Reverse Discrimination in Purely Internal Situations: An Incongruity in a Citizens’ Europe

Abstract

Reverse discrimination suffered by Member State nationals in purely internal situations has traditionally been considered by the Court of Justice to be a permissible difference in treatment that falls outside the scope of EC law. The principal aim of this article is to argue that, in the light of the introduction of the status of Union citizenship and, in particular, the interpretation afforded by the ECJ to some of the citizenship provisions, the Court should reconsider its stance on the issue of reverse discrimination. It will be explained that the Court has already made some tentative steps towards this direction: in line with the overall developments in the EC since 1993, the Court in recent years, in some of its case-law, has extended the scope of application of the free movement Treaty Articles to situations which presented a very tenuous link with those provisions, preventing, in this way, the emergence of reverse discrimination. It will be concluded that, although the Court’s underlying objective in those cases has been correct, the approach it has followed in attaining that objective has, nevertheless, been the wrong one. Reverse discrimination is, indeed, an incongruity in a Citizens’ Europe, yet, the scope of the fundamental freedoms provisions can never be extended in such a way as to encompass this difference in treatment since it does not impede the achievement of their sole aim (the establishment of a single market). Therefore, some other way should be employed for bringing reverse discrimination within the scope of EC law and, where appropriate, for ruling that it amounts to a prohibited difference in treatment. Reverse discrimination will be re-proposed as an unjustified violation of the general principle of equality, the latter being one of the core principles that must be respected in a Citizens’ Europe.