The Outer Limits of the Prohibition of Discrimination on Grounds of Nationality: A Look through the Lens of Union Citizenship
| Author | Anne Pieter van der Mei |
| DOI | 10.1177/1023263X1101800104 |
| Date | 01 March 2011 |
| Published date | 01 March 2011 |
| Subject Matter | Article |
62 18 MJ 1–2 (2011)
THE OUTER LIMITS OF THE PROHIBITION
OF DISCRIMINATION ON GROUNDS
OF NATIONALITY: A LOOK THROUGH
THE LENS OF UNION CITIZENSHIP
A P M*
ABSTRACT
is contribution analyses the outer limit s of the EU prohibition of discrimination on the
grounds of nationality. e rst part considers the case law of the Court of Justice on the
substantive scope of the prohibition in cross-border situation s. It demonstrates that the
mere possession of Union citizenship plus the presence of a cross-border element su ces
for equality of treatment in relation to any substantive right or bene t to the exclusion
of arguably none. e right to equal treatment regardless of nationality is no longer
functionally related to freedom of movement but a basic ingredient of Union citizenship.
i s, however, as the second part of the contribution argues , does not imply that the second
outer limit, id est the non-application of th e ban on nationality discrimination in internal
situations, has lost l egal signi cance. Union citizenship, and more generally EU law, do not
ensure abolition of so-called ‘re verse discrimination’.
Keywords: funda mental rights; internal situation; nationalit y discrimination; reverse
discriminat ion; Union citizenship
§1. I N TRODUC TION
In EU law the general principle of equal ity manifests itself foremost in the negative and
mult iple form s of prohi bitions of disc rimin ation on speci c grou nds. e list of ‘suspect ’
grounds for di erent ial tre atment is well-kno wn: nati onalit y, sex, rac ial or et hnic or igin,
religion or belief, disabilit y, age and sexual orientation. Each of t hese prohibitions has
* Assistant Profe ssor of European Law, Maastr icht University.
e Outer Limits of t he Prohibition of Discrim ination on Grounds of Nationa lity
18 MJ 1–2 (2011) 63
its own constitutional a nd societal releva nce. Formally none of these ranks higher t han
another.
Nonetheless, there is one that stands out: the ban on nationality discrimination.1 It
is the only one that was a lready enshrined in the 1951 Treaty establishing the Europea n
Coal and Steel Community2 and it is this prohibition that has been most instrumental
to the overall integr ation process. e obl igation n ot to disc rimina te again st nation als of
other Member States constitutes the rock on which the internal ma rket is built, fosters
the notion of an ‘ever closer union among the peoples of Europe’3 a nd forms the very
heart of Union citizen ship.4 Without the prohibition to discriminate on grounds of race ,
gender, age and so on, the EU no doubt would have a less social, human and digni ed
face. Without the prohibition of nationality discrimination however, the EU would
probably not even exist or survive. For t he EU, that prohibition has both f unctional and
foundational or existentia l value.
In spite of the above, and notwithstanding the fact t hat Article 18 TFEU stipulates
that ‘any d iscrimina tion on grounds of nat ionality’ i s prohibited, EU law doe s not object
to any di erential treatment of ‘own’ nationals and other Member States’ nat ionals. e
ban on nationality dis crimination has its outer and inner limits. e former i nvolve the
reach of its application. e non-discrimination rule does not always apply. It only does
so ‘within t he scope of application of the Treaties’.5 Two outer limits can be identi ed.
e rst concerns the reach of the right to equa l treatment of Member State nationals
who nd themselves i n a cross-border situation. Member State nationals who travel to
or reside in another Member State are entitled to b e treated equally with national s of the
host state but, as especially Member States have argued,6 not necessarily as rega rds any
right or bene t. e second outer li mit involves the non-application of EU law, and thus
1 e prohibit ion of discriminati on on the grounds of national ity ‘is a speci c expression of t he general
principle of equa lity, which itself is one of the f undamental pri nciples of Community law ’. Case 810/79
Überschär [1980] ECR 2747, para. 16; Case C-224/00 Commission v. Italy [20 02] ECR I-2965, para. 14
2 Article 69 of the Treaty est ablishing the Europ ean Coal and Steel C ommunity (ECSC Treaty).
3 See the Opinion of Advocat e General Jacobs in Joined Cases C -92/92 and C-326/92 Phil Collins and
Others [1993] ECR I-5145, para. 11 (the prohibition of d iscrimination on the grou nds of nationalit y
demonstrates t hat the Union is ‘not just a commercial arra ngement between the governments of the
Member States but is a common e nterprise in which al l the citizens of Europ e are able to participate a s
individua ls. No other aspect of Commun ity law touches the individu al more directly or does more to
foster that sense of c ommon identity and shared des tiny without which the “ever clo ser union among
the peoples of Europe”, […] would be an empty sloga n.’).
4 See Opinion of Advocate Gener al Jacobs in Case C -274/96 Bickel [1998] ECR I-7637, para. 24 (‘Freedom
from discri mination on grounds of nationa lity is the most fund amental right conferre d by the Treaty
and must be seen as a ba sic ingredient of Union citiz enship’).
5 See Article 18 Treaty on the Func tioning of th e European Union (Consolid ated Version) [2008] OJ
C 115/13 (TFEU). Compare also Ar ticle 21(2) of the Charter of Fu ndamental Rights of the E uropean
Union [2010] OJ C 83/389. e principle also applies wit hin the scope of the Treaty establis hing the
6 See §2.
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