What is driving rates of social policy preliminary references to the CJEU? Evidence from the United Kingdom and France

摘要

Preliminary references to the Court of Justice for the European Union are unevenly distributed across the EU, creating differing access to justice for European citizens. This study presents case studies of the UK and France, exploring factors affecting rates of social policy preliminary references from 1996–2009. The UK had a rate twice that of France. What accounts for this difference? Analysis of documentary evidence and 25 expert interviews help to explain the differing rates. Themes were related to policy, structural factors and the agency of actors. In the UK, policy themes are the free movement of persons and the ‘Right to Reside’ test. Legal aid and legal NGOs help individuals access the Court and drive test case strategies. In France, a high degree of dualisation in the welfare state creates an insider/outsider dynamic. Coupled with the resistance of courts and a lack of comparable actors to drive preliminary references, this contributes to a lower rate of references.