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Vulnerable Citizens in the EU, a border line between Policies and Law

By Luis Antonio Fernández Villazón

In the last few years the EU Institutions have adopted several instruments that highlight the necessity of giving special protection to “vulnerable groups” or to “the most vulnerable”. That is the case with the Europe 2020 Strategy; one of its flagship initiatives is the European Platform against Poverty. The Platform aim is “to ensure economic, social and territorial cohesion”, working at EU level “to design and implement programmes to promote social innovation for the most vulnerable”. The Platform establishes a dynamic frame of action with different policies and the “ambitious aim of reducing poverty and increasing inclusion”. It identifies several groups of the most vulnerable, like children, the elderly, ethnic minorities, people with disabilities, etc. These are the EU answers to the consequences of the economic crisis that have had the most impact on the most vulnerable.

The question is strongly related to EU citizenship. Combating social exclusion, promoting social justice and fundamental rights have long been core objectives of the European Union. In that context, solidarity must be a relevant component to the concept of citizenship. Vulnerable groups find more barriers and obstacles to exercise their citizenship rights and, in fact, they could become “lesser” citizens than other people or (paraphrasing our title) they could be considered “vulnerable citizens”. The European Commission does not ignore this and, in its last European Citizenship Report of 2013, establishes six key areas of action. One of them is “Protecting the more vulnerable in the EU”.

All these measures are based on the idea of policy coordination between EU Institutions and the member states in the frame of the “open coordination method” of European social policy. From a legal perspective, we can describe them as part of the so called “soft law”. At the level of more traditional “hard law” (that establishes rights and obligations that are enforceable before tribunals) the concept of vulnerable groups has a more discrete existence. We can find in the European Treaties, Regulations and Directives previsions that have effects to the situation of some groups of people who are vulnerable (like the rights of persons belonging to minorities mentioned in art. 2 TEU or the protection of the rights of the child in art. 3 TEU) but the general concept of vulnerable groups is not specifically formulated, with the only exception being Directive 2008/115/EC of 16 December 2008, on common standards and procedures in Member States for returning illegally staying third-country nationals (and only for the purposes of this Directive). In the case law of the Court of Justice of the European Union the situation is very similar. There are several judgments about affairs that directly affect people in a vulnerable situation but the term “vulnerable group” is not used in any of their considerations. It only appears in some Opinions of the Advocate General and only as an illustrative argument (see for example Opinion in affair C-303/06, S. Coleman)

This is the moment to put forward the two following questions: Could “vulnerable groups” go further than the policies context and become a whole law concept with legal consequences in EU Law? Would this be a desirable aim? For the first question the European Court of Human Rights (ECHR) has given the answer. Effectually the Strasburg Court, in the frame of the European Convention of Human Rights Protection System, is developing a concept of vulnerable groups with direct consequences in its evaluation of the existence of human rights violations. This has happened in cases concerning Roma, people with mental disabilities, people living with HIV, and asylum seekers. The concept used by ECHR is relational (because it views the vulnerability of certain groups as shaped by social, historical, and institutional forces), is particular (in the sense that these people are particularly or simply “more” vulnerable than others) and is harm-based (the existence of harm, being in the form of prejudice and stigmatization or of social disadvantage and material deprivation, is basic to determine vulnerability). That construction introduces an asymmetrical approach in the analysis of equality that centers attention on substantial equality and ”particular” disadvantages suffered by the members of an specific vulnerable group (for a deeper analysis of ECHR case law see Peroni, L, Timmer, A., “Vulnerable groups: The promise of an emerging concept on European Human Rights Convention Law”, I•CON (2013), Vol. 11 No. 4, 1056–1085)

Would it be desirable to adopt this ECHR case law by the European Union Court of Justice? Answer to this question is not so easy. On one hand, the ECHR concept of vulnerable groups is welcome, because it introduces slightly more objectivity in the resolution of affairs that always have a subjective component. On the other hand, the concept of vulnerable groups is not free of risks. Paternalism, stigmatization of people belonging to these groups and the possibility of competence between groups for the recognition of their vulnerability are some of them. In fact, we are faced with an interesting and suggestive concept that should be used carefully. We have to be prepared for it. It must be remembered that “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental, Freedoms, (…), shall constitute general principles of the Union’s law” (art. 6.3 TEU). In this context, the reception of the vulnerable groups’ concept by the Court of Justice is only a question of time.