Silvia Spinaci

The EU Prohibition on Discrimination on the Basis of Nationality and the Constitutional Principle of Equality.

  • Abstract

Informations and abstract


Non-discrimination because of nationality is a keystone of European law inasmuch as it is an essential instrument for the realisation of a proper functioning of the common market. Therefore, it is not protected as a fundamental right per se, but as a condition for the effective freedom of movement recognised by the Treaty. This value instrumental for the guarantee of non-discrimination marks a deep gap between Art. 12 of the EC Treaty and any constitutional principle of equality. Nevertheless, in actual experience Art. 12 has been applied much more broadly both in EU secondary legislation and a decidedly creative brand of jurisprudence on the part of the Court of Justice in the matter of freedom of movement. The first part of the present article sets out to reconstruct EU jurisprudence in the matter of freedom of movement and social services, and to analyse the effects it has produced on the process of European integration and national welfare systems, with the aim of understanding how much of a 'beachhead' is makes out of the principle of non-discrimination on the basis of nationality in the slow creation of a network of European solidarity, while at the same time constituting a possible aggravating circumstance in terms of the vexed question of the sustainability of the costs of social spending. The second part of the work further takes up reflection on the relationship between Art. 12 of the EC Treaty and the constitutional principle of equality, to show how the ever increasingly broader application of EU principles opens ever increasingly more complex prospects, including under a more specifically constitutional profile.

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