Enhancing the Protection of Third-Country Nationals against Discrimination: Putting EU Anti-Discrimination Law to the Test

AuthorElise Muir
Publication Date01 March 2011
Date01 March 2011
136 18 MJ 1–2 (2011)
E M*
Non-discrimination and migration constitute two areas of EU law and policy that have
greatly evolved since the entry into force of the Amste rdam Treaty. Both are of particular
relevance to third-country nationals whose status, mobility and integration may depend
highly on EU migration law and the EU’s prohibition of discrimination. In between these
two  elds of EU law, there exists however a grey z one that remains insu ciently explored:
it is a challenge for the coherence of EU anti-di scrimination law. Should and can EU law
enhance the protection of the third-country nationals whose status it regulates against
nationality discrimination and again st other forms of discrimination that may result f rom
EU migration law?
Keywords: anti-discrimination; fundamental rig hts; migration law; national ity
discriminat ion; third-country nationals
e last decade has wit nessed a sharp expansion of the scope of the EU’s prohibition of
discriminat ion.  e EU legislator enhanced the right to equa l treatment on the grounds
of n at ion al it y fo r m obi le E U c it ize ns not eng ag ed i n a n e con om ic a ct iv it y.1 e legal basis,
* Elise Muir is a n Assistant Professor at the Law Fac ulty of Maastricht Universit y. Please note that a n
earlier dra of this paper was presented at t he UACES congres s held at the College of Europe (Bruges
Campus) in Septemb er 2010.
1 E.g. Chapter IV on the R ight of Permanent Residence and A rticle 24 of Directi ve 2004/38 on the right
of citizens of the Union a nd their family memb ers to move and reside freely with in the territory of the
Member States, [200 4] OJ L 158/77.
Enhancing t he Protection of  ird-C ountry Nationals A gainst Discri mination
18 MJ 1–2 (2011) 137
Article 19 TFEU, inserte d in the Treaty Establishing the Europea n Community in 1997
also allowed for the adoption of Direc tives prohibiting discr imination on the grounds
of race/ethnic origin, dis ability, sexual orientation, age or religion/belief in employment
and – sometimes – beyond .2 In addition, the material scope of the age-old prohibition of
sex discrimi nation was enlarged to cover access to goods and services.3 e Court was
quick to provide an extensive readi ng of these new instruments.4
ere are numerous reasons to welcome this ex pansion,5 the main one being that it
carries wit h it the corresponding duty for decision-makers to reason thei r choices on the
basis of objective criteria when they act within t he scope of EU law. Precisely because
rational decision-making a nd the combat against prejudices in the EU is natural ly
welcome, it is striking to observe that third-country nationals are in several ways
excluded from the full bene t of the var ious EU prohibitions of discrim ination, despite
the fact that their s tatus and rights fall in many respec ts within the scope of EU law.6
Non-discrimination and migration constitute two areas of EU law and policy that
have evolved greatly since the entry into force of the Amsterdam Treaty in 1999.  e
two  elds ensue from distinct provisions of the Treaties (now TEU and TFEU) and are
moved by separate dynamics. Both are nevertheless of particular relevance to third-
country nationals whose status, mobility and integration may depend highly on EU
migration law and the EU prohibition of discrimination. In between these two  elds
of EU law, there exists a grey zone that remains insu ciently explored by the Eu ropean
legislature and judiciar y.7 is grey zone constitutes a challenge for the coherence of EU
anti-discrim ination law. It tests its main rationale and the soundness of t he relevant legal
e principles of non-discrimination meet with the speci c status of third-country
nationals in two prongs of EU law. Firstly, EU legislation puts into e ect the principle of
equal treatment by prohibiting di scrimination on the grounds of sex, race/eth nic origin,
2 Council Direct ive 2000/43/EC of 29 June 200 0 implementing the principle of e qual treatment bet ween
persons irresp ective of racia l or ethnic or igin, [2000] OJ L 180/22 (Rac e Directive) and Cou ncil Direct ive
2000/78/EC of 27 November 2 000 establi shing a general fr amework for equal treat ment in employment
and occupation, [200 0] OJ L 303/16 (Framework Equality Direc tive).
3 Council Direct ive 2004/113/EC of 13 December 2004 implementi ng the principle of equal treat ment
between men and women i n the access to and supply of good s and services, [200 4] OJ L 373/37.
4 E.g. Case 54/07 Feryn [2008] ECR I-05187; Case 144/04 Mangold [2005] ECR I-09 981. Please note that
the Court ha s been critici zed for its lack of  exibility i n other cases, s ee for example: Wadding ton,
‘Annotation on Case C-13/05 Chacón Navas’, 44 CMLR 2 (2007), p. 487.
5 ere are also reasons to be concerned a bout the actual e xpansion process but t his would be beyond the
scope of this cont ribution.
6 is contribution focuses on those t hird-country nat ionals whose status i s ‘positively’ regul ated by EU
law (i.e. legal migra nts).
7 For interesting ana lyses by academics see Hepple, ‘Ra ce and Law in Fortress Europe’, 67 Mode rn Law
Review 1 (2004), p. 1; de Schutter, ‘Links b etween migrat ion and discri mination’, December 200 9, www.
migpolgroup.com/publ ic/docs/166.LinksbtwMig ratio&Discrimi nation_thematicrep ort_02.12.09.pdf
(last visite d 29 April 2011); Díaz Crego, ‘El derecho a no ser discri minado por razón de naciona lidad:
¿un derecho de los extr anjeros?’, 89 Revista Espaňol a de Derecho Constit utional (2010), p. 115.

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