"P v S: Kite flying or a new constitutional approach?"

Barnard, Catherine. (1997) "P v S: Kite flying or a new constitutional approach?". In: UNSPECIFIED, Seattle, WA. (Unpublished)

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Abstract

In the annals of Community law history, the judgment in P v S might be hailed as the Ven Gend en Loos, or the Costa v ENEL of its time. Or it may not. In this chapter I shall argue that the judgment in P v S potentially recognises not only that the principle of equality is a genuine, moral, fundamental principle of Community law but one which takes its place at the very heart of the Community's constitution. Whether the potential offered by P v S is realised depends on public (and, in particular, governmental) reaction and on the Court itself. The unusual passion and force behind such arguments clearly suggest that P v S is an important case. I would suggest that the judgment may be significant for two main reasons. First, it seems to envisage a broad approach to the principle of equality, reinforcing the idea of equality as a fundamental right which forms part of the Constitutional Code of the Union. Not only is the recognition of the principle of equality significant in its own right but, some would argue, it also serves both legitimising and integrative functions in the Union. Secondly, the Court in P v S seems to recognise both the moral and economic content of the principle of equality. I propose to discuss both the potential significance of the judgment and the barriers which might prevent it from realising its full potential.

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