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Foster: EU Law Directions

Chapter 13

1. What is meant by 'reverse discrimination'?

This is where the application of Community law has the effect of producing reverse discrimination against nationals of member states when compared to EU nationals who have moved to a host member state and can benefit from EC law. For example, where strict professional rules continue to apply to nationals established and providing services but which are held by the Court of Justice not to be suitable or appropriate to apply to EC professionals providing services temporarily in the host state.

2. What is the 'wholly internal rule'?

Community law will not apply when a situation is regarded as being wholly within the internal legal competence of a member state, where for example, there is no movement across an EU border, thus, there is no reason why EC law rights are triggered.

3. Is European Citizenship to be equated with European nationality?

No, European Citizenship is intended by the member states to complement and not replace national citizenship and can only be determined as the collective definition of citizenship from all of the member states. If a person is a national of a member state, then Articles 17 and 18 apply.

4. It seems, following the case law on citizenship, that it is no longer necessary to actively engage in an economic activity to trigger valuable EU law rights. What will now trigger those rights?

Where citizenship rights are established through lawful residence, Article 12 EC applies and if an EU citizen is lawfully resident in another member state, there is no requirement to be economically active to be entitled to equal treatment including for example, equal treatment in non-contributory welfare benefits on the same basis as nationals. It is even possible to be a burden on the state, albeit a reasonable one only as in Grzelczyk. Hence then, lawful residence and citizenship appear to be the main criteria needed to trigger other rights under Community law.