Fraternité

The EU treaties do insist on solidarity, be it solidarity between the peoples of Europe, between the member states or between generations.¹ According to Article 2 TEU, solidarity is a defining feature of European society. The EU Charter of Fundamental Rights goes even further by elevating solidarity to the status of a founding value of the Union alongside human dignity, freedom, and equality.² An entire chapter is even devoted to solidarity, with explicit rights attached to it, such as workers’ right to information, the right of collective bargaining, the right to fair and just working conditions, the right to social and housing assistance and the right to healthcare. Thus, it would appear that, in the EU context, solidarity is not only a buzzword that would mainly create obligations for member states towards one another; it is also the vector of concrete social rights that qualify the intrinsically liberal nature of the Union, grounded as it is on subjective rights primarily aimed at the emancipation of individuals, through the recognition of rights aimed at the protection of individuals as such or in their economic capacity.

However, multifaceted solidarity is not a performative utterance. It seems hardly enforceable by its very nature, a fortiori in a supranational setting characterised by a great deal of diversity. In consequence, grand statements on solidarity in a legal text, without denying their normative potential,³ are sufficient to ensure neither mutual assistance between member states nor the effective and large-scale protection of individuals, especially vulnerable ones. Currently, the wish of member states to intensify their solidarity seems to be lacking in certain respects.⁴ They do not appear inclined to share ‘burdens’, whether the burden of public debt that certain member states have accumulated over the years or the burden of migrants landing on the shores of Europe in pursuit of a better life. Regarding the latter issue, one could legitimately doubt the effectiveness of the requirements laid out in Article 67(2) TFEU, i.e. that the Union shall frame a common policy on asylum, immigration and external border control, which is based on solidarity between member states (interstate solidarity) and is fair towards third-country nationals (interpersonal solidarity). In an increasing number of member states, waves of migration have given rise to stronger resistance on the part of political leaders and public opinion.⁵ The other dimension of solidarity, in the form of Immanuel Kant’s moral and cosmopolitan duty to be hospitable vis-à-vis foreigners,⁶ is equally affected by that collective reluctance to give shelter to all ‘your tired, your poor, your huddled masses yearning to breathe free’ (E. Lazarus).

In such a political and legal context, a recent judgment of the French constitutional court (the Conseil constitutionnel)⁷ could not help but draw the attention of European constitutional scholarship due to its highly symbolic value and (relative) boldness. The grand French Republican motto ‘Liberté, égalité, fraternité’ is known to all, and in a judgment imbued with the ideals of justice and fairness, the Conseil has not only recognised, for the first time, the constitutional status of the third precept, i.e. fraternity; it has also fleshed out its meaning, making it akin to solidarity⁸ by narrowing down, in essence, the scope of the offence that consists of facilitating the illegal entry, circulation and residence of immigrants on the national territory – an offence better known by the somewhat disturbing label used by human rights activists, namely the ‘offence of solidarity’ (délit de solidarité).⁹ In so doing, and despite the limited practical reach of its judgment, the Conseil constitutionnel has fostered interpersonal solidarity in a context of strained interstate solidarity.

The offence of solidarity at the border between France and Italy

According to the provisions of the Code de l’entrée et du séjour des étrangers et du droit d’asile (the French Code of Entry and Residence of Foreigners, ‘CESEDA’), defining the offence of solidarity, any person who, directly or indirectly, facilitates the illegal entry, circulation or residence of a foreign national in France or on the territory of another contracting party of the Schengen Agreement shall be sentenced to five years’ imprisonment and a fine of €30,000.¹⁰ The Code does, however, provide two grounds for exemption. The first exempts the closest relatives of the foreign national from criminal prosecution¹¹ and the other, at the time of the judgment, concerned the facilitation of the illegal residence of a foreigner when the alleged act does not give rise to any direct or indirect compensation and only entails providing legal advice, food, accommodation or health care in order to ensure decent living conditions for foreigners, or any other assistance aimed at preserving their dignity or physical integrity (‘the exemption’).¹² It should be noted that illegal entry and illegal circulation – at issue in the present case – were not covered by that exemption.

In two separate sets of proceedings, a small farmer and an academic from the region of Nice were criminally prosecuted for assisting several illegal immigrants en route from Sudan and Eritrea via Italy. While it would appear, subject to further verification, that the former had facilitated the entry into French territory of circa 250 immigrants, thus on a rather large scale and in a systematic manner, the latter had only provided assistance by giving a ride to a handful of migrants in need of medical care. The accused were sentenced to suspended prison sentences of, respectively, four and two months for facilitating the entry and/or circulation of illegal immigrants in France.

The Conseil constitutionnel and the freedom to help others for humanitarian purposes

After the judgments on appeal, both persons submitted an appeal on a point of law to the Cour de cassation, the supreme civil and criminal court in France. On that occasion, their counsels raised a ‘QPC’ (question prioritaire de constitutionnalité)¹³ disputing the compatibility of the abovementioned legislation with the principle of fraternity. The Cour de cassation decided to refer that question to the Conseil constitutionnel.

In its decision issued on 6 July 2018, the Conseil held, first, that fraternity is a principle endowed with constitutional value. This follows from Article 2 of the Constitution, which notably contains the triadic Republican maxim, and from its preamble and Article 72-3, which both refer to ‘the common ideal of liberty, equality and fraternity’ between the French Republic and its overseas territories and populations.¹⁴ Second, according to the Conseil, the freedom to help others for humanitarian purposes, regardless of the lawfulness of their stay on the national territory, derives from the principle of fraternity.¹⁵ However, that freedom does not guarantee a general and absolute right of entry to and residence on the national territory; it is up to the legislature to strike a balance with the goal of combatting illegal immigration, which itself pertains to the constitutional objective aimed at safeguarding public order.¹⁶

Applying those principles to the legislation at issue, the Conseil constitutionnel gave a narrow reading in two respects to the offence of solidarity (thus broadening the scope of the exemption). First, it held that the legislature had failed to strike an appropriate balance between fraternity and public order by limiting the scope of the exemption to providing assistance for illegal residence without, however, including the facilitation of illegal circulation when the latter is merely ‘ancillary to the assistance to the residence of the foreign national and pursues humanitarian purposes’.¹⁷ It then went on to state that the legislature needed to exempt the latter from criminalisation in order to bring the legislation in line with the Constitution. Second, the Conseil interpreted the provisions at issue in a way that effectively broadened the exemption to encompass ‘any other act of assistance provided for humanitarian purposes’ beyond the acts explicitly enumerated in the legislation.

The Conseil postponed the abrogation of the contested provisions until 1 December 2018 since their immediate abolition might have had manifestly excessive consequences, i.e. essentially extending the exemption to acts that could facilitate illegal entry into French territory. However, in order for the persons prosecuted in the main proceedings to derive potential benefit from the judgment, the Conseil ruled that, as of the day of the publication of its decision, the criminal exemption at issue would also apply to humanitarian acts that aimed to facilitate the circulation of illegal immigrants when the latter is ancillary to their residence. As regards illegal entry, the Conseil constitutionnel remained adamant, though: ‘the assistance provided to the foreign national for his or her circulation does not necessarily give rise, as a consequence thereof, to an unlawful situation, in contrast with the assistance provided for his or her entry’.¹⁸

Subsequent to the judgment of the Conseil, the French legislature rephrased the exemption at issue almost entirely, not in the least to bring it into conformity with the interpretation of the Conseil, even though, strictly speaking, this was not required. The provision now exempts all acts facilitating illegal circulation or residence that do not give rise to any direct or indirect compensation and which consist of providing legal advice, linguistic or social assistance or any other assistance with an exclusively humanitarian objective.^{19, 20} The Cour de cassation subsequently annulled both second instance judgments in December 2018 on the basis of the decision of the Conseil constitutionnel, remitting the cases to a court of appeal for new judgment on the merits. In that respect, it can be expected that, in the light of the facts, the academic will eventually be cleared of the charges; this might, however, not be the case for the farmer since the facilitation of entry remains an offence regardless of any – humanitarian – purpose that may have motivated that action.

Looking beyond those two cases, the Conseil decision is bound to have rather limited reach in practice precisely because illegal entry, as a criminal offence, has not been affected by it. Thus, Kant’s duty of hospitality towards foreign nationals has been only partially vindicated. The decision did, however, cause a buzz, making the headlines of French newspapers. It was undoubtedly a milestone judgment in at least three respects. First, from a French perspective, the Conseil constitutionnel relied on a certain notion of a sacrosanct Republican principle that most foreign observers of French law would probably think had had its constitutional value acknowledged decades ago. Second, in connection with the separation of powers and judicial legitimacy, a – constitutional – court has dared derive concrete normative consequences in the field of immigration and asylum law from an admittedly very blurred and potentially subversive principle.²¹ Third, in an EU context, the Conseil has issued a decision that could potentially have an impact on how the principle of solidarity operates at the European level.

Fraternité at last, but which fraternité?

Why such late recognition of the constitutional and normative value of the principle of fraternity? At least five explanations can be adduced. First, it was perhaps thought unnecessary to sound the trumpet of fraternity, considering that the legislature or ordinary courts had already reclaimed a number of fraternity-related rights for the most vulnerable.²² Second, the Conseil may have been reluctant in the past to dive into the bottomless, yet promising well that is fraternity for fear of its subversive potential to upend matters in several areas, e.g. health care, social services or perhaps even the environment. Once opened, the Pandora’s box of fraternity might unleash a flood of unstoppable claims that could eventually lead to the recognition of even more new rights. Third, the Conseil constitutionnel may simply not have had the opportunity to sanctify that principle any earlier. In the present case, the breach of the principle of fraternity was actually not raised ex officio by the Conseil but was astutely put forward by the counsels of the parties, thereby incidentally showing the highly valuable contribution of the parties themselves to the development of constitutional law. In addition, it is not uncommon for courts to wait for the most suitable case in order to make a grand pronouncement. In this respect, the constellation of facts underpinning the decision of 6 July 2018 was certainly quite amenable to ‘discovering’ fraternity, allowing it to bare its teeth, especially in the current European context of tension on the issue of migrants.

The fifth explanation, which deserves a bit more exposition, has to do with the philosophical ambivalence with regard to the multifaceted principle of fraternity in France. The meaning attached to the narrative of fraternity has indeed always been somewhat ambiguous, oscillating between: (i) a distinctively French, strictly national understanding based on the dichotomy between ‘We’ and ‘the Others’; (ii) its Republican – thus universal by aspiration – dimension (in a nutshell, all friends of liberty and reason are unofficial French citizens); and (iii) its social connotation, in connection with the welfare state. During the French Revolution, fraternity was relied upon as a form of wishful thinking meant to get the entire French people marching under the same banner (the national understanding of fraternity) but also as a way to make room for all ‘freedom fighters’ (the Republican understanding). In passing, the latter aspect might account for the rather peculiar wording of the principle in the preamble of the Constitution of 1946 regarding constitutional asylum: ‘Any man persecuted in virtue of his actions in favour of liberty may claim the right of asylum on the territories of the Republic’.²³ During the industrial revolution, the much earlier Constitution of 1848 entrenched the welfare aspect of fraternity by requiring, in its preamble, mutual assistance, especially vis-à-vis the most vulnerable citizens (the social understanding of fraternity).

Thus, by virtue of the constitutional principle of fraternity, the Conseil constitutionnel has not only endorsed the social understanding of fraternity; it has embraced a new notion of fraternity, namely a humanistic, universal, and liberal ideal that directly recalls Kant’s duty of hospitality. That notion is distinct from the Republican understanding since, rather than focus on citizens in the abstract, it centres on concrete individuals irrespective of their commitment to liberty and reason. It is, above all, the opposite of a strictly national notion of fraternity that only benefits French citizens. The concept of fraternity that underpins the decision of 6 July 2018 would seem to be closer to the principle of human dignity than to an idea of national kinship.²⁴

The subversive function of fraternity

By acknowledging the constitutional value of fraternity and by allowing it to bare its normative teeth in immigration matters, the Conseil constitutionnel has undoubtedly been blunt, hence the concerns – or, alternatively, the enthusiasm – with regard to the enormous legal potential of that somewhat moralistic or political principle.²⁵ Admittedly, myriad rights can be derived from the principle of fraternity, ranging from extensive rights to social services and assistance for all, regardless of whether contributory payments have been made, to the right to a universal basic income or further rights for minorities.²⁶

Courts, however, are usually perceived as lacking the legitimacy to produce normative consequences, especially in the form of social rights, by relying solely on fuzzy, open-ended principles. That especially holds true for a principle like fraternity, inasmuch as it could be seen as the ‘mother’ of all social rights. For a number of reasons, it is indeed more difficult for courts to vindicate fraternity-related rights as opposed to strictly individual liberties, the main hurdle being the separation of powers: any court action in that direction tends to encroach upon the Parliament’s political discretion to define public policy. It is primarily up to the elected legislature to set the social standards it wants to impose on society as a means of qualifying liberalism. Another difficulty lies in the fact that fraternity-related rights usually come at an economic and social cost: social rights are hardly ever ‘gratis’; they usually imply benefit entitlements and, thus, public spending borne by the state or another public authority, and ultimately by the taxpayer. Even in the absence of significant economic costs, fraternity-related rights can themselves incur social or political costs, in particular when it comes to migrants, and especially in times plagued by terrorism (just think of the heated debate on jihadists returning from Iraq and Syria). Society could, under those circumstances, come to perceive migrants as a potential threat to public policy and security, a menace to social cohesion; in other words, national fraternity.

All these reasons make it rather difficult nowadays for courts to be daring and push for further recognition of rights derived from the principle of fraternity. That said, liberté and égalité are admittedly equally blurry and they, too, can entail costs. However, today those principles are routinely regarded as less destabilising. In any event, it can be assumed that the Conseil will wield the tool of fraternity with parsimony, as it did in its decision of 6 July 2018 by rather gently narrowing the scope of the offence of solidarity. A real breakthrough would have been achieved if it had exempted from prosecution the facilitation of illegal entry for humanitarian purposes. Yet the Conseil constitutionnel was cautious enough to decide against going down such a (subversive) road that, incidentally, might not have been all that well regarded at the EU level, in spite of its formal compatibility with EU law.

Fraternité and solidarity between member states

From a European perspective, the Conseil decision of 6 July 2018 is undoubtedly, to paraphrase Article 67(2) TFEU, fair vis-à-vis third country nationals, albeit through the persons aiding them. It would, therefore, seem to be quite amenable to the concept of interpersonal solidarity. However, it could perhaps also be seen as a slightly less positive development for the idea of interstate solidarity.

In formal terms, the French legislation at issue clearly complies with Directive 2002/90²⁷ defining the facilitation of unauthorised entry, transit and residence, which, somewhat ironically, was adopted upon a French initiative.²⁸ Article 1(2) of the Directive allows member states to refrain from imposing sanctions for the facilitation of both entry and transit when the aim of the individual providing assistance was humanitarian in nature.²⁹ Although the French legislature had not initially made full use of that possibility, it has just been prodded by the Conseil constitutionnel, on the basis of the French Constitution, to find a way to exercise that option with regard to circulation/transit. The Conseil could actually have gone much further without breaching Directive 2002/90 by exempting from prosecution the assistance of illegal entry for humanitarian purposes. The fact remains, however, that, in contrast to illegal immigrants themselves, who cannot, in principle, be prosecuted for staying illegally on the territory of a member state,³⁰ EU law allows member states to impose criminal penalties on persons who have committed the offence of facilitation of illegal immigration, as the Court has recalled in recent Italian and German cases.³¹ By the same token, the European Court of Human Rights has also upheld the French legislation at issue, albeit in very specific circumstances in which no penalty was imposed.³² Thus, the French legislation would appear to be compatible, generally speaking, with both EU and European Court of Human Rights law.

The Conseil constitutionnel decision might, however, raise two issues that have European implications. No matter how mild the quantitative effects might be, such a decision de facto ‘facilitates’ the stay and circulation of illegal immigrants on French territory since it could be seen as an enticement to human rights activists to keep pursuing their actions and to illegal immigrants to keep trying to enter the territory of France or move to another member state. First, although Italian authorities and perhaps citizens may think of the decision as nothing more than a positive externality, almost a gesture of solidarity or willingness to share the burden, the Conseil decision could also be perceived as undermining the terms of the Dublin III Regulation, and with it the mutual trust between member states, regarding the determination of which member state is responsible for examining a given asylum request.³³ In principle, it is indeed up to the member state of arrival (in this case, Italy) to evaluate a request unless there are substantial grounds to believe that there are systemic flaws in the asylum procedure and conditions for the reception of asylum applicants in that member state that could result in inhumane or degrading treatment.³⁴ Second, the Conseil’s decision also raises suspicions regarding the ability of illegal immigrants to exit French territory, most notably to the United Kingdom via Calais, a route now quite (in)famous precisely with regard to migrants. If illegal immigrants are provided assistance that helps them circulate freely on French territory, this could potentially make it easier for them to reach the United Kingdom or another member state, thus creating another negative externality that impinges upon interstate solidarity by further complicating the processing of asylum requests.

Against this background – and bearing in mind that concerns should not be overstated in light of the limited practical reach of the Conseil’s decision – it becomes obvious that national courts, including constitutional courts, cannot afford to overlook the European dimension of asylum and migration. They must remain aware of and tackle any externalities they create for other member states and their own courts. For better or worse, asylum and migration issues can no longer be addressed in splendid isolation, regardless of the EU dimension. Interpersonal solidarity must be made to go hand in hand with interstate solidarity. At the same time, though, the latter ideal should not be allowed to prevail at the expense of certain forms of fairness and justice.

FXM/JHR