Table of Contents

Acknowledgements - v
Table of Cases of the European Court of Justice - xvii
Chapter 1. Introduction - 1
1. Problem Definition: Discrimination and Reverse Discrimination - 1
1.1. Equality and Non-Discrimination - 1
1.2. Reverse Discrimination - 3
1.2.1. The Concept of Reverse Discrimination - 3
1.2.1.1. Unexpected Group is Discriminated Against - 3
1.2.1.2. The Origins of Reverse Discrimination - 4
1.2.1.3. Purely Internal Situations versus Situations with a Connection with Union Law - 5
1.2.1.4. Examples of Reverse Discrimination - 6
1.2.2. Terminology - 8
1.2.2.1. Reverse Discrimination and Positive Action - 9
1.2.2.2. Renaming Reverse Discrimination? - 10
2. Research Aim - 10
2.1. Research Questions - 10
2.2. Delineating the Scope of Research - 11
2.3. Added Value to Previous Literature - 12
3. Methodology - 13
4. Structure - 15
4.1. Reverse Discrimination from a Union Law Perspective (Part I) - 15
4.2. Reverse Discrimination from a Variety of National Perspectives (Part II) - 16
4.3. Reverse Discrimination in a Federal State Context (Part III) - 16
PART I. REVERSE DISCRIMINATION FROM A UNION PERSPECTIVE
Chapter 2. The European Court of Justice’s Approach to Reverse Discrimination - 21
1. ECJ’s Traditional Approach: Reverse Discrimination is Not Prohibited by Union Law - 21
1.1. The Early Case Law on Purely Internal Situations - 21
1.1.1. The Notion of a `Purely Internal Situation’ - 21
1.1.2. Definition of a `Purely Internal Situation’ - 22
1.1.3. Justification Put Forward by the ECJ for the Purely Internal Situation Rule - 23
1.2. Reverse Discrimination is not Prohibited by Union Law - 25
1.2.1. Purely Internal Situations Outside the Scope of Union Law – Reverse Discrimination Not Prohibited by Union Law - 25
1.2.2. Reverse Discrimination Should be Addressed at the National Level - 27
1.2.3. Confirmation of the ECJ’s Traditional Approach on Reverse Discrimination Following the Introduction of Union Citizenship - 28
2. Proposals to Address Reverse Discrimination at Union Level - 30
2.1. In the Light of the Common and Internal Market - 30
2.2. In the Light of Freedom of Movement for Persons and Union Citizenship - 32
2.2.1. In the Light of Union Citizenship and EU Fundamental Rights Protection - 32
2.2.2. Reverse Discrimination Incompatible with the Union Principle of Equality - 33
3. The ECJ’s Traditional Approach Towards Reverse Discrimination Remains Valid - 38
3.1. Reverse Discrimination as a Side Effect of the Limited Scope of Application of Union Law - 39
3.2. A General Prohibition on Reverse Discrimination at the Union Level is Unnecessary and Undesirable - 43
3.3. Interpretation of the Purely Internal Situation Rule - 46
Chapter 3. Applicability and Interpretation of the Purely Internal Situation Doctrine - 47
1. Applicablity of the Purely Internal Situation Doctrine - 48
1.1. The Purely Internal Situation Doctrine is Applicable to Treaty Provisions on Free Movement and Citizenship - 48
1.2. Refinements of, and Exceptions to, the Purely Internal Situation Doctrine - 48
1.2.1. Harmonisation of National Laws: No Need for the Purely Internal Situation Doctrine - 49
1.2.1.1. No Application of the Purely Internal Situation Doctrine in the Case of Harmonisation of National Laws - 49
1.2.1.2. Not all Forms of Harmonisation Exclude Application of the Purely Internal Situation Doctrine: Minimum Harmonisation with a Market Access Clause - 51
1.2.2. Internal Tariff Barriers: An Exception to the Purely Internal Situation Rule - 53
1.2.2.1. An Overview of the ECJ’s Case Law on Internal Tariff Barriers - 53
1.2.2.2. Divergent Opinions on the ECJ’s Cases on Internal Tariff Barriers - 56
1.2.3. Guimont Line of Cases: Indirect Exceptions to the Purely Internal Situation Rule via Article 267 TFEU - 60
1.2.3.1. Dzodzi and Guimont Line of Cases - 60
1.2.3.2. Criticising the Justifications Put Forward in the Dzodzi and Guimont Line of Cases - 63
1.2.3.3. ECJ Puts `Limited’ Limits on the Guimont Line of Cases - 65
2. The Purely Internal Situation versus Sufficient Connection with Union Law - 68
2.1. Traditional Interpretation of Sufficient Link with Union Law: Cross-Border Element as Actual Movement between Member States - 69
2.1.1. Treaty Provisions on the Freedom of Movement - 69
2.1.1.1. Treaty Provisions on Freedom of Movement: Cross-Border Element and Economic Activity - 69
2.1.1.2. Having Exercised His or Her Right of Free Movement - 70
2.1.2. Treaty Provisions on Union Citizenship - 71
2.1.2.1. Treaty Provisions on Union Citizenship: Cross-Border Element - 71
2.1.2.2. Justifications for the ECJ’s Application of the Purely Internal Situation Doctrine to the Treaty Provisions on Union Citizenship - 75
2.2. Ever More Generous Interpretation of a Sufficient Connection with Union Law by the ECJ? - 79
2.2.1. As a Preliminary Remark: Criteria of Evaluation - 80
2.2.2. Precise Indications on How Much Movement and (Re)introduction of Causal Link - 81
2.2.2.1. Sufficient Connection with Union Law: How Much `Movement’ is Necessary? - 82
2.2.2.2. Causal Link Between the Exercise of Free Movement and the Right Protected by Union Law - 84
2.2.3. The ECJ’s Restrictions Approach - 86
2.2.3.1. Dassonville Case Law in the Area of Free Movement of Goods - 86
2.2.3.2. Extension of Restrictions Approach to Free Movement of Workers, Services and Establishment and to Union Citizenship - 88
2.2.3.3. Risks Implied in the Restrictions Approach – Confining the Concept of Restriction - 93
2.2.4. Stretching the Notion of Movement - 99
2.2.4.1. `Returning Citizens’: Moving Back to Home Member State after Residing and Working in Another Member State - 100
2.2.4.2. Residing in Another Member State - 106
2.2.4.3. Exercise of Free Movement without Moving Residence - 114
2.2.4.4. Abuse of Union Law: A Stricter Notion of Movement and Real Causal Link - 124
2.2.5. Reducing the Importance of Movement in the Light of Union Citizenship - 128
2.2.5.1. External Element Other than Movement between Member States: Nationality of One Member State and Resident in Another Member State - 128
2.2.5.2. Intrinsic Connection with Union Law Introduced in Rottmann and Ruiz Zambrano - 135
2.2.5.3. In the Aftermath of Ruiz Zambrano - 138
2.2.5.4. The Clear Impact of Union Citizenship on the Connection Required with Union Law – Recent Limits - 153
Conclusion Part I - 157
1. Reverse Discrimination as a Side Effect of the Scope of Application of Union Law - 157
2. The ECJ’s Interpretation of a Purely Internal Situation - 158
3. Distinguishing Problematic and Unproblematic Cases of Reverse Discrimination – Redefining the Scope of Application of Union Law - 160
3.1. Proposals in Literature Distinguishing Problematic Cases from Unproblematic Cases of Reverse Discrimination - 160
3.2. Redefining the Scope of Application of the Treaty Provisions on Free Movement and Citizenship - 164
3.3. Working Hypothesis Based on Compensation/Overcompensation by Union Law - 166
3.3.1. The Distinction between Compensation and Overcompensation by Union Law - 166
3.3.2. Interpretation of `(Over)Compensation’ and `Disadvantage Resulting from Exercise of Free Movement’ - 168
3.3.3. Illustration: Reverse Discrimination in the Area of Family Reunification - 170
3.3.3.1. Family Reunification Directive 2003/86 and Citizenship Directive 2004/38 - 170
3.3.3.2. The Evolution from Compensation to Overcompensation by Union Law in the Area of Family Reunification - 171
PART II. REVERSE DISCRIMINATION FROM NATIONAL PERSPECTIVES
Chapter 4. Reverse Discrimination with Respect to Goods - 183
1. Assessment by National Courts of Reverse Discrimination with Respect to Goods - 184
1.1. The French Council of State on Ethyl Alcohol - 184
1.2. The French Court of Cassation on Emmenthal - 186
1.3. The German Federal Administrative Court on the Purity Requirement for Beer - 188
1.4. The Italian Constitutional Court on Dried Pasta - 191
2. Reverse Discrimination of Goods: Rare Cases? - 194
Chapter 5. Reverse Discrimination of Persons - 197
1. Classic Economic Free Movement Rights of Persons - 197
1.1. Professional Qualifications - 198
1.1.1. The Austrian Constitutional Court on the Exemption from Proof of Qualification on the Basis of Previous Professional Activity in Another EEA Member State - 198
1.1.2. The French Council of State on Tourist Guides and Architects - 200
1.1.2.1. The French Council of State on Proof of Good Behaviour for Tourist Guides - 200
1.1.2.2. The French Council of State on the Restoration of Classified Historic Monuments by a Specific Type of Architect - 202
1.1.2.3. The French Council of State on Attestation of Professional Qualifications for Tourist Guides - 205
1.1.3. The German Federal Constitutional Court on Skilled Trades Order - 206
1.1.4. Intermezzo: Compensation by Union Law: Assessment of a Purely Internal Situation in the Light of National Law, but Union Rules May be Inspiration - 211
1.2. Acquiring Immovable Property: The Austrian Constitutional Court - 214
1.3. Employment Conditions - 216
1.3.1. Wage-Setting Mechanisms: Changing Approach of the French Court of Cassation’s Social Chamber - 216
1.3.2. Duration of Contracts: Extensive Interpretation of Link with Union Law by the Italian Constitutional Court - 219
2. Family Reunification with a Union Citizen - 223
2.1. Introduction - 223
2.2. Family Reunification: An Emotive and Politically Sensitive Subject - 224
2.3. Incomparable Situations According to French and German Courts - 225
2.3.1. The French Council of State on Family Reunification - 225
2.3.2. German Administrative Courts on Family Reunification - 226
2.3.2.1. Administrative Appeal Court of Hesse 2006 - 226
2.3.2.2. German Federal Administrative Court 2011- 228
2.3.2.3. Division of Competences Precedes Assessment in the Light of the Principle of Equality - 230
2.4. A Change of Approach in Austria and Belgium - 231
2.4.1. Developments in Austrian Legislation on Family Reunification - 231
2.4.1.1. Austrian Constitutional Court in 1997: Difference in Treatment is Discriminatory - 231
2.4.1.2. Austrian Constitutional Court in 2009: Autonomy of National Legislator to Treat Purely Internal Situations Differently - 232
2.4.2. Developments in Belgian Legislation on Family Reunification - 234
2.4.2.1. Autonomous Legislative Alignment in the Area of Family Reunification - 234
2.4.2.2. Intermezzo: Problems Concerning the Scope and Interpretation of Autonomously Aligned Legislation - 236
2.4.2.3. Introduction of Reverse Discrimination in the Field of Family Reunification in 2011 - 237
2.4.2.4. The Judgments of the Belgian Constitutional Court of 26 September 2013 - 239
2.4.2.5. The Constitutional Court’s Judgments of 26 September 2013: Analysis - 241
2.5. The Unique Italian Position: From a Prohibition on Reverse Discrimination in the Area of Family Reunification to a General Prohibition on Reverse Discrimination - 251
2.5.1. The Italian Council of State Regarding Family Reunification - 251
2.5.2. The Italian Legislator: Autonomous Alignment - 252
2.5.2.1. Legislative Autonomous Alignment in Family Reunification - 252
2.5.2.2. General Legislative Autonomous Alignment - 253
2.5.2.3. Extensive Implications of General Legislative Autonomous Alignment - 254
Conclusion Part II - 257
1. Conclusion by Area? - 257
2. Application of the Working Hypothesis to the National Level - 258
2.1. Interpretation of Compensation and Overcompensation at National Level - 258
2.2. National Assessment in Cases of Compensation by Union Law - 258
2.3. National Assessment in Cases of Overcompensation by Union Law - 259
3. Evaluation of the Application of the Working Hypothesis to the National Level - 260
3.1. Putting of Compensation and Overcompensation in Practice at National Level - 260
3.2. Alternatives to the Application of the Working Hypothesis at National Level - 262
4. Some Final Thoughts on Addressing Reverse Discrimination at the National Level - 264
PART III. REVERSE DISCRIMINATION IN A FEDERAL STATE CONTEXT
Chapter 6. Union Perspective on Reverse Discrimination in a Federal State Context - 267
1. The Status of Regions from a Union Perspective - 267
1.1. The ECJ’s Case Law on the Internal Division of Competences within a Member State - 267
1.1.1. The Autonomy of the Member States in the Allocation of Internal Powers - 267
1.1.2. The ECJ Does Not Accept Hiding behind Domestic Rules on State Structure - 268
1.2. The Status of Regions in the Treaties - 270
2. ECJ’s Case Law on Reverse Discrimination in a Federal State Context - 272
2.1. Flemish Care Insurance Case: Specific Situation of Reverse Discrimination as a Direct Consequence of the Flemish Decree - 273
2.1.1. The ECJ’s Flemish Care Insurance Judgment - 275
2.1.2. Analysis of the ECJ’s Flemish Care Insurance Judgment - 276
2.2. Specific Situation of Reverse Discrimination as a Possible Consequence of the ECJ’s Las and Libert Judgments - 280
2.2.1. Las Case Regarding the Flemish Decree on Use of Languages - 280
2.2.1.1. ECJ’s Las Judgment - 280
2.2.1.2. Analysis of the ECJ’s Las Judgment - 282
2.2.2. Libert Case Regarding the Flemish Decree on `Living in Your Own Region’ - 283
2.2.2.1. ECJ’s Libert Judgment - 283
2.2.2.2. Analysis of the ECJ’s Libert Judgment - 286
2.3. ECJ’s Case Law on Specific Situations of Reverse Discrimination: Two Concluding Observations - 287
3. Recognition of the Autonomy of Regional Authorities by the ECJ in the Context of State Aid - 288
3.1. ECJ’s Judgments on State Aid Recognise the Autonomy of Infra-State Bodies - 288
3.1.1. ECJ’s Azores Judgment - 288
3.1.2. ECJ’s Trabajadores de la Rioja Judgment - 291
3.1.3. General Court’s Gibraltar v Commission judgment - 292
3.1.4. A Balancing Act in Cases on State Aid Involving Regional Authorities - 293
3.2. Does the ECJ Recognise the Autonomy of Regional Authorities in Other Areas as Well? - 294
3.2.1. Recognition of Regional Authorities for Implementation of Union Law: Horvath - 294
3.2.2. Recognition of Regional Authorities in the Assessment of Restrictions to Free Movement? - 297
3.2.2.1. AG Sharpston’s Proposal in the Flemish Care Insurance Case - 297
3.2.2.2. Possibility of Preventing Specific Situations of Reverse Discrimination at Union Level - 298
Chapter 7. National Perspectives on Reverse Discrimination in a Federal State Context - 303
1. National Rules on the Internal Division of Competences - 304
1.1. The Belgian Constitutional Court’s Judgment on the Flemish Care Insurance - 304
1.2. Analysis of the Belgian Constitutional Court’s Judgment on the Basis of the Internal Rules on Division of Competences - 306
2. Internal Free Movement - 309
2.1. Belgian Constitutional Court on the Belgian Economic and Monetary Union - 311
2.1.1. Belgian Constitutional Court’s Flemish Care Insurance Judgment – 311
2.1.2. Belgian Constitutional Court on Inheritance Tax - 313
2.2. Belgian Council of State on the Belgian Economic and Monetary Union - 315
2.2.1. Inheritance Tax for Legacies in Favour of the Bilingual Brussels-Capital Region - 316
2.2.2. Flemish Integration Policy – 317
2.2.3. Amendment of Decree on Use of Languages after the ECJ’s Las Judgment - 319
2.2.3.1. Council of State’s Opinion on Amendment of Decree on Use of Languages - 319
2.2.3.2. Comparison with the Belgian Constitutional Court’s Judgment on Family Reunification - 322
2.2.4. Freedom of Movement within the EU and Internal Free Movement Not Necessarily Convergent According to Belgian Case Law - 324
3. The Principle of Equality as Enshrined in National Law - 325
3.1. Belgian Constitutional Court - 325
3.1.1. Flemish Care Insurance Judgment: No Assessment in the Light of Articles 10 and 11 Belgian Constitution - 325
3.1.2. Belgian Constitutional Court Prevents Specific Reverse Discrimination in Land and Real Estate Policy - 328
3.2. German Federal Constitutional Court on University Tuition Fees - 329
Conclusion Part III - 333
1. Specific Situations of Reverse Discrimination from the Union Perspective - 333
2. Specific Situations of Reverse Discrimination from National Perspectives - 334
Chapter 8. Conclusion - 337
1. Reverse Discrimination as a Side Effect of the Scope of Application of Union Law - 337
1.1. Situations of Reverse Discrimination Fall within the Scope of Application of National Law - 337
1.2. The ECJ’s Interpretation of a Purely Internal Situation - 338
2. Diverging National Perspectives on Reverse Discrimination - 340
3. Distinguishing Problematic and Unproblematic Cases of Reverse Discrimination - 341
3.1. Redefining the Scope of Application of the Treaty Provisions on Free Movement and Citizenship - 341
3.2. Working Hypothesis Based on the Concept of (Over)Compensation by Union Law - 343
3.2.1. The Distinction Between Compensation and Overcompensation by Union Law - 343
3.2.2. Interpretation of `(Over)Compensation’ and `Disadvantage Resulting from Exercise of Free Movement’ - 344
3.2.3. Reverse Discrimination in Case of Mere Compensation by Union Law - 345
3.2.4. Reverse Discrimination in Case of Overcompensation by Union Law - 346
3.2.4.1. A Solution at Union Level - 346
3.2.4.2. A Solution at National Level - 348
Bibliography - 351