The CJEU’s jurisprudence on social rights has significantly contributed to the development of a European legal framework for a common welfare state scheme using (and misusing) EU citizenship as a normative cornerstone, and the preliminary reference as a procedural tool to impose its normative view on domestic courts. Indeed, the CJEU has been facing an increasing number of preliminary references concerning individuals (both EU citizens and Third country nationals legally residents in a MS) who – having exercised their freedom to move within the EU and benefiting from their right to reside – claim for social protection. In order to extend citizenship’s rights protection, by means of its interpretative techniques, the CJEU has both overcome and weakened the strength of the economic conditions set up by Directive 2004/38. These limitations, though, aim at softening the impact on the public finances of the host State of any access to social welfare by mobile citizens.
This judicial approach is debatable. Its top-down logic bypasses traditional processes of representative power and democratic decision making, at both the European and national level.
It impinges upon the competences and the margin of appreciation of Member States in deciding their own policies concerning welfare schemes. The outcome of the Court’s method might also increase legal uncertainty and finally jeopardize CJEU’s legitimacy before domestic courts.
While the Court stresses the importance of guaranteeing effective judicial protection of European citizens’ social rights across national borders, much of the literature has also drawn attention to the implied risks, questioning both the validity of the “artificial” concept of solidarity referred by the Court and the use of the preliminary reference procedure to create dangerous sets of rules.
This paper discusses the impacts of this “normative” approach upon domestic legal systems and refers to the Italian Constitutional court’s adjudication method.
