The Criminalization of Solidarity in Today’s European Union

Of all the concepts that are often evoked to tackle issues of political inclusion and exclusion, solidarity is perhaps the most frequently discussed. Although there is no unanimous agreement on a definition of this concept, which is variously referred to as a moral or political ideal, a social practice, a human right, etc., many scholars seem to agree on the worthiness of solidarity and on the fact that it can be conducive enhanced forms of democratisation (Scholz 2008; Gould 2014; Prainsack & Buyx 2017; Meacham & Tava 2021). Although this view is largely shared by public opinion (Lahusen & Grasso 2018; Gerhards et al. 2019), a process of increasing criminalisation of solidarity has been taking hold in recent years. Scholars and activists often speak of “criminalization of solidarity” to describe the reaction of EU member states towards the expression and practice of solidarity by European citizens with migrants (Fekete 2018; Tazzioli and Walters 2019; Duarte 2020). The aim of this paper is to analyse the criminalization of solidarity in order to offer a deeper insight into this concept within the frame of European migration policies. To reach this goal, we combine a philosophical inquiry into solidarity and a legal analysis of the criminalization of solidarity – which will focus on the EU internal borders as sites of contestation. The rather narrow understanding of criminalization of solidarity that we propose here imply that we will concentrate on the behaviour of individual citizens rather than organizations. This choice is motivated by the fact that whilst organizations such as NGOs are in the “business” of humanitarian assistance and are therefore expected to abide by a certain standard of solidarity, manifestations of solidarity on the part of citizens are usually spontaneous, driven by a sense of civic duty. Therefore, one might argue that the criminalization of such spontaneous manifestations can be detrimental to the very principle of democracy insofar as it shrinks civil space and participation either directly (by prosecuting individuals who act in solidarity towards migrants) or indirectly (by using such judicial cases to discourage other people to act in the same way). The paper will begin by explaining our conceptual analysis, built around three fundamental questions: what is solidarity? What is the criminalization of solidarity? What is the type of solidarity that is being criminalized? In the second part, we will provide a more fine-grained definition of the criminalization of solidarity, highlighting how EU member states’ (mis)use of the Facilitation Directive (EU Facilitation Directive 2002) has, in practice, weaponized national law against a vision of a solidarity of a more humanistic nature. In the last part, we argue that although it is states that are adopting this anti-solidaristic logic, the opportunity to develop a more solidaristic approach towards migration might, in fact, come from national constitutions. We will analyse the pivotal role of solidarity within the frame of several EU member states’ constitutions and show how these documents might provide a useful conceptual groundwork to overcome potential acts of criminalisation.