The judicial politics of solidarity

This chapter looks at the changing logic and rhetoric of the Court in justifying cross-border solidaristic commitments in the EU. It tries to understand the way in which the Court legitimises its decisions in this area, not in terms of legal theory or hermeneutics, but focusing on the assumptions and assertions underpinning the reasoning of the Court. In recent years, the Court has started to make solidaristic demands as they serve to facilitate free movement. This functional language, however, masks the emergence of a new foundation for those demands of solidarity: that of fundamental rights. This change- justifying sharing commitments across borders on the basis of respect for fundamental rights rather than transnational equality that was at the core of previous case law- suggests a move away from communitarian sentiments and constitutes a problematic attempt at engaging with the controversy over welfare tourism.