Transcript Title

Reverse Discrimination
Heidi Myllys
University of Turku
16.09.2011
Reverse discrimination
●
●
●
A link between EU law and the situation of a
static citizen is missing → National law
applies, often more restrictive
Two cases might have very similar facts but
fall under different rules
ECJ in case C-184/99, Grzelczyk: “Union
citizenship is destined to be the fundamental
status of nationals of the Member States,
enabling those who find themselves in the same
situation to enjoy the same treatment in law
irrespective of their nationality”
Example situation:
Family reunification
●
●
Family reunification when the family member
is a third country national (TCN): the
possibility for an EU-citizen to lead a normal
family life is at stake
Linking family reunification with free
movement
●
●
European Citizenship Directive 2004/38 → case-law
expands the scope of application
Enabling free movement or securing the right
to respect for family life?
Case C-34/09, Ruiz Zambrano
●
●
●
TCN parents of (static) union citizen
children have the right to reside and
work in the Member State of residence
and nationality of those children
Directive 2004/38 inapplicable, but:
“Article 20 TFEU precludes national
measures which have the effect of
depriving citizens of the Union of the
genuine enjoyment of the substance of
the rights conferred by virtue of their
status as citizens of the Union”
What was left open in
Zambrano?
●
●
●
●
Is the purely internal matters doctrine now
abolished?
What is included in the substance of the rights
attached to the status of European Union
citizen?
What is being protected: the potential use of
freedom of movement, the right to reside
freely or the family life?
Would it make a difference if the EU citizens in
the case were not children?
Case C-434/09, McCarthy
●
●
●
Dual nationality per se does not lead to
automatic enjoyment of free movement rights
Purely internal matters -rule considered as
settled case-law, but now modified
Mrs. McCarthy's chances to enjoy the rights
associated with her status as a Union citizen, or
the exercise of her right to move and reside
freely within the territory of the Member States
were not in jeopardy (!)
What was left open in McCarthy?
●
●
●
Why was the decision based on art. 21 TFEU
instead of art. 20 TFEU like in Ruiz Zambrano?
Did the fact that Mrs McCarthy wasn't
economically active affect the decision?
Why is family reunification considered
extremely important in full enjoyment of
freedom of movement but not in full enjoyment
of citizenship rights?
Conclusions
●
●
Purely internal situations still exist, and
so the problem of reverse discrimination
persists
Significant tool for further development
has been created:
●
●
Genuine enjoyment of the substance of rights
associated with the status as European union
citizen
Future decisions will show which rights
are attached directly to EU citizenship!