Fundamental Rights and Reverse Discrimination

Maas, Wilhelm (2011) Fundamental Rights and Reverse Discrimination. [Conference Proceedings] (Unpublished)

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Abstract

Reverse discrimination – whereby member states may treat their own nationals worse than nationals of other member states by invoking a “purely internal situation” in which European law does not apply – has long been a problem within the European Economic Community turned European Union. Using as a touchstone the Zambrano case, to be decided shortly, this paper argues that introducing citizenship alters the status of individuals vis-à-vis their governments, implies equality of treatment among citizens, and should eliminate reverse discrimination. Raising examples from the United States and Canada, I show how the introduction of federal rights empowered individuals and redrew the relationship between the governments of the center and the units. Citizenship limits the power of member states to treat their own nationals worse than nationals of other member states. This does not eliminate the tension between center and unit (or federal and regional; EU and member state) law but should give extra weight to former over the latter. Jurisdictional issues remain, but the rise of Union citizenship means that EU law should grow to encompass any right protected or promoted by shared citizenship.

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