at night, of ancestral famine and misery.”
As with the other founding values of Article 2 TEU, the principle of solidarity generates great popular
expectations that are encouraged by the “constitutional” narrative and constituent imagination. As Oklopcic
(2018) remarks, the practice of visual imagination is inseparable from its aective dimension. In choosing
to envision something instead of something else, all jurists manage their own anxieties, and some among
them hope to manage the anxieties of others (Oklopcic, 2018). The question is what vision the drafters of the
principle of solidarity in Article 2 TEU had and what the means are to enforce it.
The EU needs to decide which boat oers the right version of the visual imagination of Article 2 TEU:
the “humanitarian” ship, Proactiva Open Arms, or the “Identitarian” ship, C-star. It is not a simple act of
aesthetics but of ethics and imperium.
The rst ship is operated by Proactiva Opens Arms a non-governmental, non-prot organization from
Catalonia whose main mission is to rescue people from the sea who are trying to reach Europe eeing from
war, persecution, or poverty.7 The Proactiva Open Arms is specialized in surveillance and rescue missions
of boats carrying people who need help in the Aegean and Central Mediterranean seas, as well as raising
awareness of all the hidden injustices that are happening.8
The Proactiva Open Arms has rescued more than 5,000 people from the Mediterranean over the past three
years, and was seized on 19 March 2018 after docking in the Sicilian port of Pozzallo.9 The Italian authorities
ordered the detention of the Spanish ship for promoting “illegal immigration and criminal association”, after
saving more than 200 migrants.10
After the order of release issued by an Italian judge, the Spanish authorities blocked the migrant rescue ship
from leaving the Port of Barcelona, thereby preventing it from continuing its operations in the Mediterranean.11
Meanwhile, the alternative visual imagination is that oered by the C-star, a self-dened Identitarian ship
that “defends” Europe by confronting refugees and sending them “back to Africa”.12 Chartered by extremist
group “Generation Identity” and registered in Mongolia, the 40-metre (130ft) C-star was nanced through
a crowd-funding initiative organized by anti-immigration campaigners from France, Italy, and Germany.13
The group “Defend Europe” has vowed to “assist” the Libyan coast guard in pushing back the refugee boats
when they leave the country’s shores and says they want to “monitor” the actions of NGOs such as Save the
Children who are operating in the region.14 They claim these charities are facilitating “human tracking” to
Europe.15
The C-star has had several confrontations in its mission to prevent the passage of vessels loaded with migrants
trying to reach European coasts. During its “missions”, the boat pursued the Aquarius, the Open Arms, and
other boats of NGOs that carry out rescue work in the Mediterranean.16
In August 2017, the C-star ended its operations after a series of setbacks. The crew who chartered a 422-tonne
vessel for their latest eorts were not successful in achieving their goal. According to the organizers, “Defend
Europe was a political success and many NGOs sailed in front of the Libyan coasts, like cabs waiting for
customers”, adding that, “Today, there is only one”.17
7 See Open Arms website.
8 Ibid.
9 See The Guardian (2018, April 16).
10 See El País (2018, March 19).
11 See Euronews (2019, January 14).
12 See Independent (2017, July 24).
13 See France 24 (2017, August 11).
14 See note 12.
15 Ibid.
16 See El Plural (2017, August 12).
17 See Independent (2017, August 21).
Antoni Abat Ninet; Acar Kutay
Europe’s lack of solidarity in its response to the humanitarian crisis. Jeopardizing the European Union’s...
Revista Catalana de Dret Públic, Issue 61, 2020 109
The role of the imaginary meanings is to ground a response to these questions that neither “reality” nor
“rationality” can answer. These questions are metaphorical, and it is in the doing (dans le faire) of each
collectivity that the answer to these questions is found.18 So far, according to some interpretations of the
principle of solidarity and human dignity, the second ship, the “Identitarian” one, seems to better represent an
imaginary that allows the criminalizing and blocking of a boat carrying out a humanitarian task that should
be undertaken by the EU. The C-star seems to also represent the spirit that guided the EU’s immigration
agreement with neighbouring countries (including Libya and Sudan) to act as Europe’s border guards.
The externalization policies of the EU have far-reaching consequences. The most aected are the forcibly
displaced persons themselves, but these policies also undermine the economic and social development of
African nations, forcing them further into neo-colonial relations, strengthening repressive governments,
and ultimately also undermining EU interests.19 By cooperating with many authoritarian and human rights-
abusing regimes, the EU legitimates those governments and often strengthens their security forces through
training and the provision of equipment, thereby increasing their ability for internal repression.20
5 Conclusion
Every society has tried to respond to certain fundamental questions, such as who are we as a collectivity?
What are we to each other? What do we want, what do we desire? Societies need to answer these questions
in order to dene their identities (Castoriadis, 1975).
The EU as a collectivity ,with its own machinery to create imaginary meanings, is not an exception, and we
can only nd the answer to these essential questions when they are posed to the Union, viz. by looking at
its doing: if the Union wants to be dened as a collective founded on the principles and values expressed in
Article 2 TEU, greater emphasis needs to be placed on its doing and its social policies.
Can a normative understanding of the principle of solidarity in the EU cohabit with the images of the
Hungarian journalist Petra Lásló kicking a young girl and tripping a man with a child in his arms? This kind
of solidarity is understood from an empire state of mind,21 or an only among “whites” mentality; it is a kind
of solidarity that will explain the fact that the pictures of Aylan Kurdi, a three-year old Syrian refugee whose
body had washed up on the beach in Bodrum, Turkey, triggered highly emotional responses because the little
boy looked Western in the clothes he was wearing and his skin was a pale colour, unlike several other photos
of drowned children in which death is much more present, and which did not go viral.22
The lack of a rule of law, as explained by Kochenov, and of a real constitution or enough political autonomy
of the Union from the Member States cannot be sustained at any price. Breaching human rights, solidarity,
and human dignity erodes the EU and its collective imaginary.
Voltaire questioned in his Dictionnaire Philosophique (Voltaire, 1994) whether pious fraud should be
practised with the people. In a dispute between Bambabef the fakir and Ouang, a disciple of Confucius,
the rst maintained that the people need to be deceived, the second claimed that one should never deceive
anybody. Maybe the EU needs to follow the fakir’s advice and not show us things as they are, or maybe, as
the disciple of Confucius advocates, if a philosopher wishes to be useful to human society he must announce
a God (Voltaire, 1994), a Messiah (Abat, 2019). The risk is that both paths may lead us down the road of
fraud.
18 Ibid.
19 See Akkerman (2018).
20 Ibid.
21 Ibid.
22 See Edwards (2016).
Antoni Abat Ninet; Acar Kutay
Europe’s lack of solidarity in its response to the humanitarian crisis. Jeopardizing the European Union’s...
Revista Catalana de Dret Públic, Issue 61, 2020 110
Reference list
Abat i Ninet, Antoni. (2019). The messianic thought of the rule of law. Philosophia, 47(3), 733–755.
Akkerman Mark. (2018). Expanding the fortress: The policies, the proteers and the people shaped by EU’s
border externalisation programme. Amsterdam: Stop Wapenhandel, Transnational Institute.
Amar, Akhil. (1993). Anti-federalist, the federalist papers, and the big argument for Union. Harvard Journal
of Law & Public Policy, 16(1), 111-118.
Anderson, Benedict. (1991). Imagined Communities. New York: Verso.
Blokker, Paul. (2019). Populist constitutionalism. In Carlos de la Torre (Ed.), Routledge handbook of global
populism. Abingdon: Routledge.
Breuer, Stefan. (2011). Herrschaft in der Soziologie Max Webers. Harrassowitz Verlag: Wiesbaden.
Castoriadis, Cornelius (1975). L’institution imaginaire de la société. Paris: Le Seuil.
Churchill, Winston Leonard Spencer. (2009, May 5). Ein britischer Patriöt für Europa [reproducing the
conference held at the University of Zurich, 19 September 1946]. Die Zeit.
Edwards, Katie. (2016). Seeing Aylan Kurdi through Western eyes: How this image of a little boy speaks
challenge to an empire state of mind. Issues in Cultural Studies and the Bible, 6016.
Fossum, John Erik, & Menéndez, Agustín José. (2011). The Constitutional gift. A constitutional theory for a
democratic European Union. Lanham (USA): Rowman and Littleeld Publishers.
Giannakopoulos, Angelos. (2017). Introduction solidarity: sociological, legal and ethical aspects of a
fundamental EU-Principle. In Angelos Giannakopoulos (Ed.), Solidarity in the EU: challenges and
perspectives. Tel Aviv: Tel Aviv University.
Grimm, Dieter. (1995). Does Europe need a Constitution? European Law Journal, 1(3), 282–302.
Habermas, Jürgen. (2013). The crisis of the European Union: A response. Cambridge: Polity.
Jacobsohn, Gary. (2010). Constitutional identity. Cambridge (USA): Harvard University Press.
Janer Manila, Gabriel. (2009). La participación del Mediterráneo en la construcción del imaginario infantil
europeo. Madrid: Biblioteca Virtual Miguel de Cervantes.
Klamert, Marcus. (2014). Solidarität als Rechtsprinzip der Europäischen Union. In Michèle Knodt (Ed.),
Solidariät in der EU. Baden Baden: Nomos Verlag.
Kochenov, Dimitry. (2015). EU Law without the rule of law: is the veneration of autonomy worth it? Yearbook
of European Law, 34(1), 74–96.
Leiter, Brian, Handler, Carole E., & Handler, Milton. (1990). A Reconsideration of the relevance and
materiality of the preamble in constitutional interpretation. Cardozo Law Review, 12(117).
Loughlin, Martin. (2014). The concept of constituent power. European Journal of Political Theory, 2(13),
218–237.
Mac Amhlaigh, Cormac. (2011). The European Union’s constitutional mosaic: big ‘C’ or small ‘c’, is that
the question? In Neil Walker, Jo Shaw & Stephen Tierney (Eds.), Europe’s Constitutional Mosaic.
London: Bloomsbury.
Méndez-Pinedo, M. Elvira. (2016). Supremacy/Primacy [encyclopedia entry]. In Max Planck Encyclopedia
of Comparative Constitutional Law. Oxford Constitutional Law.
Antoni Abat Ninet; Acar Kutay
Europe’s lack of solidarity in its response to the humanitarian crisis. Jeopardizing the European Union’s...
Revista Catalana de Dret Públic, Issue 61, 2020 111
Müller, Jörg Paul, & Rosenfeld, Michel. (2000). Rule of law versus Rechtsstaat. In Peter Häberle & Jörg
Paul Müller (Eds.), Menschenrechte und Bürgerrechte in einer vielgestaltigen Welt Wissenschaftliche
Begegnung einiger Freunde von Thomas Fleiner zu Ehren seines 60. Geburtstages. Basel: Helbing &
Lichtenhahn.
Oklopcic, Zoran. (2015). Imagined ideologies: populist gures, liberalist projections, and the horizons of
constitutionalism. German Law Journal, 3(16), 171–203.
Oklopcic, Zoran. (2018). Beyond the people: social imaginary and constituent imagination. Oxford: Oxford
University Press.
Papakostas, Nikolaos, & Pasamitas Nikolaos. (2015). EU: beyond the crisis: A debate on sustainable
integrationism. Ibidem Verlag: Stuttgart.
Preuß, Ulrich. (1999). Auf der suche nach Europas Verfassung. Transit, 17, 154–174.
Sartre, Jean Paul. (1956). Situation V. Paris: Gallimard.
Scheppele, Kim Lane. (2003). Aspirational and aversive constitutionalism: the case for studying cross-
constitutional inuence through negative models. International Journal of Constitutional Law, 1(2),
296–324.
Scicluna, Nicole. (2014). Politicization without democratization: How the Eurozone crisis is transforming
EU law and politics. International Journal of Constitutional Law, 3(12), 545–571.
Taylor, Charles. (2004). Modern social imaginary. Durham (NC): Duke University Press.
Voltaire. (1994). Dictionnaire Philosophique. Paris: Folio Classique.
Von Bogdandy, Armin. (2005). The European constitution and European identity: Text and subtext of the
Treaty establishing a Constitution for Europe. International Journal of Constitutional Law, 3(2-3),
295–315.
