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!