Reverse discrimination in the European Union : a recurring balancing act / Valérie Verbist.
2017
KJE5142 .V47 2017 (Map It)
Available at Cellar
Formats
| Format | |
|---|---|
| BibTeX | |
| MARCXML | |
| TextMARC | |
| MARC | |
| DublinCore | |
| EndNote | |
| NLM | |
| RefWorks | |
| RIS |
Items
Details
Author
Title
Reverse discrimination in the European Union : a recurring balancing act / Valérie Verbist.
Published
Cambridge : Intersentia, [2017]
Printed
Portland, OR : International Specialized Book Services, [date of distribution not identified]
Copyright
©2017
Call Number
KJE5142 .V47 2017
ISBN
9781780684581 (paperback)
1780684584 (paperback)
1780684584 (paperback)
Description
xxii, 357 pages ; 24 cm.
System Control No.
(OCoLC)971242518
Summary
"The issue of 'reverse discrimination' is a topical subject, particularly in the field of family reunification. Reverse discrimination occurs when a European Union (EU) citizen in a 'purely internal situation' is treated less favourably than an EU citizen of another nationality whose situation is largely governed by EU law. Reverse Discrimination in the European Union offers an up-to-date standard reference work on reverse discrimination. Part I of this book analyses the issue of reverse discrimination from an EU perspective. In particular, it questions whether reverse discrimination falls within the scope of application of Member State law or whether it falls within the ambit of EU law. Subsequently, it discusses the interpretation of the 'purely internal situation' doctrine on the basis of the case law of the European Court of Justice, giving special attention to recent developments since the controversial Ruiz Zambrano judgment. Although reverse discrimination is of interest from the perspective of the Member States, it is still mostly studied from the viewpoint of the EU. To address this, Part II looks at reverse discrimination in five Member States, namely Belgium, France, Italy, Germany and Austria. The focus lies on the ground(s) on which the national authorities decide whether or not to allow stricter treatment of purely internal situations. Finally, Part III analyses specific instances of reverse discrimination in federally structured Member States, from the perspective of both EU law and Belgian and German law."--Back cover.
Note
"This book arises out of my PhD thesis written at the KU Leuven."--Page v.
Bibliography, etc. Note
Includes bibliographical references (pages 351-357).
Record Appears in
Gift
Purchased from the income of the Soll Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Soll Fund
Table of Contents
Acknowledgements
xvii
Table of Cases of the European Court of Justice
xvii
ch. 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.
Concept of Reverse Discrimination
3
1.2.1.1.
Unexpected Group is Discriminated Against
3
1.2.1.2.
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
ch. 2
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.
Early Case Law on Purely Internal Situations
21
1.1.1.
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.
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.
General Prohibition on Reverse Discrimination at the Union Level is Unnecessary and Undesirable
43
3.3.
Interpretation of the Purely Internal Situation Rule
46
ch. 3
Applicability and Interpretation of the Purely Internal Situation Doctrine
47
1.
Applicability of the Purely Internal Situation Doctrine
48
1.1.
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.
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.
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.
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.
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.
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.
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.
Evolution from Compensation to Overcompensation by Union Law in the Area of Family Reunification
171
Part II. Reverse Discrimination From National Perspectives
ch. 4
Reverse Discrimination with Respect to Goods
183
1.
Assessment by National Courts of Reverse Discrimination with Respect to Goods
184
1.1.
French Council of State on Ethyl Alcohol
184
1.2.
French Court of Cassation on Emmenthal
186
1.3.
German Federal Administrative Court on the Purity Requirement for Beer
188
1.4.
Italian Constitutional Court on Dried Pasta
191
2.
Reverse Discrimination of Goods: Rare Cases?
194
ch. 5
Reverse Discrimination of Persons
197
1.
Classic Economic Free Movement Rights of Persons
197
1.1.
Professional Qualifications
198
1.1.1.
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.
French Council of State on Tourist Guides and Architects
200
1.1.2.1.
French Council of State on Proof of Good Behaviour for Tourist Guides
200
1.1.2.2.
French Council of State on the Restoration of Classified Historic Monuments by a Specific Type of Architect
202
1.1.2.3.
French Council of State on Attestation of Professional Qualifications for Tourist Guides
205
1.1.3.
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.
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.
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.
Judgments of the Belgian Constitutional Court of 26 September 2013
239
2.4.2.5.
Constitutional Court's Judgments of 26 September 2013: Analysis
241
2.5.
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.
Italian Council of State Regarding Family Reunification
251
2.5.2.
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
ch. 6
Union Perspective on Reverse Discrimination in a Federal State Context
267
1.
Status of Regions from a Union Perspective
267
1.1.
ECJ's Case Law on the Internal Division of Competences within a Member State
267
1.1.1.
Autonomy of the Member States in the Allocation of Internal Powers
267
1.1.2.
ECJ Does Not Accept Hiding behind Domestic Rules on State Structure
268
1.2.
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.
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.
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
ch. 7
National Perspectives on Reverse Discrimination in a Federal State Context
303
1.
National Rules on the Internal Division of Competences
304
1.1.
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.
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
ch. 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.
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.
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.
Solution at Union Level
346
3.2.4.2.
Solution at National Level
348
Bibliography
351