Now also available as
The spectre of reverse discrimination arises when it can be shown
that a group is treated more favourably than another group that is normally
favoured, as a consequence of positive action measures. Until recently, EC
jurisprudence has consistently rejected allegations that reverse
discrimination emerging in the context of the Community’s internal market
policy is an EC problem, reinforcing its commitment to ‘positive action’ as a
facilitator of cross-border economic activities. However, with the advent of
EU citizenship (in terms of persons) and the formal completion of the internal
market (in terms of trade), it is now possible to meaningfully ask: Is reverse
discrimination still a permissible form of differential treatment in the
Community? Or should it now be considered, first, an unjustified difference in
treatment between Union citizens (and thus a violation of the general
principle of equality), and, second, an unacceptable distortion of the
conditions of competition in a properly-functioning market?
This important new book opens with an in-depth analysis of the ‘linking
factor’ test that has implicitly been developed by the European Courts for
determining whether a situation is purely internal to a Member State or
whether it qualifies for EC protection. There is a detailed explanation of how
the Court has traditionally applied this test in its case-law (e.g. in family
reunification and educational qualification cases), and of the problems
emerging from the application of this test. A presentation of the Court’s
formal stance on reverse discrimination is also provided. With detailed
reference to the case-law of the European Community Courts (including selected
jurisprudence of national courts), the author shows how recent developments in
internal market law have already affected the Court’s traditional stance
towards purely internal situations and reverse discrimination, and that these
developments can now be used in support of the argument that reverse
discrimination is an incongruity in the contemporary EC.
Then, the author provides an in-depth analysis of two of the post-Maastricht
developments in the context of free movement: the establishment of the status
of Union citizenship by the Treaty of Maastricht in 1993 and the development
of that status through the Court's recent jurisprudence; and the formal
completion of the internal market in 1993, as required by the provisions
inserted into the EC Treaty by the Single European Act. Focusing on the
central issue of whether reverse discrimination is – and should remain –
outside the scope of EC law, the author explains what has been the impact of
each of these developments on the question of the permissibility of reverse
discrimination in EC law.
A brief discussion of the available solutions to the problem and their
advantages and disadvantages concludes the presentation.
This is a ground-breaking study in an area of European law that has received
scant academic attention so far and is just beginning to be explored. In it,
scholars, policymakers and practitioners will discover a firm foundation from
which to pursue and ultimately define the limits of reverse discrimination in
Acknowledgements. List of Abbreviations. 1. Introduction.
Part I: The Court’s Traditional and New
Approaches to Purely Internal Situations. 2. The Traditional Approach of
the Court. 3. The Court’s New Approaches to a Link with EC Law:
Responding to the Problems of the Traditional Approach.
Part II: Reverse Discrimination as an Incongruity in
the Contemporary EC. 4. Reverse Discrimination and the Free Movement of
Persons: An Incongruity in a Citizens’ Europe. 5. Reverse
Discrimination and EC Trade: An Incongruity in a Genuine Internal Market. 6.
Conclusion. List of References. Table of Cases and Secondary Legislation.
Table of Treaty Articles. Index.