41
UDC: 349:342:061.1EU
Luka Mišič
*
Equality of Opportunity in the EU: 
Rethinking the European Pillar of  
Social Rights in Light of Free Movement  
as a Supranational Principle of Justice
1. Introduction
More than two years have passed since the European Pillar of Social Rights (EPSR) 
was interinstitutionally proclaimed at the EU Social Summit for Fair Jobs and Growth, 
which took place in Gothenburg, Sweden, in November 2017. The soft-law instrument,
1
 
which according to Aranguiz lacks binding force and, therefore, refers more to a promise 
than a binding pledge to develop a more substantial social dimension of Europe,
2
 decla-
* 
PhD, Assistant Professor at the Faculty of Law, University of Ljubljana; luka.misic@pf.uni-lj.si.
1
 For an in-depth study of soft-law, its binding force, and its critique, see, for example, Klabbers, The 
Redundancy of Soft Law (1996), p. 167ff.; Klabbers, The Undesirability of Soft Law (1998), p. 381ff.; 
Senden, Soft Law, Self-Regulation and Co-Regulation in European Law: Where Do They Meet 
(2005), p. 1ff.; di Robilant, Genealogies of Soft Law (2006), p. 499ff.; Guzman, Meyer, International 
Soft Law (2010), p. 171ff; Stefan, European Union Soft Law: New Developments Concerning the 
Divide Between Legally Binding Force and Legal Effects (2012), p. 879ff.; Stefan, Helping Loose 
Ends Meet: The Judicial Acknowledgment of Soft Law as a Tool of Multi-Level Governance (2014), 
p. 359ff. See, fore and foremost, Senden, Soft Law in European Community Law (2004).
2
 Aranguiz, Social mainstreaming through the European pillar of social rights (2018), p. 351. What 
is, however, a more substantial social dimension of Europe? Does it entail, on the one hand, a 
shift from coordination to harmonisation, or, on the other hand, a reclamation of national welfare 
states’ autonomy at the expense of common fiscal or market goals of the EU? For different possible 
roles of the EU in the field of social protection see, for example, Claassen (et al.), Four Models of 
Protecting Citizenship and Social Rights in Europe (2019), pp. 163–166. The authors refer to The 
Passive Spectator, The Patron of Nations, The Guarantor of Social Rights and the Protector of Citizens 
Model. Under the fourth model, which is also according to Claassen et al. (ibid., p. 165) mostly 
2

42
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights red 20 principles falling within three categories: Equal Opportunities and Access to the 
Labour Market (principles 1 to 4), Fair Working Conditions (principles 5 to 10) and 
Social Protection and Inclusion (principles 11 to 20). Chapter I is comprised of the fol-
lowing Principles: (i) Education, T raining and Life-Long Learning, (ii) Gender Equality, 
(iii) Equal Opportunities, and (iv) Active Support to Employment. All principles of the 
document, which can be read as a charter,
3
 are presented in a language strongly resem-
bling the language of enforceable rights.
4
 According to Paragraph 14 of the Preamble 
to the EPSR, the latter expresses principles and rights essential for fair and well-functi-
oning labour markets and welfare systems in 21
st
 century Europe. However, according 
to Paragraph 12, the EPSR is to serve as a guide, therefore, not as a set of enforceable 
rights. As stated in the Commission Staff Working Document (SWD) accompanying the 
Communication on the EPSR’s establishment, principles, which in some areas add new 
elements to the existing body of EU law, will require a translation into dedicated action 
and/or separate pieces of legislation.
5
The overriding theme of this discussion stems from Principle 3 EPSR on Equal 
Opportunities, according to which everyone has the right to equal treatment and oppor-
tunities regarding employment, social protection, education, and access to goods and 
services available to the public, regardless of gender, racial or ethnic origin, religion or 
belief, disability, age or sexual orientation. In line with Principle 3, equal opportunities 
of under-represented groups shall be fostered. In the discussion, the notion of equal 
opportunities is merged with Principle 6 EPSR on Wages, according to which workers 
have the right to fair wages that provide for a decent standard of living. The concept of 
a decent standard of living through adequate wages is, however, significantly broadened 
with reference to persons’ access to primary goods and the notion of autonomous life-
-plan development in the EU, thus including in the debate economically inactive and/or 
“non-competing” EU citizens, who lack mobile or exportable marketable skills.
With an only brief mention of some of now (in)famous cases of the Court of Justice 
of the European Union (CJEU) in the field of social rights, freedom of movement, and 
residence rights, concerning the interpretation of Directive 2004/38
6
 and its relation 
hypothetical, the EU would assume the role traditionally fulfilled by the Member States them-
selves, introducing an EU health insurance, unemployment benefit or unconditional basic income 
scheme. For a short historic overview of the long debate on the EU unemployment insurance see, 
for example, Bologna, The European Unemployment Benefit Scheme: Legal Basis for Resocialising 
Europe (2017), pp. 12–14.
3
 Hendrickx, The European Social Pillar: A first evaluation (2018), p. 5.
4
 Hendrickx, The European pillar of social rights: Interesting times ahead (2017), p. 191.
5
 SWD (2017) 201 final, 26. 4. 2017, pp. 2–3.
6
 Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of 
the Union and their family members to move and reside freely within the territory of the Member 
States amending Regulation (EEC) No 1612768 and repealing Directives 64/221/EEC, 68/360/

43
Luka Mišič – Equality of Opportunity in the EU: Rethinking the European Pillar of 
Social Rights in Light of Free Movement as a Supranational Principle of Justice
to the equal treatment principle, enshrined in Article 4 of the Regulation 883/2004,
7
 
the meaning of “social assistance”, etc.,
8
 the contribution aims to demonstrate how the 
demands of equality of opportunity, if taken seriously and in line with some of the un-
derlying presumptions of liberal egalitarianism, may require for the associated burdens 
of national citizenship to be eliminated or at least limited at the level of primary and 
secondary EU law.
In the context of freedom of movement and residence rights, the principles of the 
EPSR mentioned above and the document itself might be regarded as a missed oppor-
tunity. The EPSR should have followed the idea of such elimination or limitation if 
it genuinely wanted to set the scene for the introduction of a European social model 
(ESM)
9
 that would bring the EU closer to a union of equal citizens. It, however, seems, 
as follows, that “fair and well-functioning labour markets and welfare systems” do not 
reflect that idea in its entirety.
The first part of the contribution, which finds itself at the intersection of law and 
political theory or political philosophy, discusses in-depth the notion of equality of 
opportunity embedded in the very heart of liberal (egalitarian) thought in relation to the 
institution of national citizenship and the theoretical process of its obtainment.
The second part discusses the current legal framework in the field of freedom of mo-
vement and residence rights and the effects it produces in relation to EU citizens’ equal 
opportunities concerning access to primary goods.
EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/356/EEC and 93/96/
EEC, OJ L 158, 30. 4. 2004.
7
 Regulation (EC) No 883/2004 of the European Parliament and of the Council on the coordination 
of social security systems, OJ L 166, 30. 4. 2004.
8
 For an extensive literature overview see footnote n. 72.
9
 Referring to several different authors, Martinsen and Vollaard ascribe the fact of national wel-
fare states not integrating into a full-fledged European system to the imbalance between negative 
and positive integration, with (referring to Obinger et al.) decision-making bypasses to a social 
Europe not allowing for large-scale harmonisation and redistribution among diverse national wel-
fare states. See Martinsen, Vollaard, Implementing Social Europe in Times of Crises: Re-established 
Boundaries of Welfare? (2014), pp. 679–680. According to Obinger (et al.), referring to the open 
method of coordination back in 2005 as (one of the) means of bypassing the political deadlock, 
“social policy evolution and harmonization is likely, at first, to be more the result of adjustment 
and incremental accommodation than of central guidance. This means that EU social policy devel-
opment, if it is to happen on any major scale, is a project for the very long term.” See Obinger (et 
al.), Bypasses to a social Europe? Lessons from federal experience, pp. 567–568. The EPSR, can, 
on the one hand, be considered an instrument of central guidance, since it was proclaimed by the 
presidents of the three Institutions, and, on the other hand, a bypass mechanism in itself, but only 
if gaining (indirect) binding force without translation into dedicated action or separate pieces of 
legislation. See footnote n. 5.

44
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights The third part demonstrates how the EPSR, even if introducing seemingly grandiose 
principles, in its essence prolongs the status quo concerning a substantial, empowering 
ESM and actual opportunities (or life prospects) of EU citizens from different Member 
States.
10
 It adheres to the EU’s overriding market rationale.
11
 If acted upon, it might, 
however, still pack a punch concerning equal opportunities (and social rights) in the EU.
In the discussion, facilitated intra-European mobility is proposed as a supranational 
principle of justice.
12
 It is aimed at enhancing equality of opportunity for all EU citizens, 
10
 Modern welfare states are no longer based on the notion of redistributive justice only. They are 
accompanied by calls for equal recognition. As observed by Newman and Tonkens, while the de-
velopment of welfare states had largely been founded on class-based claims for redistribution, in 
the second half of the 20
th
 century and beyond they became the focus of extensive—and sometimes 
competing—claims for recognition as women, lone parents, black and minority ethnic groups, 
asylum seekers, sans papiers, lesbians and gays, disabled people, mental health service users, old-
er people and others demanded political and social rights. See Newman, Tonkens, in: Newman, 
Tonkens (eds.): Participation, Responsibility and Choice. Summoning the Active Citizen 
in Western European Welfare States (2011), p. 17. According to Somek, “[o]nce social democ-
racy realises that Western style liberal democracy may be as good as it gets, its normative orientation 
shifts from growing better through redistribution to becoming more accessible through integration 
and inclusion.” See Somek, From Workers to Migrants, from Distributive Justice to Inclusion: 
Exploring the Changing Social Democratic Imagination (2012), pp. 721–722. Goodin et al. rec-
ognise six moral values, which welfare states traditionally serve or promote sometimes conflicting 
values: economic efficiency, poverty reduction, social equality, social integration and prevention of 
social exclusion, social stability, and autonomy. See Goodin (et al.), T he Real Worlds of Welfare 
Capitalism (1999), p. 22. The EPSR seems to promote, directly or indirectly and to a different 
extent, all of the values mentioned above.
11
 According to Schoukens, “[s]ocial security policy in the EU is mainly approached from the per-
spective of activation: the elderly should work longer, the disabled should be activated in their re-
maining capacity for work; women on maternity should be redirected as quickly as possible back to 
work. […] Financial sustainability, economic efficiency and efficacy, and labour activation are thus 
predominantly presented as referral grounds of justification.” See Schoukens, EU Social Security 
Law: The Hidden ‘Social’ Model (2016), pp. 41–42. See, also, Principles 13 and 14 EPSR.
12
 Miller, in his critical reply to Moellendorf, proposes equivalent sets of opportunities established in 
different places in the world instead of a borderless world “in which everyone speaks Esperanto”. See 
Miller, Against Global Egalitarianism (2005), p. 59. The mobility argument however seems much 
more plausible in the context of the EU, where its Member States are bound together not only by 
law, politics and, fore and foremost, the single market, but also by what can be considered, at least 
to some extent, a shared European identity. Addressing the question for the first time in Mišič, 
The National Welfare State, Four Categories of EU Citizens, and the Pursuit of Liberal Equality 
(2019), p. 5ff., I did not pay enough attention to the work of global egalitarians, who rely (also) 
on Rawls’s now globalised principles of justice. For an extensive state of the art, see Moellendorf, 
Equality of Opportunity Globalized (2006), p. 302 or, even more so, Kamminga, Cosmopolitan 
Europe? Cosmopolitan justice against EU-centerdness (2017), pp. 3–6. In the contribution, I do 
not include a Rawlsian, other liberal egalitarian or cosmopolitan assessment of the EU project, only 
borrowing the idea of the original position to discuss free movement (and residence rights). The 

45
Luka Mišič – Equality of Opportunity in the EU: Rethinking the European Pillar of 
Social Rights in Light of Free Movement as a Supranational Principle of Justice
regardless of their Member State affiliation,
13
 economic (in)activity, or exportability of 
marketable skills, while taking into consideration the great divide between socially and 
economically most and less or least developed Member States and their nationals’ life 
prospects. Following through on the proposal of facilitated mobility, however, seems to 
be a daunting task already at first glance. Namely, a supranational principle of justice 
might require an “all-in” approach of promoting unlimited freedom of movement due to 
its universality and unconditionality.
The seeming paradox of this contribution is, on the one hand, the thorough, possibly 
idealistic, aim of resisting the market rationale of the EU and, on the other hand, setting 
in the heart of the debate EU citizens’ unequal earnings and saving opportunities, i.e. 
opportunities concerning the amount of disposable income (income and wealth as pri-
mary goods) one can obtain (by performing gainful employment) or sustain (by accessing 
quality public services) in his or her lifetime. From this perspective, the liberal egalitarian 
undertaking employs money as an objective utility function, even if, according to Gaus, 
“most philosophers and political theorists are apt to see a conflict between liberalism and 
utilitarianism.”
14
 A conflict, most economists do not see.
15
 Nevertheless, some concep-
scope of the contribution does not allow me to address the EU as a community of (non-)coopera-
tive citizens or look into its basic (non-existing?) structure. For the distinction between domestic jus-
tice and the Law of Peoples, see Freeman, The Law of Peoples, Social Cooperation, Human Rights, 
and Distributive Justice (2006), p. 38ff. For a Rawlsian moral case for (or rather against) European 
integration see Kamminga, Rawls and the European Union (2014).
13
 Bauböck however notes that “[t]he strong source of birthright citizenship remains unavailable for 
federal-level solidarity as long as the Union does not transform itself into a federal state that rele-
gates its member states to the status of provinces. And federal level solidarity grounded in relations 
of co-residence between the citizens of the Union will remain limited since free movement rights 
alone cannot support the idea of political and social equality between all those who reside in the 
territory of the Union.” See Bauböck, in: Banting, Kymlicka (eds.): T he Strains of Commitment. 
The Political Sources of Solidarity in Diverse Societies (2017), pp. 99–100. See also foot-
note n. 60.
14
 Gaus, in: Gaus, Kukathas (eds.): Handbook of Political Theory (2004), p. 106. On Taylor’s 
account of utilitarian neutrality, see footnote n. 30, on Ackerman’s, footnote n. 41. It is, however, 
to be considered a paradox only as long as social justice considerations are considered as incom-
patible with market considerations. As argued by Kukovec, there exist no inherent market claims, 
solutions, or positions as an opposite to social or non-market claims, solutions, or positions. See 
Kukovec, in: Kochenov (et al.) (eds.): Europe’s Justice Deficit?, p. 328.
15
 Gaus, in: Gaus, Kukathas (eds.): Handbook of Political Theory (2004), p. 106. However, ac-
cording to Bowles, “[u]derstanding egalitarian politics today requires a reconsideration of Homo 
economicus, the unremittingly self-regarding actor of economic theory. However, it would be a 
mistake to replace the textbook self-regarding actor with an equally one-dimensional altruistic ac-
tor willing to make unconditional, personally costly contributions to the less well-off. Instead, we 
believe that strong reciprocity, which involves conditional co-operation and punishment, better 
explains the motivations behind support of the welfare state.” See Bowels, T he New Economics of 

46
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights tions of the good, which might not even include expensive tastes (which, for example, 
Rawls’s principles of justice possibly discriminate against), are harder to implement. They 
require primary goods of higher value,
16
 more money, or other resources to be sacrificed 
for the achievement of the good life.
17
 From this perspective, equality of resources takes 
priority over equality of welfare.
Possibly the greatest challenge of the contribution, or so it seems, is how to convin-
cingly argue for greater ex-ante equality of EU citizens without simultaneously having to 
argue for greater outcome-oriented ex-post equality through (need-based) redistribution. 
The EU can hardly be considered a bounded community of social citizens. Its reality 
reflects more a community of market citizens, bound by the establishment of the sin-
gle market and the four freedoms, conditioning EU citizens’ social claims. For a more 
significant transformation from a market to a social union,
18
 a salto mortale in the EU’s 
policy- and rule-making procedures accompanied by a much deeper sense of belonging 
and common identity (growing distant with every further enlargement) is needed—a 
fish not only too big but possibly not worth frying, even if markets can never fully realise 
the ideals of citizenship with this inability best cashed out in terms of inequality.
19
2. Equality of Opportunity and National Citizenship:  
The Real Eurojackpot
According to the European Commission (EC), there is a growing consensus across 
the EU, “that fostering equal opportunities, so that everyone can start well in life, over-
come difficulties and realise their own potential, is necessary to create resilient socie-
Inequality and Redistribution (2012), p. 137. On money or resources as an insufficient form 
of empowerment, see: Moon, in: Gaus, Kukathas (eds.): Handbook of Political Theory (2004), 
p. 218.
16
 See Raz, Morality of Freedom (1986), p. 119.
17
 According to Tomasi and his free market fairness, “the economic problem is a problem to be lived. 
For many people, independent economic activity is an essential, ongoing part of a well-lived life.” 
In addition, “[f]ree market fairness insists that an opportunity for a life of freedom and independ-
ence is owed, not just to the wealthy, but to citizens of every economic class: entry-level workers, 
single parents, members of the middle class, and trailer park residents, too.” See, Tomasi, Free 
Market Fairness (2013), p. 314, p. 446.
18
 A union in which EU citizens possessed equal social claims in any Member State, regardless of their 
economic (in)activity or wealth.
19
 See Claassen (et al.), Four Models of Protecting Citizenship and Social Rights in Europe (2019), 
p. 162. According to the authors (ibid.), “some notion of equality is—as embedded in the notion 
of equality in citizenship—necessary to understand the task which social protection must perform, 
both ex-ante and ex-post, against the inequality-generating tendencies of markets.”

47
Luka Mišič – Equality of Opportunity in the EU: Rethinking the European Pillar of 
Social Rights in Light of Free Movement as a Supranational Principle of Justice
ties.”
20
 What, then, lies behind the notion of equal opportunities, and how does the 
notion, as interpreted by the EC,
21
 relate to Principle 3 EPSR?
In the broadest sense, equality of opportunity can be understood as a political belief 
or principle, according to which all individuals, regardless of their personal circumstan-
ces such as race, gender, religion, social origin, should possess equal opportunities con-
cerning access to primary goods such as income and wealth, health, rights, and liberties, 
powers.
22
 Primary goods make up components needed for the individual to lead a rewar-
ding, self-fulfilling life. A life lived according to an autonomously developed rational 
life-plan.
23
 Namely, all individuals are committed to an ideal of the good life and certain 
things—whatever their particular content—are needed to pursue it.
24
From a formal, procedural or “fair play” perspective, every individual is entitled to 
compete for an office, job, university position, etc., under equal terms or conditions, with 
merit serving as the only supposed morally neutral criterion of distinction. Knowledge 
and skill, for example, can represent a primary good in itself or a means of facilitating 
individuals’ access to other primary goods, such as income or social recognition. From a 
material or substantive point of view, every individual who cannot compete on equal ter-
ms due to his or her objectively disadvantaged position is entitled to positive measures
25
 
20
 European Commission, Reflection Paper on the Social Dimension of Europe (2017), p. 22.
21
 According to the Commission (ibid.), the areas of action include, for example, youth and skills 
investment and lifelong learning, health promotion, the establishment of “dual earner” family 
structures, the fight against discrimination, facilitating mobility and migrants’ integration, civic 
participation promotion, etc. From this perspective, the notion seems much wider from the one 
included in the EPSR.
22
 Rawls distinguishes between social and natural primary goods. See Rawls, A Theory of Justice. 
Original Edition. (2005), p. 61.
23
 On rational life-plans, see footnote n. 40.
24
 See Kymlicka, Contemporary Political Philosophy. An Introduction (2002), p. 64. As ob-
served by Somek, “[o]ne’s command over a fair share of primary goods is not only a prerequisite 
for the satisfaction of individual wants [also needs, and wants, counting as expensive tastes], rather, 
it is a token of being a respected member of the society. Viewed in this light, the possession of a 
fair share of primary goods is an indispensable condition for the development of socially acquired 
self-esteem [in Rawlsian terms, self-respect] Thus understood, individual control over a fair num-
ber of primary goods should be considered an integral part of the good life.” See Somek, National 
Solidarity, Global Impartiality, and the Performance of Philosophical Theory (1998), p. 121.
25
 A fair meritocracy, according to Sandel, transcends the mere notion of formal equality of oppor-
tunity by removing obstacles for achievement by, for instance, providing equal educational oppor-
tunities for individuals who do not come from a privileged background. According to the author, 
Rawls, however, still believes that meritocratic conception corrects certain morally arbitrary advan-
tages, but still falls short of justice, since a meritocratic system permits the distribution of wealth 
and income according to the natural distribution of abilities and talents. See Sandel, Justice. 
What’s the Right Thing to Do? (2009), p. 154.

48
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights or compensation.
26
 When discussing the “intuitive equality of opportunity argument”, 
Kymlicka notes that
“[t]he prevailing justification for economic distribution in our society is based on 
the idea of ‘equality of opportunity’. Inequalities of income and prestige etc. are 
assumed to be justified if and only if there was fair competition in the awarding 
of the offices and positions that yield those benefits. It is acceptable to pay some-
one $100,000 when the national average is $20,000 if there was fair equality of 
opportunity—that is, if no one was disadvantaged by their race, or sex, or social 
background.”
27
Representing one of the cornerstones of liberal egalitarianism,
28
 the principle is not 
aimed at eliminating inequalities, which are a result of one’s rational decisions or informed 
behaviour (choice-sensitivity), but inequalities arising from real disadvantages, which the 
individual has had no control over (endowment-insensitivity). It is, in itself, not aimed at 
achieving ex-post but ex-ante equality of all members of the society.
29
 Just like the theory of 
utilitarianism, which, however, takes utility or welfare maximisation as a neutral
30
 criteri-
on of distributive justice, the theory of liberal egalitarianism also places no importance on 
26
 On (bad) luck and insurance see Dworkin, What is Equality? Part 2: Equality of Resources (1981), 
p. 292ff. According to Somek, “[i]n a hypothetical pre-societal situation [footnote omitted], one 
can take precautions against contingencies of life either by adopting a system of rules, which prom-
ises to erect a reliable bulwark against the emergence of unfavourable distributions, or by taking 
certain risks into account against which one may want to buy insurance.” See Somek, National 
Solidarity, Global Impartiality, and the Performance of Philosophical Theory (1998), p. 111. Could 
a person insure himself or herself against the burdens of obtained national citizenship? See below.
27
 Kymlicka, Contemporary Political Philosophy. An Introduction (2002), p. 57.
28
 For a brief overview and the link between liberalism (liberal egalitarianism) and social security, 
see Mišič, Theories of Political Philosophy as Guiding Principles in Social Security (2018), pp. 
280–283.
29
 In Rawls’ Theory of Justice and his following works, the fair equality of opportunity principle is com-
plemented by the difference principle. According to Temkin, “Egalitarians recognize that in the 
game of life, each of us, to some extent, must play the cards we are dealt. But they recognize that 
sometimes our cards are both dealt to us, and played for us. On this analogy, the concern for ex ante 
equality, and procedural fairness, reflects the concern that the deck should not be stacked against 
certain players […] That is, in the game of life, the cards don’t have to be stacked against particu-
lar groups or individuals for it to still turn out that some are born with extraordinary advantages, 
and hence extraordinary life prospects, relative to others. For an egalitarian, this is deeply unfair, 
even if, an important sense, it is not as unfair as such a situation would have been had it result-
ed from a stacked deck of bias or discrimination.” See Temkin, in: Christiano, Christman (eds.): 
Contemporary debates in political philosophy (2009), pp. 161–162.
30
 According to Taylor, discussing the philosophy of utility, “there must be no metaphysical winnow-
ing, whereby some kinds of sources of satisfaction are considered depraved or lower and hence 
not sources of real or true happiness. Whatever people find satisfying is satisfying.” See Taylor, 
Philosophical Arguments (1995), p. 128.

49
Luka Mišič – Equality of Opportunity in the EU: Rethinking the European Pillar of 
Social Rights in Light of Free Movement as a Supranational Principle of Justice
pre-established societal hierarchies.
31
 It treats—often at odds with life’s reality (claimed by 
the communitarians)—every person as a rational, self-governing individual, regardless of 
any communitarian affiliation but the affiliation to a political community. In a genuinely 
atomistic sense, the self constitutes the social through mutual agreement.
As mentioned above, according to Principle 3 EPSR, everyone has the right to equal 
treatment and opportunities regarding employment, social protection, education, and 
access to goods and services available to the public, regardless of gender, racial or ethnic 
origin, religion or belief, disability, age, or sexual orientation. Employment (directly) and 
education (indirectly) enable access to primary material goods, such as income and we-
alth, which in a market economy possibly represent essential primary goods, while social 
protection (security) schemes relieve the individual of private saving or investment for 
periods in which a contingency such as old age, sickness, or unemployment, occurs. It 
also encompasses means-tested social assistance schemes, explicitly listed in Principle 14 
EPSR. The same applies to other accessible, quality public services,
32
 which after taxation, 
as a rule, enhance the level of one’s disposable income in comparison to enjoying services 
that function by market rules only. In that sense, any social right, especially cash benefits 
and, for example, health benefits in kind (direct access to health as a primary good), can 
be interpreted as an economical category, increasing one’s disposable income after its initi-
al limitation due to contribution (or tax) deductions. In line with the principle of vertical 
(and horizontal) solidarity, a contribution- and tax-based redistribution benefits worst-off 
members of the community most. To gain or sustain political support, it, however, has 
to benefit average members of the community as well. The question of political support 
seems different when approached at the EU level, where (on average) worst- and best-off 
members of the community can be presented in terms of Member State affiliation.
Principle 3 EPSR, which stipulates an exhaustive list of personal circumstances, 
however, does not refer to nationality, social origin, or wealth. Like gender, racial, or 
ethnic origin, the individual does not choose his or her social origin or the level of wealth 
31
 Arneson describes equality of opportunity as a “political ideal that is opposed to caste hierarchy 
but not to hierarchy per se. The background assumption is that a society contains a hierarchy of 
more and less desirable, superior and inferior positions. Or there may be several such hierarchies.” 
However, “when equality of opportunity prevails, the assignment of individuals to places in the 
social hierarchy is determined by some form of competitive process, and all members of society are 
eligible to compete on equal terms.” See, Arneson, Equality of Opportunity (2015), in: Zalta (et 
al.) (eds.), Stanford Encyclopedia of Philosophy, p. 1.
32
 According to Miller, we should “[c]onsider the range of essential services provided directly or in-
directly by modern states, including health, education, communications, transportation, and so 
forth. In many cases, receipt of these services will be considered an adjunct of citizenship. It is, 
however, a matter of choice precisely which services will be provided at what level. This will depend 
on the society’s level of economic development and on cultural values that attach greater or lesser 
importance to particular services.” See Miller: Principles of Social Justice (2003), p. 237. See 
Principle 20 EPSR on Access to Essential Services.

50
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights his or her family members or predecessors possess, nor does the individual choose his or 
her national citizenship. As observed by Spaventa, the links of belonging are pre-assigned 
rather than chosen.
33
 The procedure of their obtainment somewhat mimics a lottery 
procedure or other procedure of pure procedural justice.
Put differently: placed behind a Rawlsian veil of ignorance, the rational individual, 
who is partaking in the original position’s procedure of drafting rules (principles of ju-
stice) that will govern basic social and economic institutions of the future society he or 
she will belong to, does not know his or her gender, level of health, talents or marketable 
skills, personal tastes, and other future natural endowments and constraints. Due to the 
rational fear of the “known unknown”, he and his fellow contractual parties are to select 
rules, which will safeguard (benefit most) the position of the least privileged member(s) 
of the society, since any one of them can become him or her.
34
 In a supranational setting, 
such as the EU, the blindfolded individual is, as a rule, also ignorant regarding his or 
her national citizenship, which can have a profound impact on his or her ability to lead 
a life according to an autonomously developed rational life-plan as, for example, gen-
der, race, religion, or sexual orientation can. Factors such as GDP per capita, levels of 
unemployment, gender equality rates, income equality rates, poverty rates, risk of social 
exclusion, percentage of low-wage earners, can vary significantly among the most and the 
least socially and economically developed Member States and have a substantial impact 
on actual life prospects of EU citizens.
35
From a liberal egalitarian perspective, inequalities arising from Member State affiliati-
on can be regarded as objective disadvantages, which the individual has or had no control 
over. The fictitious future EU citizen’s life depends on, as sung by Sting in his Shape of My 
Heart, the “sacred geometry of chance, the hidden law of probable outcome.”
2.1. The Losers
Imagine for a moment drawing the short straw
36
 of belonging, for example, to what 
were, according to Eurostat in 2017,
37
 the least developed Member States regarding the 
general but the sometimes misleading criterion of GDP per capita: Bulgaria, Romania, 
33
 Spaventa, in: Kochenov (ed.): EU Citizenship and Federalism. The Role of Rights (2017), p. 
209.
34
 The example is a textbook simplification of the theory. For further reading see, for example, Mišič, 
Theories of Political Philosophy as Guiding Principles in Social Security (2018), pp. 281–283, and 
numerous references included therein.
35
 A simultaneous ex-ante and ex-post application of the theory is not necessarily theoretically sound 
but at least to my belief clearly expresses the challenge ahead.
36
 Compare to Kukovec, Law and the Periphery (2015), pp. 408–409.
37
 All data obtained at https://ec.europa.eu/eurostat/statistics-explained/index.php/Statistical_themes 
(accessed between 15 July and 15 August 2019).

51
Luka Mišič – Equality of Opportunity in the EU: Rethinking the European Pillar of 
Social Rights in Light of Free Movement as a Supranational Principle of Justice
and Croatia.
38
 In June 2019, Bulgaria’s (4,5 per cent) and Romania’s (4 per cent) 
unemployment rates were, however, below the EU 28 average, while unemployment 
rates in Croatia (7,1 per cent) struck only 0,8 per cent above the average. Yet, five years 
ago, Croatian workers received much higher median gross hourly earnings than workers 
in Bulgaria and Romania, unfortunately still earning only around one-third of the EU 28 
average. None of the countries, which all fall among the Member States with the highest 
household overcrowding rates and lower than average life expectancy rates after the age 
of 65 (3–4 years below EU 28 average in 2017), however, belong, according to 2017 
data, to Member States with a high unadjusted gender pay gap, nor do they showcase, 
unlike several Member States of the West, a high level on unequal income redistribution. 
According to Eurostat, Bulgaria, Croatia, and Romania do showcase a below EU 28 
average proportion of the EU population (aged 25–64 years) with a high level of edu-
cational attainment, while being in line with employment rates of recent graduates aged 
between 20 and 34 in the EU. In 2017, one was also very likely to find a permanent 
employment contract in Bulgaria (96,5 per cent of employees) and Romania (99 per cent 
of employees). Nevertheless, according to 2017 Eurostat data, Romania finished last in 
regard to median equivalised disposable income, reaching only EUR 5,300 per person, 
followed by Bulgaria (EUR 7,500), with Croatia, where it was also more difficult to find 
permanent employment (88 per cent of employees) reaching an average of EUR 9,500. 
In 2018, net earnings per single worker were, in Croatia, comparable to net earnings in 
Latvia, Lithuania, Hungary, and Slovakia, all reaching roughly EUR 10,000 per annum. 
All of the three initially mentioned Member States were, in 2016, also below the overall 
life satisfaction rate average of the EU 28.
2.2. The Winners
Now imagine drawing the long straw of belonging to, for example, Denmark, the 
Netherlands or Sweden. Member States showcasing an above-average satisfaction rate 
(Denmark reaching the highest rate of just over 8 out of 10), below average unadjusted 
gender pay gap, low household overcrowding rates and higher life expectancy rates (only 
Denmark not reaching the EU 28 average in 2017), above-average median gross hourly 
earnings with an average yearly net salary in between EUR 32,000 and EUR 38,000 per 
single worker, high levels of GDP per capita and actual individual consumption, and, in 
the case of Denmark and especially Sweden, low levels of low-wage earners, according to 
Eurostat 2014 data, with Bulgaria, Romania, and Croatia being above the EU 28 avera-
ge. Unlike Bulgaria and Romania, where almost 40 and 36 per cent of the population, 
respectively, was at the risk of poverty or social exclusion in 2017, Croatia (26 per cent), 
38
 According to Eurostat, Romania closed up on several Member States with a higher GDP per capita 
in the category of actual individual consumption in 2017; however, it remained strongly below the 
EU 28 average.

52
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights still being above the EU 28 average of 22 per cent, outperformed Greece, Lithuania, 
Italy, Latvia, and Spain and fell behind Denmark, the Netherlands and Sweden for aro-
und 9 per cent. In the latter countries, one-fourth of the population or less were unable 
to face unexpected financial expenses in 2017, while more than one half of the popula-
tion was claimed not to be able to face such expanses not only in Croatia, Bulgaria, and 
Romania but also Latvia (60 per cent), Greece (53 per cent), Lithuania (50 per cent), 
and Cyprus (50 per cent).
If income and wealth are, as mentioned above, considered essential primary goods, 
odds of leading life according to an autonomously developed rational life-plan seem 
bleak for national citizens of any low-income Member State, regardless of low levels of 
unemployment or equal income redistribution rates in place. Even if low-income trans-
lates to lower prices of goods and services on the local market, citizens of Member States 
with unfavourable earnings opportunities ought to adapt their (economic) preferences 
more tightly than citizens of Member States with more favourable opportunities.
39
 The 
adaptation of such preferences can translate into the adaptation of rational life-plans 
or rational desires in a market economy.
40
 Put differently: a life-plan deemed rational in 
39
 According to Sunstein, adaptive preferences result from the fact that what people want is sometimes 
a product of what they can get. The problem occurs when particular preferences are not autono-
mous in a sense that they are produced by “the lack of opportunities which, if they were available, 
would result in a different preference structure and perhaps greater welfare. Although there ap-
pears to be no welfare loss from failure to satisfy adaptive preferences, there is an important loss 
all the same: people fail to obtain goods that would turn out to be extremely rewarding, precisely 
because they do not want those goods, and their lack of desire turns on a lack of opportunities. In 
such cases, autonomy concerns point in favour of rather than against a change in legal rules.” See 
Sunstein, Legal Interference with Private Preferences (1986), pp. 1146–1147. According to van 
Parijs and Vanderborght, “preferences are not set once and for all but are adaptive. In particular, 
people’s aspiration levels adjust upward as their original preferences get satisfied.” See Van Parijs, 
Vanderborght, Basic Income. A Radical Proposal for a Free Society and a Sane Economy 
(2017), pp. 130–131. From this perspective, levels of aspiration can vary significantly between 
citizens of different Member States.
40
 According to Rawls, “a person’s good is determined by what is for him the most rational long-term 
plan of life given reasonably favorable circumstances. A man is happy when he is more or less 
successfully in the way of carrying out his plan. To put it briefly, the good is in the satisfaction of 
rational desire. We are to suppose then, that each individual has a rational plan of life drawn up sub-
ject to the conditions that confront him. The plan is designed to permit the harmonious satisfaction 
of his interests. It schedules activities so that various desires can be fulfilled without interference. 
It is arrived at by rejecting other plans that are either less likely to succeed or do not provide for 
such an inclusive attainment of aims. Given the alternatives available, a rational plan is one which 
cannot be improved upon; there is no other plan which, taking everything into account, would 
be preferable.” See Rawls, A Theory of Justice. Original Edition. (2005), pp. 79–80. In the 
present discussion, the notion of autonomy is not understood solely as “the capacity to revise one’s 
life-plan by subjecting one’s received values and assumptions to critical reflection” but as a capacity 
to revise one’s life-plan by subjecting it to the limits of what is objectively possible, e.g. according 

53
Luka Mišič – Equality of Opportunity in the EU: Rethinking the European Pillar of 
Social Rights in Light of Free Movement as a Supranational Principle of Justice
Denmark ought to be revised and (negatively) adapted in the majority of other Member 
States. The level of adaptation is, however, possibly much higher in Bulgaria, Romania 
and Croatia, than it is in the Czech Republic, Estonia or, for example, Slovenia.
41
 
Moreover, economic insecurity, as a rule, produces even more substantial negative impa-
cts on one’s ability of autonomously developing and following a rational life-plan than 
only limited consumption of preferred goods and services does.
2.3. The Burdens of National Citizenship
EU citizens’ national citizenship, a status that in theoretical terms is acquired within 
a lottery proceeding, can produce several different outcomes concerning individuals’ real 
chances of achieving their notion of a good life while following an autonomously deve-
loped rational life-plan with as little adaptation as possible. The modern conception of 
citizenship is after all “chiefly related to the respect to each person’s individuality, necessa-
rily involving possible assistance in the accomplishment of individual life projects.”
42
 
Cosmopolitans, who pursue a Rawlsian original position model, require for the parties 
of a hypothetical contract to be ignorant of their citizenship and nationality—citizenship 
and nationality are, from an initial position’s perspective, morally analogous to natural 
talents, abilities, or social starting points.
43
 Place of birth is not a matter over which a 
person exercises control.
44
to one’s income, wealth, the public services he or she can rely on. See Peled, Brunner, in: Ben-Ami 
(et al.) (eds.): Ethnic Challenges to the Modern Nation State (2000), p. 72.
41
 It is not a question of one’s odds of someday driving a 911 down to Art Basel whilst watching time 
pass on a vintage Submariner. The demands of liberal equality do not approve of perfectionist 
ranking of interests, tastes, wants, or desires. They do however call for a distinction between tastes 
and expansive tastes. In that sense, the utilisation of money in this discussion relates to one’s odds 
of generating and sustaining enough income as to live in a healthy living environment, consume 
affordable quality goods, such as quality food and beverage, enjoy leisure, sports, and cultural ac-
tivities, travel, enjoy proportionate life-style preservation in old-age, etc. To avoid the perfectionist 
trap, individuals who do not relate to any of the above-mentioned or other similar generalised 
building blocks of the notion of the good life ought not to be discriminated against on grounds 
of their “subpar” wants, wishes, and desires. According to Ackerman, “one of the charms of social 
contract theory has been its conscientious effort to avoid ostentatious claims about the good.” See 
Ackerman, Social Justice in the Liberal State (1980), p. 67. Ackerman (ibid., p. 68), with his 
discursive approach to neutrality, however, disregards both social contract and social utility as cen-
trepieces of liberal thought.
42
 Kochenov, EU Citizenship without Duties (2014), p. 490.
43
 Moellendorf, Equality of Opportunity Globalized (2006), p. 304.
44
 Ibid. Thus, one’s nationality is also hidden under the veil of ignorance. See below. See also 
Zetterquist, A European Social Contract? (2007), pp. 335–336.

54
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights As I have argued elsewhere,
45
 after the imaginary lottery has been concluded, the EU 
citizen can in theoretical terms belong, on the one hand, to a socially and economically 
developed, highly egalitarian national community,
46
 which offers to its citizens (and per-
manent residents) a high level of equality of opportunity concerning access to primary 
goods such as education, health, etc. Individuals, regardless of their personal circumstan-
ces, compete on equal terms for positions providing high income and material means, 
enabling them to follow their rational life-plan and achieve their ideal of the good life 
with only little adaptation. Through developed social assistance schemes and accessible, 
quality public services such as education, health care, long-term care,
47
 public transport 
and infrastructure, or public housing, the achievement of the good life is also facilitated 
for less productive or even economically inactive members of the community, whose 
rational life-plans require less adaptation as well.
In Denmark and Sweden, for example, government expenditure on social protection 
represented over 20 per cent of the GDP in 2017 (France and Finland spent almost 25 
per cent), while it represented less than 15 per cent in Croatia, Bulgaria, and Romania.
48
 
In 2017, unlike Croatia, Bulgaria and Romania also remained firmly under the EU 28 
average on government expenditure on education. While in 2015, the biggest spenders 
such as Germany, Sweden, and France spent around 11 per cent of GDP on healthcare, 
Croatia spent only 7.4 per cent and Romania only 5 per cent. Interestingly, Bulgaria, 
Romania, and Croatia in 2016 spent a comparably significant amount of GDP on tran-
45
 Mišič, The National Welfare State, Four Categories of EU Citizens, and the Pursuit of Liberal 
Equality (2019), p. 17ff.
46
 Belonging, as a rule, to the European centres, not the periphery. On the centre-periphery dichot-
omy in EU law, see Kukovec, Law and the Periphery (2015), p. 406ff. For the categorisation of 
Member States, see pp. 408–409.
47
 According to Eurostat, Sweden, Denmark, and the Netherlands all spent over EUR 1,000 per 
inhabitant on long-term care, while Croatia and Romania spent EUR 21 and 25, respectively. 
Bulgaria spent EUR 0.6 per inhabitant. More generous welfare states are at the same time more vul-
nerable to legal challenges posed by European mobility, competition, and non-discrimination rules 
(than their liberal counterparts; see footnote n. 48). See, Scharpf, The Asymmetry of European 
Integration, or Why the EU Cannot be a “Social Market Economy” (2009), p. 237.
48
 Regarding (public) social protection expenditure (most notably on healthcare and pensions), the av-
erage age of the population and the public-private relationships have to be taken into consideration. 
Some of the economically highly developed Member States such as the Netherlands and (once) the 
UK barely reached the EU 28 average in 2017. The latter can be ascribed to the differences between 
liberal market economies and coordinated market economies. See Hall and Soskice’s division (juxta-
posed to Esping-Andersen’s division) in Scharpf, The Asymmetry of European Integration, or Why 
the EU Cannot be a “Social Market Economy” (2009), p. 233. For welfare state retrenchment as a 
response to expanding social rights of mobile EU citizens see Kramer (et al.), Responding to free 
movement: quarantining mobile union citizens in European welfare states (2018), pp. 1504–1505 
and ibid. cited literature.

55
Luka Mišič – Equality of Opportunity in the EU: Rethinking the European Pillar of 
Social Rights in Light of Free Movement as a Supranational Principle of Justice
sport, while Bulgaria, in 2017, presented the biggest spender in the field of the hou-
sing community. However, increased public spending might reflect the fact that those 
Member States have a lot of catching up to do, while benefiting most from the redistri-
bution of common European funds.
49
On the other hand, an EU citizen can become a member of a socially and economical-
ly undeveloped and inegalitarian national community, which offers to its members only 
a low level of no (equal) opportunities or means of generating a high income, with high 
levels of unemployment, poverty and social exclusion permeating the society. Besides, 
individuals are unable to rely on accessible, quality public services when developing their 
rational life-plans. Their rational desires require substantive adaptation, especially if belo-
nging to the group of the economically inactive or low-productive members of the society.
From this perspective, further clarification is required. Citizens of different Member 
States may enjoy equal opportunities regarding access to primary goods as such. They, 
however, do not enjoy equal opportunities regarding an autonomous development of a 
rational life-plan, since they cannot access primary goods of a particular value or quality, 
which might be accessible for specific types of EU citizens in other Member States.
2.4. Overcoming the Fear of the “Known Unknown” and Common Legal Status
What links the winners and losers of such lottery is their common legal status, the 
fundamental status of an EU citizen,
50
 which was, according to Blumann, aimed to 
compensate for the inexistence of a generic European people, a European demos.
51
 The 
special link or bond they share makes the discussion on the demands of justice, such 
49
 According to Kukovec, the perception that the EU’s new (Central European) Member States have 
been receiving large sums of money from the EU budget is a myth. See Kukovec, Law and the 
Periphery (2015), pp. 410–411.
50
 See judgment of the Court in C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-
Louvain-la-Neuve (Grzelczyk) of 20 September 2001, ECLI:EU:C:2001:458, para. 31.
51
 Blumann, in: Hohnerlein (et al.) (eds.): Employment Biographies and Social Protection in 
Europe (2018), pp. 30–31. Schmidt et al., however, note that it represented more of a symbolic 
addition, when introduced with the T reaty of Maastricht, since Member States clearly did not want 
to renounce their sovereign powers in the field of citizenship. See Schmidt (et al.), Free movement 
and equal treatment in an equal union (2018), p. 1394. See also footnote n. 60 and Lanceiro, 
Dano and Alimanovic: the recent evolution of CJEU case-law on EU citizenship and cross-border 
access to social benefits (2017), p. 67ff., where the author refers to the famous CJEU cases C-85/96 
María Martínez Sala v Freistaat Bayern (Martinez Sala) of 12 May 1998, ECLI:EU:C:1998:217, 
C-456/02 Michel Trojani v Centre public d’aide sociale de Bruxelles (CPAS) (Trojani) of 7 September 
2004, ECLI:EU:C:2004:488, and C-209/03 The Queen, on the application of Dany Bidar v 
London Borough of Ealing and Secretary of State for Education and Skills (Bidar) of 15 March 2005, 
ECLI:EU:C:2005:169. For an in-depth factual approach, see Davies, Has the Court changed, or 
have the cases? The deservingness of litigants as an element in Court of Justice citizenship adjudica-
tion (2018), pp. 1446ff.

56
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights as the demand for equal opportunities, different from the demands of global justice. 
Counterintuitively, a communitarian or particularistic rationale makes the European li-
beral project seem more feasible.
If placed under the veil of ignorance—with the letter lifted just enough, so that 
the creators know they are deliberating on principles of justice (rules) applicable to a 
supranational community composed of individual socially and economically strongly 
diverse national communities, but do not know which one they will end up in or belong 
to—they might agree on unlimited mobility of persons as a supranational principle of 
justice. More precisely: if they agreed on fair equality of opportunity principle, unlimited 
mobility of persons might become one of its results.
52
 The principle, however, has to be 
interpreted in a material, not merely formal sense (open, merit-based access to jobs and 
positions),
53
 with a link to the difference principle in place.
54
 Merit-based distribution of 
jobs and positions on the single market, as a rule, favours citizens of socially and econo-
mically developed Member States, where they possibly enjoyed greater opportunities for 
the development of talents, marketable skills, obtainment of knowledge, expertise or, as 
put by Bowles, mobile intellectual assets,
55
 even if they do not want, nor need to export 
them. It is also, as mentioned above, morally arbitrary regarding individuals, who cannot 
compete or cannot compete on equal terms due to objective disadvantages. However, 
even for the non-competing EU national citizens, the odds of leading life according to 
an autonomously developed rational life-plan with as little adaptation as possible seem 
much better in socially and economically most developed Member States. As mentioned 
52
 In Mišič, The National Welfare State, Four Categories of EU Citizens, and the Pursuit of Liberal 
Equality (2019), p. 20, I have skipped the first part of a twofold construct, claiming for an “open 
approach to” intra-European mobility to be considered a principle of justice in itself, not necessarily 
a result of the application of the fair equality of opportunity principle. For correcting that mistake, 
I am most grateful to Miriam Quené of University of Antwerp. According to Somek, “the liberty 
to enhance their [members’ of poor countries] life-time opportunities through immigration can be 
regarded as one of a number of devices for mitigating the impact of global inequalities.” See Somek, 
National Solidarity, Global Impartiality, and the Performance of Philosophical Theory (1998), p. 118.
53
 Viehoff recognises three justificatory requirements for the (social) market economy: institutional 
justification, procedural fairness, and substantive opportunity. See Viehoff, Equality of Opportunity 
in a European Social Market Economy (2019), p. 33. In a transnational European setting, all eco-
nomic positions of authority and advantage, according to Viehoff (ibid., p. 35), should be open 
to all EU citizens, and, EU citizens possessing the same level of talent and motivation should have 
equal prospects of ending up in these positions.
54
 Also, see Freeman, The Law of Peoples, Social Cooperation, Human Rights, and Distributive 
Justice (2006), p. 46.
55
 Also, see ibid., pp. 36–37.

57
Luka Mišič – Equality of Opportunity in the EU: Rethinking the European Pillar of 
Social Rights in Light of Free Movement as a Supranational Principle of Justice
above, they can rely on accessible, quality public services or established social and econo-
mic institutions, even if exercising no economic activity whatsoever.
56
Suppose the abundance of wealth, also radiating into the social and economic instituti-
ons of a particular community, is as a rule concentrated in Member States of the European 
centres, the (on average) worst-off EU citizens, belonging to Member States of the European 
periphery,
57
 may possess a moral claim to benefit from the difference in their social-eco-
nomic position and the social-economic position of the (again, on average) best-off EU 
citizens, belonging to Member States of the European centres. The latter can be achieved 
through common-budget-to-person redistribution,
58
 common-budget-to-Member-State 
redistribution or public investment, or, as indicated above, (unlimited) migration.
If following the move from greater distributive justice to greater inclusion,
59
 one 
could argue, in the first place, in favour of facilitated, not necessarily unlimited, mobi-
lity of persons as a mechanism of neutralising adverse effects of national citizenship of 
economically active as well as inactive and non-competing EU citizens. Unlimited mo-
bility of economically inactive and non-competing EU citizens could namely produce 
same results as common-budget-to-person (need-based) redistribution, which, unlike 
the demands of liberal egalitarianism, aims at establishing ex-post equality (equality of 
outcome instead of equality of opportunity). The application of patterned principles of 
justice, when need, not merit serves as a criterion of redistribution, require a strong sense 
of shared identity between the members of the community in place. The latter can be 
substituted by a sense of mutual benefit grounded in reciprocal, risk-based redistributi-
on. Both, however, require a bounded community to exist. If individuals, positioned un-
56
 A developed, diverse real estate and real estate rental market, favourable credit terms and condi-
tions, etc.
57
 See footnote n. 46.
58
 According to Arneson, “[t]he core socialist objection to a capitalist market is that people who have 
fewer resources than others through no fault of their own do not have a fair chance to satisfy their 
preferences. The solution to this problem is not to privilege anybody’s preferences but to tinker with 
the distribution of resources that individuals bring to market trading.” See Arneson, Meaningful 
Work and Market Socialism (1987), p. 537. Such would be, for example, a common European 
social assistance fund. According to Tomasi, conversely, an “emphasis on individual opportuni-
ty over group solidarity is not a rejection of social justice.” See Tomasi, Free Market Fairness 
(2013), pp. 446–447. The distinction between common-budget-to-person or common-budget-to-
Member-States approach to redistribution can be observed in the case of the EU unemployment 
benefit scheme mentioned above (see footnote n. 2) and, on the one hand, its genuine or, on the 
other hand, its equivalent model. A genuine model entails direct transactions to persons, while the 
equivalent model represents insurance between the Member States. See Beblavý (et al.), A European 
Unemployment benefit Scheme (2017), p. 17. Direct insurance-based money transactions (social 
cash benefits), however, in the first place, answer to the distributive criteria of merit, not need.
59
 See Somek, From Workers to Migrants, from Distributive Justice to Inclusion: Exploring the 
Changing Social Democratic Imagination (2012), p. 721.

58
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights der the veil of ignorance, have no awareness of belonging to a bounded community, even 
if only a community of shared risks, the benefits of establishing not only a merit but also 
a need based mechanism of redistribution, might not outweigh the risk of establishing 
such a mechanism in a community open to all. From this perspective, the EU rests on an 
outdated, but not necessarily an illegitimate social contract.
The case seems, at first glance, different with common-budget-to-Member-States or 
simply intra-Member-State redistribution aimed at reducing regional social and econo-
mic gaps, when the latter enhances the affluence of nationally provided public services. 
However, even in the case of intra-Member-State redistribution, funds collected from 
taxation in one Member State benefit taxpayers in another Member State. The difference 
is the latter can be used for furthering equal opportunities and not for directly and ex-
-post increasing the level of individuals’ resources, with the distributive criterion of need 
hidden behind a façade of nations or governments.
Nevertheless, ex-ante awareness of the EU’s possible future expansion with less afflu-
ent Member States should refute any ex-post reservations concerning the size, diversity, 
social-economic gaps, etc., of the established community regarding different types of 
redistribution. From this perspective, arguing in favour of unlimited mobility seems less 
farfetched.
3. Freedom of Movement and Residence Rights: Fair Chances for 
Competing Market Citizens
According to Shimmel, who fell into the trap Scharpf describes as an “idealistic com-
mitment to promoting European integration against what they [pro-European discour-
ses], consider protectionist impediments and nationalistic opposition,”
60
 free movement
“gives EU nationals a reason to feel loyal to the Union and invested in the success 
of greater integration, functioning as a tool to develop and encourage the percep-
tion of collective European consciousness. In this sense, the free movement of 
persons is perhaps the most important of the four freedoms, symbolically speaking, 
to the development of the conception of a unified Europe.”
61
It is a key ingredient of the establishment of a common European identity.
62
 Referring 
to Martin, de Boer recognises three fundamental rights closely connected to the formal 
60
 Scharpf, The Asymmetry of European Integration, or Why the EU Cannot be a “Social Market 
Economy” (2009), p. 229. We even might have fallen into the trap together.
61
 Shimmel, Welcome to Europe, but Please Stay Out: Freedom of Movement and the May 2004 
Expansion of the European Union (2006), p. 773. Compare to Bauböck in footnote n. 13 and 
Blumann in footnotne n. 50.
62
 Shimmel, Welcome to Europe, but Please Stay Out: Freedom of Movement and the May 2004 
Expansion of the European Union (2006), p. 773.

59
Luka Mišič – Equality of Opportunity in the EU: Rethinking the European Pillar of 
Social Rights in Light of Free Movement as a Supranational Principle of Justice
notion of equality of opportunity, i.e. free choice of occupation, freedom of movement, 
and freedom of information on jobs and prices.
63
 Further relying on Martin and his 
Rawls and Rights, de Boer argues that 
“[c]itizens must have a legal right to freely choose their occupation in order to have 
access to different social positions. Moreover, they need the freedom of movement 
necessary to take up such a position, perform it or engage in training and educati-
on required for it.”
64
As observed by Menédez, the attempt to advance a political conception of European 
integration through a fundamental economic freedom is, however, paradoxical.
65
 T wo out 
of three main issues rendered by Martínez Sala and Baumbast, include an aggravated bias 
in favour of individualistic against collective and commutative (reciprocal) against solidari-
stic redistribution, and problematic distributive outcomes which strengthen the structural 
power of mobile and better-off workers against immobile and generally worst-off workers.
66
3.1. The Legal Framework and Its Effects
According to Article 6(1) of the Citizens’ Rights Directive,
67
 EU citizens have the 
right to reside in the territory of another Member State for a period of up to three months 
without any special conditions. According to Article 24(2), the host Member State is 
however not obliged to confer social assistance entitlements during the first three months 
of residence or grant maintenance aid for studies, including vocational training consisting 
in student grants or loans to persons other than workers, self-employed persons or per-
sons retaining such status and members of their families.
68
 Under Article 7(1), they have 
the right to reside in the territory of another Member State for a period longer than three 
months if they are workers or self-employed in the host Member State, or have sufficient 
63
 De Boer, Fundamental Rights and the EU Internal Market: Just how Fundamental are the EU 
T reaty Freedoms – A Normative Enquire Based on Rawls’ Political Philosophy (2013), p. 156.
64
 Ibid.
65
 Menédez, European Citizenship after Martínez Sala and Baumbast (2009), p. 35.
66
 Ibid., pp. 35–36. See also ibid., pp. 38ff.
67
 Which, according to Ferrara back in 2014 contributed to the “enormous progress towards the 
construction of a community of equals in terms of access to social rights, in their fullest sense. 
With regard to EU citizens, the territorial boundaries of national welfare states have been almost 
entirely removed and membership boundaries greatly weekend.” See Ferrara, Social Europe and its 
Components in the Midst of the Crisis (2014), p. 830. Then, however, Brey, Dano, Alimanovic and 
Garcia-Nieto (see footnote n. 72) came along, shifting the interpretation of freedom of movement 
and residence rights (concerning access to social benefits) back in favour of economic categories.
68
 According to Article 7(2) of the Regulation (EU) No. 492/2011 of the European Parliament and 
of the Council on freedom of movement for workers within the Union (OJ L 141, 27. 4. 2011), a 
worker, who is an EU citizen, enjoys same social and tax advantages as national workers in the host 
Member State, e.g. social assistance benefits.

60
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights resources for themselves (the playboy lives on!)
69
 and their family members not to become 
a burden of the social assistance system of the host Member State in which they have to 
possess comprehensive sickness insurance coverage. Mantu and Minderhoud argue that 
the Directive, which only allows economically inactive persons to use their freedom of 
movement rights if they possess sufficient resources, includes several signals that when 
they apply for a social assistance benefit, they should not fear automatic expulsion due 
to lack of sufficient resources. The Directive, however, fails to offer a clear definition of 
the “unreasonable burden” condition, with Recital 16 of the Directive setting out three 
sets of criteria.
70
 Article 7(3) regulates cases in which the person retains the status of 
a worker after seizing to be economically active due to illness or accident, involuntary 
unemployment (job-seeker registration required), and vocational training.
71
Under Article 16(1), the EU citizens, who have resided legally for a continuous period 
of five years in the host Member State, e.g. by possessing sufficient resources throughout 
that period or by exercising gainful employment, can obtain the right of permanent re-
sidence. They can also apply for social assistance benefits without risking expulsion even 
if not possessing the status of a worker, a self-employed person,
72
 or job-seeker.
73
 Prior 
69
 Reference to the Directive 90/364/EEC of 28 June 1990 on the right of residence as the “Playboy 
Directive” is countless. 
70
 Mantu, Minderhoud, Exploring the limits of social solidarity: welfare tourism and EU citizenship 
(2016), p. 13. See also Schmidt (et al.), Free movement and equal treatment in an equal union 
(2018), pp. 1394–1395. According to Shuibhne, recent CJEU case-law, even if provoking a critical 
reaction from a normative perspective, however, focused more straightforwardly on respecting the 
conditions and limits expressed in secondary legislation, especially by emphasising the requirements 
for lawful residence in the host Member State to enjoy equal treatment. See Shuibhne, The Social 
Market Economy and Restriction of Free Movement Rights: plus c’est la même chose? (2019), p. 115.
71
 See a recent CJEU case C-483/17 Neculai T arola v Minister for Social Protection (T arola) of 11 April 
2019, ECLI:EU:C:2019:309, in which the worker only worked for two weeks while retaining the 
status of a worker for a further period of no less than six months.
72
 Compare Articles 7(1)(b), 7(3)(b), 7(3)(c), 14(3), 14(4)(a), 14(4)(b), 24(1), 24(2) and Article 4 of 
the Regulation 883/2004, CJEU cases C-140/12 Pensionsversicherungsanstalt v Peter Brey (Brey) of 
19 September 2013, ECLI:EU:C:2013:565; C-333/13 Elisabeta Dano and Florin Dano v Jobcenter 
Leipzig (Dano) of 11 November 2014, ECLI:EU:C:2014:2358; C-67/14 Jobcenter Berlin Neukölln 
v Nazifa Alimanovic and Others (Alimanovic) of 15 September 2015, ECLI:EU:C:2015:597; 
C-299/14 Vestische Arbeit Jobcenter Kreis Recklinghausen v Jovanna García-Nieto and Others (García-
Nieto) of 25 February 2016, ECLI:EU:C:2016:114; and extensive literature on the topic. For exam-
ple: Verschueren, Free Movement of Benefit T oursim: The Unreasonable Burden of Brey (2014), pp. 
147–179; Verschueren, Free Movement of EU Citizens. Including for the Poor? (2015), pp. 10–34; 
Thym, The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for Economically 
Inactive Union Citizens (2015), pp. 17–50 or Verschueren, Recent case before the Court of Justice 
of the European Union (2017), pp. 71–82. See also Article 7 of the Regulation 492/2011.
73
 See Paragraph 16 to the Preamble of the Directive and Article 14(4)(b). According to Article 5 
of the Regulation 492/2011, a national of a Member State seeking employment in the territory 

61
Luka Mišič – Equality of Opportunity in the EU: Rethinking the European Pillar of 
Social Rights in Light of Free Movement as a Supranational Principle of Justice
to the fulfilled period, “citizenship law extends equal access to social benefits only to ci-
tizens who are market participants through being employed, self-employed or otherwise 
self-sufficient.”
74
The Directive, which took priority over the T reatises and the general principles of EU 
law concerning EU citizenship and equal treatment after Dano and Alimanovic clearly di-
stinguishes between workers (and other economically active, potentially active or poten-
tially reactivated persons) and economically inactive persons.
75
 After the initial extension 
of the prohibition against discrimination and equal treatment concerning economically 
inactive EU citizens residing in another Member State, it seems that the CJEU has re-
versed its case-law in favour of categories once predominant in the European Economic 
Community.
76
 According to Mantu in Minderhoud, in-part referring to Meduna et al.,
“[t]he Court’s approach in Dano and Alimanovic will undoubtedly have an impact 
upon how fundamental EU citizenship is as a status and whom it can capture. An 
interpretation where economically non-active EU citizens must always have reso-
urces sufficient not to qualify for any social assistance benefit [with objectivised 
residence criteria pre-empting individual assessment in the listed cases
77
] may lead 
to an effective exclusion of most economically non-active EU citizens since in their 
national legislation Member States may set the threshold high. Take for instance as 
example the Romanian pensioners who have an average old-age pension of around 
€ 175. Such pensioners would meet the requirement of sufficient resources only 
in 8 of the 27 MS (Bulgaria, Croatia, Czech Republic, Estonia, Latvia, Lithuania, 
Poland and Slovakia).”
78
According to Kukovec, who is reconceptualising the notion of harm between 
European centres and the periphery in regard to social and goods dumping,
“the social of the periphery is foreclosed from operating powerfully. Because the 
centre’s social claim is consistently strong, the periphery’s free movement claim is 
weak. And as the periphery’s social claim is weaker, the centre’s free movement is 
of another Member State is entitled to same assistance as afforded by the employment offices in 
the Member State to the nationals of the Member State. The term “assistance”, however, does not 
include “social assistance”.
74
 Shuibhne, The Social Market Economy and Restriction of Free Movement Rights: plus c’est la même 
chose? (2019), p. 114.
75
 Mišič, The National Welfare State, Four Categories of EU Citizens, and the Pursuit of Liberal 
Equality (2019), p. 13.
76
 See Lanceiro, Dano and Alimanovic: the recent evolution of CJEU case-law on EU citizenship and 
cross-border access to social benefits (2017), pp. 65ff.
77
 See also, Thym, The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for Eco-
nomically Inactive Union Citizens (2015), p. 42.
78
 Mantu, Minderhoud, Exploring the limits of social solidarity: welfare tourism and EU citizenship 
(2016), p. 18.

62
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights stronger. The centre’s social claim—the claim against social dumping—is honou-
red, and this weakens the periphery’s free movement claim.”
79
Similar reasoning can be applied to the communitarian national-welfare-state or pu-
blic-finances-preservation logic behind the political (and legal) fight against the mythical 
creature, the “social tourist” from the East. Distinguished by his second-hand, sixth-gene-
ration Passat, he travels abroad with the sole purpose of looting the riches of the hard-wor-
king Westerners or taking their jobs,
80
 only to return with a recent-model (German) car.
Freedom of movement and residence rights enable EU citizens to take up a position 
anywhere in the EU. If managing to outrun the Member State’s national competitors,
81
 
“scoring in the away game” of the international market competition, the EU citizen, who 
initially drew the short straw, can increase his or her earnings or earnings opportuniti-
es through migration. His or her initial rational life-plan—if the benefits of migration 
exceed the benefits of staying at home—can now be more easily achieved or positively 
adjusted (more precisely: expanded) in a way as to allow pursuit of a broader array of 
tastes, desires, etc. Not only does he possess a higher disposable income, he and his fa-
mily members can also rely on accessible, quality public services or social and economic 
institutions of the host Member State.
The current legal framework, however, serves the interests of two distinct categories 
of EU citizens most. It is the citizens, whose equal opportunities (i) no longer matter due 
to the already achieved professional and/or social status, or citizens, who (ii) primarily 
serve the EU market rationale and/or the host Member State’s common good,
82
 witho-
79
 Kukovec, Law and the Periphery (2015), pp. 419–420.
80
 In the contribution, distinct positions of mobile, frontier, and posted workers are not addressed.
81
 Either by showcasing a (substantially) higher level of expertise or by adhering to less favourable 
employment conditions which are (in-part) possibly subject to negotiation, e.g. wages, bonuses, 
days of leave, promotion outlooks, etc. See, however, Article 7(1) of the Regulation 492/2011.
82
 First, it is the highly skilled professional (the on-call neurosurgeon, internationally renowned aca-
demic or, for example, fine art dealer), bypassing or knocking down linguistic, cultural and other 
barriers posed by the Member State with his or her reputation or authority. The demands of the 
national welfare states do not concern him or her due to his or her repetitive short-term stays, steady 
occupational status, or wealth. His or her professional position and social and economic circum-
stances allow him or her to remain static or become mobile at will. From a perspective of freedom 
of movement and residence rights, he or she can be considered an unconditionally deserving EU 
citizen. Second, it is the skilled professional (the electrician, nurse or, for example, receptionist), 
who is prepared to leave his or her Member State of origin to work, possibly for a lower wage or 
under de facto less favourable working conditions than national workers in socially and economical-
ly developed centres of Europe. From a freedom of movement and residence rights perspective he 
or she—together with the low skilled professional, who takes on a job unwanted by the nationals 
of a host Member State—can be considered a conditionally deserving EU citizen. His migration is 
conditioned and justified by his market contribution. See Mišič, The National Welfare State, Four 
Categories of EU Citizens, and the Pursuit of Liberal Equality (2019), pp. 23ff. Bowles, discussing 

63
Luka Mišič – Equality of Opportunity in the EU: Rethinking the European Pillar of 
Social Rights in Light of Free Movement as a Supranational Principle of Justice
ut possessing the first category’s status. It answers to EU citizens, who are successfully 
competing for expert positions or positions not taken up by domestic workers (under 
same conditions), and their social claims, but does not recognise social claims of EU 
citizens lacking exportable marketable skills, while not possessing sufficient means to 
compensate for such a deficit.
83
 Social claims of EU citizens are conditioned or justifi-
ed by their market performance, wealth, or status retention. Put differently: the single 
market, which allows for almost complete mobility of labour and thus reshapes domestic 
(formal earnings) opportunities and positions by opening up transnational competition 
for, according to Viehoff, advantageous jobs,
84
 but also jobs advantageous only to EU 
citizens coming from socially and economically less developed Member States, enhances 
earning and saving opportunities for mobile EU citizens with exportable marketable 
skills. The framework, together with the CJEU’s interpretation of the Citizens’ Rights 
Directive, however, sets up high barriers for freedom of movement and residence rights 
for EU citizens lacking such skills while not possessing enough resources not to become a 
burden of the social assistance scheme in the host Member State. Bound to their Member 
State of origin, as a rule, located in the heartlands of the European periphery, their 
global market mobility, notes: “[A]ccess to the dominant cultural standard—English fluency—is 
much more unequally distributed on a world scale than the national equivalents within national 
boundaries—fluency in the national language. The result is a division between those who have 
inherited or acquired mobile intellectual assets that are easily redeployed throughout the global 
economy—the cosmopolitans—and those that have skills that are less mobile and more specific to 
the national economy – the provincials. The distinction, roughly, is that between the skills typical 
of people working in Silicon Valley or Detroit, or between Bangalore and Kanpur.” See Bowels, 
The New Economics of Inequality and Redistribution (2012), p. 109. According to Bowels 
(ibid.), the cosmopolitans, unlike the provincials, for example, prefer cultural standardisation to (as 
a rule mandatory) mutual (social) insurance systems which characterise nation states: “Their rela-
tively easy exit from a national system of mutual insurance makes it even more difficult to finance 
the traditional forms of social protection supplied by the nation state and worsens the situation of 
those workers who lack access to the global cultural standard.” Somek’s accidental cosmopolitan 
could represent an extreme example of the kind. He is described by Corkin as a person, “who 
devoid of community bods or sense of civic responsibility, scarcely belongs to any community 
at all: a mere tourist moving effortlessly between different communities through the anonymity 
of ‘non-places’ [footnote omitted] (online shopping sites, airport-lounges that could be anywhere 
etc.) whose hyper-commodification—consumption most clearly person-to-commodity rather than 
person-to-person—abstracts from the social nature of society.” See Corkin, in: Bardutzky, Fahey 
(eds.): Framing the Subjects and Objects of Contemporary EU Law (2017), p. 100. Viehoff, 
when discussing positions that are genuinely competitive on an EU-wide level, writes, for exam-
ple, of CEOs, top-engineers, investment bankers, and chief surgeons. See: Viehoff, Equality of 
Opportunity in a European Social Market Economy (2019), p. 36.
83
 Mišič, The National Welfare State, Four Categories of EU Citizens, and the Pursuit of Liberal 
Equality (2019), p. 21.
84
 Viehoff, Equality of Opportunity in a European Social Market Economy (2019), p. 36.

64
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights rational life-plan remains open to negative adaptation, with wants, wishes, and desires 
more easily achieved in another Member State, de facto counting as expensive tastes.
85
 It 
might even occur that what is considered a need in one Member State, is considered an 
expensive taste in another.
86
If freedom of movement truly gives EU nationals a reason to feel loyal and invested 
to the success of greater integration and the development of a unified Europe,
87
 it should 
not come as a surprise if some citizens of low-income Member States seem less fond of 
the idea of a common European future than others.
88
 Even if the non-competing EU 
citizens who lack exportable marketable skills, never seized the opportunity of actually 
becoming mobile, facilitated intra-European mobility would at least give them a fair 
chance, ascribing the responsibility of having to negatively adapt their rational life to 
their rational decision of remaining in their Member State of origin. If no real oppor-
tunities are given, no responsibility can be legitimately ascribed.
89
3.2. Facilitated Mobility: Does it Change Anything?
Facilitated intra-European mobility could be brought about, for example, by a pro-
longation of the three-month period from Article 6(1) of the Directive during whi-
ch no special residence conditions apply. Job-seekers could become entitled to social 
85
 One could claim that, when developing a rational life-plan, the individual automatically adapts 
to the social and economic environment he finds himself or herself in. That is, however, the exact 
result of the lottery procedure mentioned above.
86
 See, for example, C-173/09 Georgi Ivanov Elchinov v Natsionalna zdravnoosiguritelna kasa (Elchinov) 
of 5 October 2010, ECLI:EU:C:2010:581, para. 14.
87
 See footnote n. 62.
88
 However, according to findings by Kuhn and Brack and Startin, Damay and Mercenier claim “that 
only a highly skilled and young minority interact across borders”. Referring to several other authors 
(citations in brackets omitted) they note that “[i]ntra-European migrants develop a sense of identi-
fication with the EU under certain conditions or see it, for utilitarian reasons, as a source of oppor-
tunity, The nature of the interactions, whether instrumental or affective, explains their effects: social 
interactions tend to be more effective of supporting the EU.” Referring to Kuhn, the authors note 
that the majority of intra-European transactions are instrumental by nature. See Damay, Mercenier, 
Free movement and EU citizenship: a virtuous circle? (2016), p. 1145.
89
 Similar reasoning lies behind van Oorschot’s first dimension of deservingness, which refers to con-
trol: “poor people’s control over their neediness, or their responsibility for it: the less control, the 
more deserving.” See, van Oorschot, Who should get what, and why? On deservingness criteria 
and the conditionality of solidarity among the public (2000), p. 36. The personal responsibility 
argument, however, has to be approached with great caution since it may lead to a libertarian 
opposition to mandatory (need-based) income redistribution, which all, but the extreme manifes-
tations of classical liberalism, at the end adhere to. In addition, packing one’s bags and leaving, even 
if possessing the means to do so, is never easy, especially if tied to the Member State of origin for 
justifiable reasons such as family obligations, social ties, etc.

65
Luka Mišič – Equality of Opportunity in the EU: Rethinking the European Pillar of 
Social Rights in Light of Free Movement as a Supranational Principle of Justice
assistance benefits, not only benefits intended to facilitate access to the labour market, 
if seeking (long-term) employment and, for example, possessing a genuine chance of 
finding it. As already discussed,
90
 social assistance benefits would relieve the job-seekers 
of prior long-term saving, which can be especially difficult when migrating from least 
to most developed, also most expensive Member States, if they are not entitled to rece-
ive unemployment benefits from their respective Member States of insurance. If social 
assistance benefits were granted to job-seekers who have not retained the status of a 
worker, the assessment of their social-economic situation could consist of an individu-
alised proportionality or “unreasonableness” test,
91
 accompanied by their employment 
outlooks. Unlike the three-month period, the five-year period from Article 16(1) could 
be shortened to allow for sooner (de iure) integration.
92
The proposed solutions, however, do not change much regarding the current fra-
mework of freedom of movement and residence rights, which largely follows quaran-
tining strategies
93
 concerning economically inactive or non-competing non-nationals. 
The proposal maintains the single market as an opportunity enhancing mechanism for 
competing EU citizens, changing only the conditions under which they can compe-
te. Moreover, social assistance benefits granted to job-seekers (or prospect job-seekers 
such as mobile vocational trainees or students), which would facilitate one’s search for 
employment in a different Member State, would de facto represent a work-related finan-
cial incentive (workers’ allowance), not a true social assistance benefit, even if accessed 
on means-tested basis. They would change nothing for EU citizens lacking exporta-
ble marketable skills, thus not possessing a genuine chance of finding employment, or 
citizens remaining static due to other objective or justifiable reasons, such as old age, 
disability, incapacity to migrate due to the need to perform elderly-care. For the latter, 
however, only intra-Member State redistribution, which might be as important in the 
everyday lives of Europeans, counts. According to Damay and Mercenier, the “stayers” 
are also European citizens: “[F]ree movement is not indisputably an attractive right; the 
90
 Mišič, The National Welfare State, Four Categories of EU Citizens, and the Pursuit of Liberal 
Equality (2019), p. 27.
91
 Ibid.
92
 Ibid., p. 28.
93
 According to Kramer et al., “[a] quarantining strategy serves to simultaneously isolate mobile Union 
citizens from welfare programmes and to maintain the generosity of these programmes for na-
tional citizens. Quarantining of mobile Union citizens takes place through policies and admin-
istrative strategies that specifically aim to exclude mobile Union citizens or raise the barrier of 
entrance, either at the formal (national) policy level or at the (local) administrative level. […] Some 
forms of quarantining are permitted by EU law, especially by Article 24(2) of Directive 2004/38 
which provides for explicit derogations from the principle of equal treatment.” See Kramer (et 
al.), Responding to free movement: quarantining mobile union citizens in European welfare states 
(2018), p. 1504.

66
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights movers do not unquestionably feel attached to the EU as a result of their mobility.”
94
 
Furthermore,
“presenting free movement as the main right of EU citizens while some citizens 
are not able to enjoy it in practice, or do not want to use it, does not fit most EU 
citizens’ complex realities and representations.”
95
Concerning the position of EU citizens, who lack exportable marketable skills, a sup-
ranational, solidarity-based redistribution mechanism seems—apart from the reintrodu-
ction of the proportionality test regarding access to social assistance benefits for econo-
mically inactive EU citizens (lacking sufficient means of subsistence)—to be the only 
possible solution for equalising their opportunities through intra-European migration.
96
 
It could be achieved, for example, by means of coordinating and exporting social assistan-
ce, not only social insurance benefits within the EU,
97
 with the difference in the amount 
of the benefit provided by the Member State of origin and the host Member State covered 
by the host Member State itself or from a supranational tax-funded social assistance fund 
to which all Member States would contribute regardless of migration trends.
98
A similar issue surfaces concerning enhanced consumption of public services, on 
which mobile persons, not workers, could now rely when developing their rational life-
-plans, as well as regarding health care and other issues concerning social security (public 
income security) coordination. The politically infeasible proposal, which would require 
for a shift in EU competences and would presumably be highly complicated, also falls 
victim to the initial fear of having to argue for common-budget-to-person (need-based) 
redistribution. It, however, seems to represent the only at least theoretically plausible 
manner in which to uphold the idea of free movement as a supranational principle of 
justice in a political and economic union that is not a federation. From this perspective, 
my goal of arguing in favour of facilitated, not unlimited, mobility of EU citizens seems 
94
 Damay, Mercenier, Free movement and EU citizenship: a virtuous circle? (2016), p. 1154. As 
observed by Kochenov, by law construed market citizens “are viewed as inherently more valuable 
than the uninterested, less affluent or disabled. ‘By law’ is crucially important here: those viewed 
as mobile across the invisible borders, even if they have never left their home country, are assumed 
to be a better asset, thus more worthy of protection, than sedentary citizens. The rich are viewed 
as inherently better than the poor, including children [footnotes omitted].” See Kochenov, in: 
Kochenov (ed.): Kochenov (ed.): EU Citizenship and Federalism. The Role of Rights (2017), 
pp. 38–39.
95
 Ibid., p. 1153.
96
 Mišič, The National Welfare State, Four Categories of EU Citizens, and the Pursuit of Liberal 
Equality (2019), pp. 28–29.
97
 Note the position of special non-contributory benefits (SNCBs), which are coordinated but not 
exported at EU level.
98
 Mišič, The National Welfare State, Four Categories of EU Citizens, and the Pursuit of Liberal 
Equality (2019), p. 29.

67
Luka Mišič – Equality of Opportunity in the EU: Rethinking the European Pillar of 
Social Rights in Light of Free Movement as a Supranational Principle of Justice
distant, proving that true integration and inclusion seems impossible without following 
the idea of ex-ante equality, brought about by ex-ante agreed upon ex-post redistribution.
4. Fair Chances for All: An Opportunity Missed by the EPSR?
According to the SWD, the EPSR extends protection against discrimination on the 
grounds of religion or belief, disability, age, and sexual orientation in the field of social 
protection, social security and healthcare, education and goods available to the public. 
It also extends the prohibition on the grounds of gender in the field of education.
99
 The 
Document, however, possesses only a brief reference to Article 21 of the Fundamental 
Rights Charter and Article 18 TFEU, both prohibiting discrimination on the groun-
ds of nationality,
100
 with no extension or even conformation of such prohibition in-
cluded in the provisions of the EPSR itself. As aforementioned, Principle 3 on Equal 
Opportunities does not include nationality as a personal circumstance. The EPSR, apart 
from three references to freedom of movement of workers and job-seekers in its Preamble 
(Paragraphs 6, 7, and 8),
101
 remains silent on the topic of freedom of movement and resi-
dence rights as such, while the SWD refers (under Chapter III) to freedom of movement 
for workers and the self-employed, occupational mobility
102
 and (under Chapter II) to 
entry and residence conditions for third-country nationals exercising highly qualified 
employment.
103
 According to Principle 6 of the EPSR on Wages, adequate minimum 
wages shall be ensured, in a way that provide for the satisfaction of worker’s and family 
members’ needs in light of national economic and social conditions, while safeguar-
ding access to employment and incentives to seek work. According to Principle 14 on 
Minimum Income, everyone lacking sufficient resources has the right to adequate mini-
mum income benefits, ensuring a life in dignity in all stages of life and effective access to 
enabling goods and services. Benefits for those who can work should be combined with 
incentives to (re)integrate into the labour market.
Both principles, as well as Principle 3 and others, such as Principle 20 on Access to 
Essential Services, give no clear signals indicating they should be read in a supranational 
fashion where no other legal basis that would support such reading exists. Moreover, 
Paragraph 14 of the Preamble refers to labour markets and welfare systems in the plural, 
99
 SWD (2017) 201 final, 26. 4. 2017, p. 15.
100
 Ibid, p. 14.
101
 Paragraph 6 makes direct reference to Articles 45–48 TFEU, Paragraph 7 refers to students and 
trainees as future job-seekers, while Paragraph 7 binds freedom of movement to the European single 
market.
102
 Presumably under the meaning of career transitions, since the document refers (ibid., pp. 21–22) to 
geographical and occupational mobility of workers. See also Principle 5(c) of the EPSR.
103
 SWD (2017) 201 final, 26. 4. 2017, pp. 23, 24, 48, and 61.

68
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights reinforcing the ESM as a supranational model of coordinated and only minimally har-
monised national systems. Principle 6, as highlighted above, even refers to national eco-
nomic and social conditions. At the same time, access to employment and its associated 
measures always have to be interpreted in line with free movement and equal treatment 
provisions.
From this perspective, it seems the EPSR does not bring anything new to the table 
regarding freedom of movement and residence rights. Committed to the advancement of 
social, economic, and working conditions within the Member States, it promotes furthe-
ring equal opportunities of EU citizens in their places of origin, while re-establishing 
the single market as an opportunity enhancing mechanism for competing EU citizens 
only,
104
 leaving the rest behind. Or does it?
With a Member-State-level
105
 approach to furthering equal opportunities, the EPSR 
possibly makes arguing in favour of greater common-budget-to-Member-States redis-
tribution and enhanced Member States expenditure on the social rights in light of the 
EU’s requirements of fiscal soundness easier. At least, in the long run, this should benefit 
the future generations of all EU citizens. The (on average) worst-off citizens from soci-
ally and economically less or least developed Member States can legitimately expect for 
their life-prospects to increase both through enhanced earnings opportunities and deve-
lopment of social and economic institutions (public services, etc.) at home, while the EU 
and themselves can simultaneously expect an improvement in their market-competitive-
ness from which, at least in theory, also best-off citizens from most developed Member 
States should benefit if not fearing for their precious jobs too much.
From a liberal-egalitarian perspective, enhanced common-budget-to-Member-States 
redistribution, if truly furthering equal earnings and other relevant opportunities of the 
(on average) worst-off EU citizens most, might represent a legitimate result achieved 
from under the veil of ignorance, even if producing evident utilitarian and market-en-
hancing side-effects. It is, however, a compromise reached from an ex-post position, after 
one has succumbed to the complete political infeasibility of unlimited intra-European 
mobility as a result achieved from the original position due to the perpetual fear of social 
tourism, which can equal common-budget-to-person (need-based) redistribution. The 
latter remains strongly embedded within the competence of national welfare states unless 
104
 According to Paragraph 7 of the Preamble, the commitment of the EPSR is based on the principles 
of sustainable growth and the promotion of economic and social progress, as well as cohesion and 
convergence, while upholding the integrity of the internal market.
105
 According to Ashiagbor, “[t]he embedded liberal compromise in the EU context principally in-
volved embedding the European internal market within national social policy; presupposing the 
existence and the capacity of national systems of labour law and social welfare law [mentioned earli-
er]. The EU sought to shore up working and living standards in the face of economic liberalization, 
but did so principally by supporting the member states in so doing.” See Ashiagbor, Theorizing the 
Relationship Between Social Law and Markets in Regional Integration Projects (2018), p. 439.

69
Luka Mišič – Equality of Opportunity in the EU: Rethinking the European Pillar of 
Social Rights in Light of Free Movement as a Supranational Principle of Justice
economically active mobile or fully integrated non-nationals are at stake. For the sake 
of contractual theories’ soundness, the strains of commitment concerning the ex-ante 
more favourable result of ex-post redistribution and, possibly, unlimited intra-European 
mobility of persons, ought to be firmly in place. The effects of redistribution, aimed at 
furthering equal opportunities on a Member State level, are at the same time limited to 
distant future generations of Europeans. From this perspective, the EPSR can hardly be 
recognised as groundbreaking.
This applies to its relation to the above-mentioned ESM as well. According to 
Paragraph 17 of the Preamble, the EPSR is to be implemented at both the Union and the 
Member States level taking into account different socio-economic environments, the di-
versity of national systems, including the role of social partners, while respecting Member 
States competences and the principles of subsidiarity and proportionality. According to 
Paragraphs 18 and 19, the EPSR does not entail an extension of the EU’s powers and 
the tasks conferred by the T reatises, while it respects the diversity and national identities 
of the Member States and the organisation of their public authorities at the national, 
regional, and local level. Following the spirit and wording of Article 153(4) TFEU, the 
EPSR does not affect Member States’ right to define the fundamental principles of their 
social security systems and manage their public finances and must not significantly affect 
its financial equilibrium. Since freedom of movement and residence rights are closely 
related with the EU citizens’ social rights, the EPSR’s lack of reference concerning the 
former coincides with no significant developments to be expected concerning the latter.
5. Conclusion
In the discussion, I tried to establish and uphold free movement of EU citizens as 
a supranational principle of justice, more precisely, a result produced by the supranati-
onal application of the fair equality of opportunity principle. Namely, free movement 
possesses the power to diminish the burdens of national citizenship, ascribed to every 
EU citizen in a lottery-like procedure, if the fair equality of opportunity principle con-
cerning access to primary goods such as income and wealth, or access to quality public 
services is interpreted in a substantive and not merely formal way once applied to the EU 
setting. Primary goods of sufficient value or quality are namely needed for the individual 
to develop a rational life plan autonomously and to lead his or her life according to an 
autonomous conception of the good life with as little adjustment in his or her rational 
desires as possible.
I argued, in the first place, for facilitated and not unlimited mobility of persons, re-
gardless of their economic activity or possession of exportable marketable skills. However, 
it soon became clear that the universal and unconditional nature of principles of justi-
ce—decided on from the original position in an ex-ante manner—not only tolerates but 

70
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights also requires an “all-in” approach of arguing in favour of unlimited mobility of persons, 
even if at the same time having to argue in favour of ex-post (need-based) redistribution. 
As mentioned above, further integration and inclusion of EU citizens, regardless of their 
Member State affiliation and/or single market performance, seems impossible without 
following the idea of the ex-ante equality brought about by ex-ante agreed upon ex-post 
redistribution (e.g. coordination and export of social assistance). The burdens of belo-
nging to one of the socially and economically least developed Member States seem to 
outweigh the burdens of belonging to one of the most developed Member States, while 
facing higher public expenditure due to potential migration of economically inactive 
persons or persons lacking exportable marketable skills after the veil has been lifted—
even if the initial group of future communities, which do not vary significantly in its 
social and economic structure, is open to expansion.
The EPSR shows no signs of a supranational approach to equal opportunities. 
Following a Member-States-level approach, possibly most visible in Principle 6 on 
Wages, it does not refer to freedom of movement or residence rights, nor does Principle 
3 on Equal Opportunities refer to the personal circumstance of nationality. It should, 
however, not be considered a fully missed opportunity if acted upon in a way as to duly 
follow the second-best result achieved from the original position with effective legal and 
further political action, i.e. laying the foundations for enhanced common-budget-to-
-Member-States redistribution and facilitated Member States expenditure in the field 
of social protection and public services such as education, life-long learning, public ho-
using, public transport, etc. Nonetheless, the fish of commodifying market citizenship, 
safely hidden away in the deep dark waters of EU law, is waiting to be fried. The EPSR 
and its proponents have so far only been fly fishing.
References
Ackerman, Bruce A.: Social Justice in the Liberal State, Yale University Press, New 
Haven, London 1980.
Aranguiz, Ane: Social mainstreaming through the European pillar of social rights: 
Shielding “the social” from “the economic” in EU policymaking, in: European 
Journal of Social Security 20 (2019) 4, pp. 341–363.
Arneson, Richard J.: Meaningful Work and Market Socialism, in: Ethics, 97 (1987) 3, 
pp. 517–545.
Arneson, Richard J.: Equality of Opportunity (2015), in: Zalta, Edward N. (et al.) (eds.), 
Stanford Encyclopedia of Philosophy, Stanford University, Stanford, 
available at: https://leibniz.stanford.edu/friends/preview/equal-opportunity 
(accessed 22 August 2019).

71
Luka Mišič – Equality of Opportunity in the EU: Rethinking the European Pillar of 
Social Rights in Light of Free Movement as a Supranational Principle of Justice
Ashiagbor, Diamond: Theorizing the Relationship Between Social Law and Markets in 
Regional Integration Projects, in: Social & Legal Studies, 27 (2018) 4, pp. 
435–455.
Bauböck, Rainer: Citizenship and Collective Identities as Political Sources of Solidarity 
in the European Union, in: Banting Keith & Kymlicka, Will (eds.): The 
Strains of Commitment. The Political Sources of Solidarity in 
Diverse Societies, Oxford University Press, Oxford 2017, pp. 80–106.
Beblavý, Miroslav, Marconi, Gabriele & Maselli, Ilaria: A European Unemployment 
Benefit Scheme, European Commission, CEPS, Brussels 2017.
Blumann, Claude: The Challenges of Social Cohesion in the European Union, 
in: Hohnerlein, Eva Maria, Hennion, Sylvie & Kaufmann, Otto (eds.): 
Employment Biographies and Social Protection in Europe, Springer 
Verlag, Berlin, Heidelberg 2018, pp. 27–31.
Bologna, Silvio: The European Unemployment Benefit Scheme: Legal Basis for 
Resocialising Europe, in: Economia & lavoro, (2017) 1, pp. 11–26.
Bowles, Samuel: T he New Economics of Inequality and Redistribution, Cambridge 
University Press, Cambridge 2012.
Claassen, Rutger, Gerbrandy, Anna, Princen, Sebastiaan & Segers, Mathieu: Four 
Models of Protecting Citizenship and Social Rights in Europe: Conclusions 
to the Special Issue “Rethinking the European Social Market Economy”, in: 
Journal of Common Market Studies 57 (2018) 1, pp. 159–174.
Corkin, Joseph: Who, then, in [European] law, is my neighbour? Limiting the argument 
for external effects, in: Bardutzky, Samo & Fahey, Elaine (eds.): Framing 
the Subjects and Objects of Contemporary EU Law, Edward Elgar, 
Cheltenham, Northampton (MA) 2017, pp. 72–104.
Damay, Ludivine & Mercenier, Heidi: Free movement and EU citizenship: a virtuous 
circle?, in: Journal of European Public Policy, 23 (2016) 8, pp. 1139–1157.
De Boer, Nik J.: Fundamental Rights and the EU Internal Market: Just how Fundamental 
are the EU T reaty Freedoms – A Normative Enquire Based on Rawls’ Political 
Philosophy, in: Utrecht Law Review, 9 (2013) 1, pp. 148–168.
Di Robilant, Anna: Genealogies of Soft Law, in: The American Journal of Comparative 
Law, 54 (2006) 3, pp. 499–554.
Dworkin, Ronald: What is Equality? Part 2: Equality of Resources, in: Philosophy & 
Public Affairs, 10 (1981) 4, pp. 283–345.
European Commission, Reflection Paper on the Social Dimension of Europe, 
European Commission, Brussels 2017.

72
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights Ferrara, Maurizio: Social Europe and its Components in the Midst of the Crisis, in: West 
European Politics, 37 (2014) 4, pp. 825–843.
Freeman, Samuel: The Law of Peoples, Social Cooperation, Human Rights, and 
Distributive Justice, in: Social Philosophy and Policy, 23 (2006) 1, pp. 29–68.
Gaus, Gerald F.: The Diversity of Comprehensive Liberalisms, in: Gaus, Gerald F. 
& Kukathas, Chandran (eds.): Handbook of Political Theory, Sage 
Publications, London, Thousand Oaks, New Delhi 2004, pp. 100–114.
Guzman, Andrew T. & Meyer, Timothy L.: International Soft Law, in: Journal of Legal 
Analysis, 2 (2010) 1, pp. 171–225.
Goodin, Robert E., Headey, Bruce, Muffels, Ruud & Dirven, Henk-Jan: The Real 
Worlds of Welfare Capitalism, Cambridge University Press, Cambridge 
1999.
Hendrickx, Frank: Editorial: The European pillar of social rights: Interesting times ahead, 
in: European Labour Law Journal, 8 (2017) 3, pp. 191–192.
Hendrickx, Frank: The European Social Pillar: A first evaluation, in: European Labour 
Law Journal, 9 (2018) 1, pp. 3–6.
Kamminga, Menno R.: Rawls and the European Union, in: Philica (2014). Available at: 
https://www.rug.nl/research/portal/files/55769032/Rawls_European_Union.
pdf (accessed 22 August 2019).
Kamminga, Meno R.: Cosmopolitan Europe? Cosmopolitan justice against EU-
centredness, in: Ethics & Global Politics, 10 (2017) 1, pp. 1–18.
Klabbers, Jan: The Redundancy of Soft Law, in: Nordic Journal of International Law, 65 
(1996) 2, pp. 167–182.
Klabbers, Jan: The Undesirability of Soft Law, in: Nordic Journal of International Law, 
67 (1998) 4, pp. 381–391.
Kochenov, Dimitry: EU Citizenship without duties, in: European Law Journal, 20 
(2014) 4, pp. 482–498.
Kochenov, Dimitry: On Tiles and Pillars: EU Citizenship as a Federal Denominator, in: 
Kochenov, Dimitry (ed.): EU Citizenship and Federalism. The Role of 
Rights, Cambridge University Press, Cambridge 2017, pp. 3–82.
Kukovec, Damjan: Law and the Periphery, in: European Law Journal, 21 (2015) 3, pp. 
406–428.
Kukovec, Damjan: Taking Change Seriously: The Rhetoric of Justice and the 
Reproduction of the Status Quo, in: Kochenov, Dimitry, de Búrca, Gráinne 
& Williams, Andrew (eds.): Europe’s Justice Deficit?, Hart Publishing, 
Oxford, London 2015, pp. 319–336.

73
Luka Mišič – Equality of Opportunity in the EU: Rethinking the European Pillar of 
Social Rights in Light of Free Movement as a Supranational Principle of Justice
Kymlicka, Will: Contemporary Political Philosophy. An Introduction. Second 
Edition, Oxford University Press, Oxford 2005.
Kramer, Dion, Sampson Thierry, Jessica & van Hooren, Franca: Responding to free 
movement: quarantining mobile union citizens in European welfare states, in: 
Journal of European Public Policy, 25 (2018) 10, pp. 1501–1521.
Lanceiro, Rui: Dano and Alimanovic: the recent evolution of CJEU case-law on EU 
citizenship and cross-border access to social benefits, in: UNIO – EU Law 
Journal, 3 (2017) 1, pp. 63–77.
Mantu, Sandra & Minderhoud, Paul: Exploring the limits of social solidarity: welfare 
tourism and EU citizenship, in: UNIO – EU Law Journal, 2 (2016) 2, pp. 
4–19.
Menédez, Agustín José: European Citizenship after Martínez Sala and Baumbast. Has 
European Law become more human but less social. Working Paper n. 11, in: 
Arena Working Paper (2009), pp. 1–41.
Miller, David: Principles of Social Justice, Harvard University Press, Cambridge 
(MA) 2003.
Miller, David: Against Global Egalitarianism, in: The Journal of Ethics, 9 (2005) 1-2), 
pp. 55–79.
Mišič, Luka: Theories of Political Philosophy as Guiding Principles in Social Security, in: 
Studies on Labour Law and Social Policy, 25 (2018) 3, pp. 271–291.
Mišič, Luka: The National Welfare State, Four Categories of EU Citizens, and the 
Pursuit of Liberal Equality, manuscript accepted for publication in (working 
title): “Autoritäres vs Liberales Europa”, Tagung junger Europarechtler*innen 
Wien 2019. Jan Sramek Verlag, Vienna, pp. 5–31 (pages cited might vary in 
printed version).
Moellendofr, Darrel, Equality of Opportunity Globalized?, in: Canadian Journal of Law 
and Jurisprudence, 19 (2006) 2, pp. 301–318.
Moon, Donald J.: The Political Theory of the Welfare State, in: Gaus, Gerald F. 
& Kukathas, Chandran (eds.): Handbook of Political Theory, Sage 
Publications, London, Thousand Oaks, New Delhi 2004, pp. 210–222.
Newman, Janet & Tonkens, Evelien, Introduction, in: Newman, Janet & Tonkens, 
Evelien (eds): Participation, Responsibility and Choice. Summoning 
the Active Citizen in Western European Welfare States, Amsterdam 
University Press, Amsterdam 2011.
Obinger, Herbert, Leibfried, Stephan & Castles, Francis G.: Bypasses to a social Europe? 
Lessons from federal experience, in: Journal of European Public Policy 12 
(2005) 3, pp. 545–571.

74
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights Peled, Yoav & Brunner, José: Culture Is Not Enough: A Democratic Critique of Liberal 
Multiculturalism, in: Ben-Ami, Shlomo, Peled, Yoav & Spektorowski, Alberto 
(eds.): Ethnic Challenges to the Modern Nation State, Palgrave, 
Houndmills, Basingstoke 2000, pp. 65–94.
Rawls, John: A Theory of Justice. Original Edition, The Belknap Press of Harvard 
University Press, Cambridge (MA) and London 2005.
Raz, Joseph, Morality of Freedom, Oxford University Press, Oxford 1986.
Sandel, Michael J: Justice. What’s the Right T hing to Do? Farrar, Straus and Giroux, 
New York 2009.
Scharpf, Fritz W.: The Asymmetry of European Integration, or Why the EU Cannot 
be a “Social Market Economy”, in: Socio-Economic Review, 8 (2010) 2, pp. 
211–250.
Schmidt, Susanne K., Blauberger, Michael & Sindbjerg, Dorte: Free movement and 
equal treatment in an equal union, in: Journal of European Public Policy, 25 
(2018) 10, pp. 1391–1402.
Schoukens, Paul: EU Social Security Law: T he Hidden “Social” Model, Inaugural 
Address, Tilburg University, Tilburg 2016.
Senden, Linda: Soft Law in European Community Law, Hart Publishing, Oxford, 
Oregon 2004.
Senden, Linda: Soft Law, Self-Regulation and Co-Regulation in European Law: Where 
Do They Meet?, in: Electronic Journal of Comparative Law, 9 (2006) 1, pp. 
1–27.
Shimmel, Natalie: Welcome to Europe, but Please Stay Out: Freedom of Movement 
and the May 2004 Expansion of the European Union, in: Berkley Journal of 
International Law, 24 (2006) 3, pp. 760–800.
Shuibhne, Niam Nic: The Social Market Economy and Restriction of Free Movement 
Rights: plus c’est la même chose?, in: Journal of Common Market Studies, 57 
(2018) 1, pp. 111–126.
Sindbjerg Martinsen & Dorte, Vollaard, Hans: Implementing Social Europe in Times of 
Crises: Re-established Boundaries of Welfare?, in: West European Politics, 37 
(2014) 4, pp. 677–692.
Somek, Alexander: National Solidarity, Global Impartiality, and the Performance of 
Philosophical Theory. The Example of Migration Policy, in: Ratio Juris, 11 
(1998) 2, pp. 103–125.
Somek, Alexander: From Workers to Migrants, from Distributive Justice to Inclusion: 
Exploring the Changing Social Democratic Imagination, in: European Law 
Journal, 18 (2012) 5, pp. 711–726.

75
Luka Mišič – Equality of Opportunity in the EU: Rethinking the European Pillar of 
Social Rights in Light of Free Movement as a Supranational Principle of Justice
Spaventa, Eleanor: Earned Citizenship – Understanding Union Citizenship through Its 
Scope, in: Kochenov, Dimitry (ed.): EU Citizenship and Federalism. The 
Role of Rights, Cambridge University Press, Cambridge 2017, pp. 204–225.
Stefan, Oana: European Union Soft Law: New Developments Concerning the Divide 
between Legally Binding Force and Legal Effects, in: The Modern Law Review, 
75 (2012) 5, pp. 879–893.
Stefan, Oana: Helping Loose Ends Meet? The Judicial Acknowledgment of Soft Law as 
a Tool of Multi-Level Governance, in: Maastricht Journal of European and 
Comparative Law 21 (2014) 2, pp. 359–379.
Sunstein, Cass R.: Legal Interference with Private Preferences, The University of Chicago 
Law Review, 53 (1986) 4, pp. 1129–1174.
Taylor, Charles Philosophical Arguments, Harvard University Press, Cambridge, 
MA, London 1995.
Thym, Daniel, The Elusive Limits of Solidarity: Residence Rights of and Social Benefits 
for Economically Inactive Union Citizens, in: Common Market Law Review, 
52 (2015), pp. 17–50.
Temkin, Larry S.: Illuminating Egalitarianism, in: Christiano, Thomas & Christman, 
John (eds.): Contemporary debates in political philosophy, Wiley-
Blackwell, Chichester, Malden, MA, Oxford 2009, pp. 155–178.
Tomasi, John, Free Market Fairness, Princeton University Press, Princeton 2012.
Van Oorschot, W.J.H., Who should get what, and why? On deservingness criteria and 
the conditionality of solidarity among the public, in: Policy and Politics: 
Studies of local government and its services, 28 (2000) 2, pp. 33–48.
Van Parijs, Philippe & Vanderborght, Yannick: Basic Income. A Radical Proposal for 
a Free Society and a Sane Economy, Harvard University Press, Cambridge 
(MA) 2017.
Verschueren, Hervig: Free Movement of Benefit Toursim: The Unreasonable Burden of 
Brey, in: European Journal of Migration and Law, 16 (2014) 2, pp. 147–179.
Verschueren, Herwig: Free Movement of EU Citizens. Including for the Poor?, in: 
Maastricht Journal of European and Comparative Law, 22 (2015) 1, pp. 10–34.
Verschueren, Herwig: Recent case before the Court of Justice of the European Union, in: 
European Journal of Social Security, 19 (2017) 1, pp. 71–82.
Viehoff, Juri: Equality of Opportunity in a European Social Market Economy, in: Journal 
of Common Market Studies, 57 (2019) 1, pp. 28–43.
Zetterquist, Ola: A European Social Contract?, in: Scandinavian Studies in Law, 52 
(2007), pp. 322–347.

160
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights UDK: 349:342:061.1EU
Zbornik znanstvenih razprav 
Perspektive Evropskega stebra socialnih pravic 
LXXX. letnik, 2020, strani 41–75
Luka Mišič
Enakost v priložnosti v EU: razmislek o Evropskem stebru socialnih pravic v luči 
svobode gibanja kot nadnacionalnega načela pravičnosti
Evropski steber socialnih pravic, ki so ga novembra 2017 razglasili predsedniki Evropskega 
parlamenta, Sveta Evropske unije in Evropske komisije, vzpostavlja 20 temeljnih na-
čel, ki obsegajo tri vsebinske sklope: Enake možnosti in dostop do trga dela (1 do 4), 
Pošteni delovni pogoji (5 do 10) in Socialna zaščita ter vključenost (11 do 20). Načela 
Evropskega stebra socialnih pravic, namenjena razvoju poštenih in dobro delujočih trgov 
dela in sistemov socialne varnosti v Evropi, so zapisana v jeziku pravic in, kot ugotavljajo 
avtorji, bralca spominjajo na listino. Vendarle pa je dokumentu, ki zahteva nadaljnjo 
normodajno aktivnost pristojnih institucij EU, praviloma pripisana lastnost mehkega 
prava ali narava političnega dokumenta.
Avtor obravnava tretje načelo Evropskega stebra socialnih pravic (Enake možnosti), v 
skladu s katerim ima vsakdo, ne glede na spol, raso ali narodnost, vero ali prepričanje, 
invalidnost, starost ali spolno usmerjenost, pravico do enakega obravnavanja in enakih 
možnosti v zvezi z zaposlitvijo, socialno zaščito, izobraževanjem ter dostopom do blaga 
in storitev, ki so na voljo javnosti. Načelo enakih možnosti povezuje s šestim načelom 
Evropskega stebra socialnih pravic (Plače), ki delavcem zagotavlja pravico do poštenih 
plač, ki omogočajo dostojno raven življenja. Vendar pa dostojno raven življenja avtor raz-
lagam precej širše, to je v luči posameznikove zmožnosti dostopati do primarnih dobrin, 
ki mu omogočajo življenje v skladu s svobodno izbranim načinom življenja. Ob eko-
nomsko aktivnih državljanih EU avtor v razpravi tako obravnava tudi položaj ekonom-
sko neaktivnih državljanov ali državljanov, ki ne razpolagajo z mobilnimi ali izvozljivimi 
tržnimi spretnostmi, s katerimi bi lahko učinkovito nastopali na enotnem trgu.
V razpravi, v kateri se avtor sklicuje tudi na nekatere dobro znane odločbe Sodišča EU 
s področja svobode gibanja, pravice do prebivanja in dostopa do socialnih dajatev v luči 
načela enake obravnave ekonomsko aktivnih in neaktivnih državljanov EU, si prizadeva 
pokazati, kako načelo enakih možnosti, kadar to obravnavamo v luči temeljnih načel 
egalitarnega liberalizma, zahteva izničenje ali vsaj omejitev negativnih učinkov, pove-
zanih s statusom državljanstva posamezne države članice. Tako v prvem delu prispevka 
podrobno obravnava načelo enakih možnosti, natančneje, načelo enakosti v priložnosti 

161
Sinopsisi
(angl. equality of opportunity), ki je v samem jedru politično-filozofske teorije egalitarne-
ga liberalizma, in povezavo tako interpretiranega načela z institutom nacionalnega dr-
žavljanstva, pridobljenega v fiktivnem loterijskem postopku. V drugem delu prispevka 
avtor obravnava veljavno ureditev svobode gibanja in pravice do prebivanja državljanov 
EU, kot je ta določena v primarnem in sekundarnem pravu EU, ter posledice, ki jih ima 
ureditev v razmerju do enakih priložnosti dostopa do primarnih dobrin (na primer do-
hodka, bogastva in izobrazbe). Slednje državljanom EU namreč omogočajo zasledovanje 
lastne predstave o dobrem življenju. V tretjem delu prispevka si avtor prizadeva pokazati, 
kako Evropski steber socialnih pravic, pretežno sledeč tržni miselnosti ali naravi EU, 
ohranja nevtralni položaj v razmerju do razvoja osvobajajočega evropskega socialnega 
modela in dejanskih priložnosti v življenjih državljanov različnih držav članic.
Avtor se, sicer v strahu pred nujnostjo vzpostavitve sistema naknadne, v načelu potreb 
utemeljene redistribucije sredstev med državami članicami in državljani EU, zavzema za 
načelo (proste) svobode gibanja, ki ga določa kot morebitno prvoizbrano nadnacionalno 
načelo socialne pravičnosti. Slednje, kadar je to s strani racionalnih snovalcev nadnaci-
onalne skupnosti določeno v tako imenovanem izhodiščnem položaju ali položaju izza 
Rawlsove tančice nevednosti, namreč lahko učinkovito izniči bremena državljanstva dr-
žave članice, povezana z neenakim ali neučinkovitim dostopom do primarnih dobrin v 
socialno-ekonomsko najmanj razvitih članicah EU.
Ključne besede: Evropski steber socialnih pravic, enakost v priložnosti, svoboda gibanja, 
državljanstvo EU, egalitarni liberalizem, evropski socialni model.

172
Zbornik znanstvenih razprav – LXXX. letnik, 2020 
Perspektive Evropskega stebra socialnih pravic / Pers Pectives on the e uro Pean Pillar of s ocial r ights UDC: 349:342:061.1EU
Zbornik znanstvenih razprav 
Perspectives on the European Pillar of Social Rights 
V olume LXXX, 2020, pp. 41–75
Luka Mišič
Equality of Opportunity in the EU: Rethinking the European Pillar of Social 
Rights in Light of Free Movement as a Supranational Principle of Justice
The author interprets equality of opportunity as individuals’ equal access to primary 
goods, such as income, wealth, education, health regardless of personal circumstances, 
natural endowments, and constrains and establishes free movement of EU citizens as 
persons, not workers or self-employed persons, as a supranational principle of justice. 
More precisely, the author claims that free movement, regardless of citizens’ economic 
activity or possession of mobile or exportable marketable skills, represents a valid result 
produced by the supranational application of the fair equality of opportunity principle 
within the setting of the expending European Union. Primary goods of sufficient value 
or quality are needed for the individual to develop a rational life plan autonomously and 
to lead his or her life according to an autonomous conception of the good life with as 
little adjustment in his or her rational desires as possible. Since the level of adjustment 
or adaptation varies among the Member States and is, among other, dependent on the 
level of its social and economic development (e.g. the development of the public services 
individuals can access), fictitious EU citizens, when placed behind the veil of ignorance, 
are strongly motivated to neutralise adverse effects of belonging to Member States show-
casing a low level of development. From an ex-ante position of the rational future EU cit-
izen, free movement, followed by the second-best result of intra-Member State redistri-
bution, neutralises such adverse effects. Focusing on Principle 3 of the European Pillar of 
Social Rights, the author endeavours to establish whether the soft-law document allows 
for or possibly even promotes a reading, which merges the notion of equal opportunities 
with the idea of free movement, or does it, conversely, adhere to a Member-State-level 
promotion of equal opportunities, following the idea of market mobility of EU citizens 
and the current structure of the European Social Model.
Keywords: European Pillar of Social Rights, equality of opportunity, free movement, 
EU citizenship, liberal egalitarianism, European social model.