EU Citizenship, Federalism and the Three Different Faces of Reverse Discrimination

Van Den Brink, Martijn (2015) EU Citizenship, Federalism and the Three Different Faces of Reverse Discrimination. [Conference Proceedings] (Unpublished)

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Abstract

Introduction: Despite the abundant literature on reverse discrimination, our understanding can and must be refined. By and large, my argument differs in three respects from currently prevailing ideas. Most importantly, we need to come to realise that we have used one term – reverse discrimination – to describe three different phenomena. This conceptual confusion has blurred our understanding of reverse discrimination. There are three different causes of reverse discrimination, which need to be described and examined separately. The widely ignored distinction between different forms of reverse discrimination has produced too categorical normative views, either defending or dismissing reverse discrimination in its entirety. Instead, we must come to the conclusion that not every form of reverse discrimination is incompatible with equal EU citizenship (section 4). Secondly, those instances of reverse discrimination that are problematic also require a different solution than those generally brought forward in the literature. Instead of harmonising the law through the case law of the ECJ, thereby creating uniform rules for all, the Court should guarantee equal treatment of EU citizens within their Member State of residence (section 3). Thirdly, and following from the above arguments, we should also depart from the idea that reverse discrimination and the purely internal rule are so intimately related that one’s view of reverse discrimination should inevitably affects one’s opinion on purely internal situations, or vice versa. It is argued here that the purely internal rule is the logical consequence of the federal balance of powers within the EU. However, notwithstanding this, not every form of reverse discrimination is justified (section 1). In addition to explaining these three differences, section 2 will provide an overview of the state of the debate.

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