Combating Reverse Discrimination: Who Should Do the Job?
| Published date | 01 December 2009 |
| Author | A.P. Van Der Mei |
| Date | 01 December 2009 |
| DOI | 10.1177/1023263X0901600401 |
| Subject Matter | Editorial |
16 MJ 4 (2009) 379
eDiToR ial
CombaTing ReveRse DisCRiminaTion:
Who shoUlD Do The Job?
A.P. M
e case law of the Court of Justice of the European Union (EU) on Union citizenship has
triggered, and continues to trigger, divergent reactions. Many Member States, supported
by various commentators, have critici zed the Court for having exceeded t he limits of its
interpretative powers. e Court has been viewed as acting as a judicial Einzelgänger and
disrespecting t he role that the EU legislature ought to play in shaping Union citizensh ip
and interpreting t he rights that are linked to that status. Others have accused the Court
of rather too easily accept ing policy choices made by the Union’s legislative branch or of
refusing to ta ckle legal issues that are at odds with the notion of Union citizenship. e
latter holds true in t he case of the phenomenon, or problem, of reverse discrim ination.
In the context of EU law regarding free movement of persons, reverse discrimination
occurs in so-cal led ‘internal situations’ or ‘purely internal situations’. A Union citizen
who has moved across the inter-State borders, or nds him- or herself otherwise in
a cross -border situation, may rely on EU law. A non-mover, in pri nciple, is subjec t to
national law only. Where EU law is more generous than national law, the non-mover is,
in his or her own Member State, treated less favorably than a mobile Union citizen. e
non-mover may be unable to l ive with his or her t hird country spouse or parent, whilst
his or her neighbour who has come from a nother Member State is entitled to family
reunication. A Belg ian national working and liv ing in the Walloon community ca n be
denied social benets in Flanders, but a Dutch worker must be granted access to Flemish
benet schemes.
is, as many may feel, t hink or argue, is odd, even unfair. e fact t hat Member
State nationals c an, in their own Member State, be treated less favorably than nationals
of other Member States is dicu lt to compare with the notion of a common European
citizenship. e Court, as commentators have argued, should move away from the
classic principle that EU law does not apply in internal situations and outlaw re verse
discrimination.
No doubt, this claim has legal streng th. Union citizenship confers upon beneciaries
two basic rights: freedom of movement and non-discrimination. es e rights are each
separately linked to Union citizenship. ey are not linked to each other. ere is nothing
in the Treaty that compels the conclusion that equal t reatment in law is reserved for
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