Third Country Nationals Versus EU Citizens: Discrimination Based on Nationality and the Equality Directives

Abstract

The creation of an area of freedom, security and justice and the communitarisation of the immigration and asylum policy of the EU are important steps toward integration and fair treatment of Third Country Nationals (TCNs). And yet, EU law presents a number of loopholes in relation to the treatment of non-EU nationals who are subject to discrimination based on nationality and race. These two grounds of discrimination are closely related, and difficult to distinguish and yet important to the development of such a space. The paper discusses the non-discrimination principles on the grounds of nationality and race, respectively based on Art. 18 TFEU (ex Art. 12 EC, as amended) and on Art. 19 TFEU (ex Art. 13 EC, as amended) and their scope of application. It analyses some of the discrepancies in the treatment of TCNs as opposed to EU citizens emerging from the Racial Equality Directive (2000/43/EC) and the Framework Equality Directive (2000/78/EC) (hereafter Equality Directives). The Art., then, considers the approach used by Court of Justice of the European Union (ECJ) in a relatively recent case Centrum Voor Gelijkheid on racial discrimination and espouses the thesis that the limitations contained in both Directives, together with the current interpretation of Art. 18 TFEU (ex Art. 12 EC, as amended), have created a stratification of entitlements and consequently a hierarchy of people legally resident within the EU. The conclusive section reflects on the potentialities offered by the Charter of Fundamental Rights of the EU and its recent effect, as pronounced in the Kucukdeveci case, in providing a more extensive protection to TCNs.