The Importance of the CJEU for Shaping the Principle of Solidarity

None other than Prof. Koen Lenaerts, President of the Court of Justice of the European Union (CJEU) and a "convinced European", provided fundamental insights into the development of the principle of solidarity in the EU in a lecture that kicked off the newly established Max Planck Hub Fiscal and Social State and, under its roof, the lecture series "The Future of the Fiscal State and the Social State in the European Union". The Hub, an initiative of the Max Planck Institute for Social Law and Social Policy and the Max Planck Institute for Tax Law and Public Finance, is meant to bring together perspectives from social law as well as from tax law in the context of foundational legal research.

Among the 80 guests were Dr Hans-Josef Thesling, President of the Federal Fiscal Court, his predecessor Prof Dr Rudolf Mellinghoff, Prof Dr Rainer Schlegel, President of the Federal Social Court and Prof Dr Patrick Cramer, President of the Max Planck Society. They all attended the Inaugural Event in Munich to hear Lenaerts' speech, which focused on how the CJEU not only takes solidarity into account to nuance the impact of EU fundamental freedoms and competition rules and takes national sovereignty into account but also contributes to the development of an EU-wide concept of solidarity through its interpretation of EU social rules.

Right at the beginning, Lenaerts, who also holds a Chair for European Law at KU Leuven as well as eight honorary doctorates, highlighted the 12 values laid down in Art. 2 of the Treaty of the European Union (TEU) – the "twelve stars on the European flag" -, including the rule of law, democracy, justice, and solidarity, with the latter being, according to Lenaerts, the "essence of the Schuman Declaration" from 1950. However, this solidarity is not absolute; it must be shaped and nurtured. A strike, for example, might be legitimate but will need to be proportionate as well.

The social and economic aspects must go hand in hand, emphasized Lenaerts, even if those two areas are in conflict with each other more often than not. Health insurance, for example, is based on the principle of national solidarity, but, at the same time, it needs to be cost-efficient. As such, they are exposed to competition to some extent. However, treating health insurance funds as private companies would undermine the essence of social security, which the CJEU has affirmed in several rulings. In the context of fiscal subsidies, undistorted competition must prevail, but the state aid test has to start from the national tax system.

The CJEU president shared his conviction that the solidarity system cannot be sustained over time if it is not seen as positive. The consequences of a rather critical attitude towards the principle of solidarity were outlined by Ruth Mason, Professor at the renowned University of Virginia School of Law and Max Planck Law Fellow. She presented her research on interstate solidarity comparing the United States and the European Union that she will be pursuing in the framework of the Max Planck Hub Fiscal and Social State at the outset of the event – research, that is probably more topical and, regarding the challenges to solidarity that states are facing, more necessary than ever.