What can the Court’s response to reverse discrimination and purely internal situations contribute to our understanding of the relationship between the ‘restriction’ and ‘discrimination’ concepts in EU free movement law? Alina Tryfonidou∗ I. INTRODUCTION The concepts of ‘restriction’ and ‘discrimination’ are the soul and life of free movement law. These are the concepts that define the limits that are placed on the scope of application of the free movement provisions1 and, as such, are vitally important for determining what amounts to a violation of these provisions, what is included within their scope, and what should be excluded altogether from their ambit. These concepts are not monolithic, but their interpretation is constantly changing and adapting, making it hard for EU lawyers to reach a consensus as to their exact meaning,2 and even harder to agree on the exact relationship between the two. The confusion regarding the meaning of these concepts is further compounded by the different approaches to their interpretation that have been followed in the context of the various freedoms: in the 1980s and early 1990s, the scope of the free movement of goods provisions was drawn more broadly than that of the free movement of persons; a situation that was, nonetheless, reversed by the mid‐1990s.3 Yet, in recent years a tendency to adopt a common interpretation for these concepts can be discerned, this arguably implying a determination to embrace a position of convergence in the scope of application of the free movement provisions.4 This contribution will seek to analyse the notions of ‘discrimination’ and ‘restriction’ as applied in the context of EU free movement law, and to explore what is the relationship between the two. It will be argued that these concepts ∗
1 2 3 4 Lecturer and Deputy Director of the Centre for European Law and Integration (CELI), University of Leicester. IALS Visiting Fellow 2010‐11. The free movement provisions are: Articles 34 and 35 TFEU (goods); Article 45 TFEU (workers); Article 49 TFEU (establishment); Article 56 TFEU (services); Article 63 TFEU (capital); Article 21 TFEU (free movement of Union citizens). When reference needs to be made, only, to the economic free movement provisions (i.e. Articles 34, 35, 45, 49, 56 and 63 TFEU), the term ‘market freedoms’ will be used. Chris Hilson, for instance, has bemoaned the lack of a commonly agreed interpretation for, inter alia, the term ‘discrimination’ in the context of EU free movement law. See C. Hilson, ‘Discrimination in Community free movement law’, (1999) 24 ELRev. 445, at pp. 448‐451. M. Poiares Maduro, ‘Europe’s Social Self: “The Sickness Unto Death’ in J. Shaw (ed.), Social Law and Policy in an Evolving European Union, (Hart, 2000), at pp. 333‐334. For further elaboration see A. Tryfonidou, ‘Further steps on the road to convergence among the market freedoms’, (2010) 35 ELRev. 36. 1 are not independent of each other but are, rather, closely intertwined, being the two elements that define the scope of application of the Treaty’s free movement provisions. One, of course, might immediately point to the fact that an exploration of the meaning of these concepts is nowadays somewhat passé ‐ a topic that is now mainly left to be analysed in EU law textbooks.5 However, this contribution will purport to take a fresh approach to this issue. In particular, I will employ the research conducted on reverse discrimination and purely internal situations, and will use it as a lens through which to view and better understand the concepts of ‘discrimination’ and ‘restriction’ in the context of EU free movement law. Therefore, this contribution will seek to shed light on the interpretation of these concepts, as well as on the relationship between them, by reflecting on the Court’s treatment of, and response to, reverse discrimination and the doctrine of purely internal situations. This article is structured in four main sections: the first main section (II) will be devoted to an ‘unpacking’ exercise, through which the main terms under examination (i.e. ‘restriction’ and ‘discrimination’) will be discussed and, in particular, the definitions developed by the Court will be presented. This will be followed by a section (III) that will provide an explanation of reverse discrimination and the purely internal situations doctrine. Having disentangled the basics of reverse discrimination and the EU’s response to this issue as well as to the question of what qualifies as a purely internal situation, the third and fourth main sections (IV and V) will move on to explore the basic question of this contribution: what reverse discrimination and the Court’s treatment of purely internal situations can contribute to our understanding of the relationship between the concepts of ‘discrimination’ and ‘restriction’. 5 For comprehensive and lucid explanations see C. Barnard, The Substantive Law of the EU: The Four Freedoms (OUP, 2010), Chapters 4, 5 and 8‐12; D. Chalmers, G. Davies and G. Monti, European Union Law (CUP, 2010), Chapters 11 and 18‐20. 2 II. THE CONCEPTS OF ‘RESTRICTION’ AND ‘DISCRIMINATION’ IN EU FREE MOVEMENT LAW The market freedoms have, always, made reference to two concepts when defining what type of national measures are caught within their scope: ‘restriction’ and ‘discrimination’. Some of these provisions refer to only one of these terms,6 whereas the others make reference – or allude ‐ to both.7 On the other hand, the more recently added Article 21 TFEU (one of the citizenship provisions) only makes reference to a ‘right’ to move and reside freely in the territory of the Member States, possibly this illustrating a desire on the part of the Treaty drafters to highlight that the citizenship provisions are conceptually different from the market freedoms. The Court of Justice has, nonetheless, made it clear that all the free movement provisions (including Article 21 TFEU) catch national measures that are discriminatory and/or restrict free movement.8 Equality and the prohibition of discrimination, as its negative expression, are ‘universally recognised principles’9 and are, thus, not the exclusive purview of EU law. In fact, they were developed under international law and, in particular, in the context of human rights law, long before the EU was established. These principles have played a pivotal role in the development of EU law and have come to play an even more significant role in recent years, as essential elements of Union citizenship.10 They are enunciated in a number of provisions found in the FEU and EU Treaties11 that the Court has viewed as specific expressions of the general principle of equality, which, as it stressed, is one of the general principles of EU law.12 The general principle of equality or non‐discrimination requires comparable situations to be treated in the same way and different situations to be treated 6 7 8 9 10 11 12 See, for instance, Articles 34, 35 and 63 TFEU referring to ‘restrictions’ and Article 45 TFEU referring to ‘discrimination’. Note, also, that Article 18 TFEU prohibits discrimination on the grounds of nationality within the scope of application of the Treaties. Although this latter Article is not one of the free movement provisions, nonetheless it has sometimes been used in combination with one of the free movement provisions to prohibit a national measure which discriminated on the grounds of nationality against a migrant Member State national ‐ see, for example, Case 186/87, Cowan, [1989] ECR 195. Article 49 TFEU explicitly mentions ‘restrictions’ on the freedom of establishment but it also makes reference to ‘discrimination’, albeit without using the exact term (‘under the conditions laid down for its own nationals by the law of the country where such establishment is effected’). In the context of the free movement of services, Article 56 TFEU refers to ‘restrictions’, whilst Article 57 TFEU places emphasis on discrimination on the grounds of nationality (‘under the same conditions as are imposed by that State on its own nationals’. See paragraphs 18‐22 of the Opinion of Advocate General Jacobs in Case C‐224/02, Pusa, [2004] ECR I‐5763. P. Craig and C. de Búrca, EU Law: Text, Cases and Materials (OUP, 2008), at p. 558. This is now reflected in Article 9 TEU. See, inter alia, Articles 2, 3, 4 and 9 TEU, Articles 8, 10, 18, 19, 37, 40, 45, 95, 110 TFEU. Joined Cases 117/76 and 16/77, Ruckdeschel, [1977] ECR 1753, para. 7. 3 differently.13 If two comparable situations are treated differently, it must be proved that the difference in treatment is based on a non‐prohibited ground and that it is justified; otherwise, it qualifies as discrimination and is, thus, prohibited. Classic prohibited grounds – recognised, also, recently in EU law as prohibited – are, inter alia, sexual orientation, race, sex, nationality, religion, age and disability.14 As ‘general’ principles, equality and non‐discrimination ‘inform and constrain the exercise of competences across the full span of the Treaty’.15 Hence, the ECJ has transposed its formulation of the principle of equality, to different areas of EU law.16 The general parameters used to define this principle are the same in all areas, but certain re‐adjustments have had to be made in order to take into account the specific aims and purposes that underlie the different policy areas. In particular, the goals of each policy area determine which of the ‘prohibited grounds’ are, indeed, prohibited and, thus, turn differential treatment into unlawful discrimination. In the context of EU internal market law, the principle of equality has traditionally had a ‘market‐unifying’ role: ‘the notion of non‐discrimination underpins the creation of the unified market and is applied to facilitate equality of access for products, services, and persons regardless of their EU national origin’.17 Hence, as will be seen in the next section, in this area, it is discrimination on the grounds of nationality/origin that has traditionally been prohibited since it is clear that it impedes the market‐building aims of the Treaty, although in the past few decades the Court has accepted that discrimination against free movers can have the same effect and, thus, should also be caught by these provisions. More specifically, in this context, the prohibition of discrimination has – at least traditionally18 – been viewed as ‘an adjunct to the right to free movement’19 and as an indicator that national measures which hamper free movement because they discriminate should be removed, unless it is proved that they are justified on a non‐economic ground.20 Therefore, as explained by Bernard, in the context of the EU’s internal market policy, the 13 14 15 16 17 18 19 20 See, for instance, Case C‐148/02, Garcia Avello, [2003] ECR I‐11613, para. 31; Case C‐
354/95 National Farmers' Union and Others, [1997] ECR I‐4559, para. 61. See, for instance, Articles 10 and 19 TFEU and the Race Directive (Directive 2000/43) [2000] OJ L303/16) and the Framework Employment Directive (Directive 2000/78) [2000] OJ L303/16); Article 157 TFEU. This is also enshrined in Articles 20 and 21 of the EU Charter of Fundamental Rights. N. Nic Shuibhne, ‘The Common Market at 50’, (2008) 15 IJEL 103, at p. 109. G. More, ‘The Principle of Equal Treatment: From Market Unifier to Fundamental Right?’ in P. Craig and G. de Búrca, The Evolution of EU Law (OUP, 1999), at p. 517. G. More, ibid, at p. 518. See, however, the different approach adopted in some cases in the area of the free movement of persons. See the cases mentioned in Section IV(d). N. Bernard, ‘What are the purposes of EC Discrimination Law?’ in J. Dine and B. Watt (eds), Discrimination Law: Concepts, Limitations and Justifications (Longman, 1996), at p. 88. D. Chalmers, ‘Repackaging the Internal Market – The Ramifications of the Keck Judgment’, (1994) 19 ELRev. 385, at p. 397. 4 principle of non‐discrimination is ‘a central aspect of negative integration’.21 This has traditionally stripped this principle of any human rights or fairness considerations, thus making it a plain tool for market integration, and may be able to explain why the Court has always placed emphasis on the effect of a (discriminatory) measure, rather than on the ‘culpability’ of the Member State imposing it.22 The same rationale has been followed by the Court in its Article 21 TFEU case‐
law: any form of differential treatment that impedes the exercise of the right to free movement enunciated in that provision, should be prohibited. Nonetheless, the emphasis placed on the equal treatment of Union citizens, and the Court’s approach of dispensing with the requirement of a link between the discrimination suffered and a restriction to free movement,23 illustrate that in this area, discrimination is not merely used as a vehicle of negative integration but, also, as a quasi‐constitutional principle, in a polity where Union citizenship is the ‘fundamental status’ of Member State nationals.24 The Court of Justice has accepted that (prohibited)25 discrimination can come under a number of different guises: direct discrimination against products/factors of production and persons from other Member States; indirect discrimination against the same; and discrimination against free movers or, more broadly, discrimination against cross‐border situations.26 Direct discrimination on the grounds of origin/nationality, is a difference in treatment that is explicitly based on a person’s nationality or a product’s origin.27 This form of differential treatment is clearly prohibited by the Treaty because it 21 22 Supra note 19, at p. 78. Ibid, at p. 89. 23 See, for instance, Case C‐85/96, Martínez Sala v. Freistaat Bayern, [1998] ECR I‐269; Garcia Avello, supra note 13. 24 Case C‐184/99, Grzelczyk, [2001] ECR I‐6193, para. 31; Case C‐413/99, Baumbast, [2002] ECR I‐7081, para. 82; Case C‐209/03, Bidar, [2005] ECR I‐2119, para. 31; Pusa, supra note 8, para. 16; Case C‐524/06, Huber, [2008] ECR I‐9705, para. 69. 25 As will be seen subsequently, there are other forms of discrimination, such as ‘reverse discrimination’, which are not prohibited under EU law. For an argument that all the free movement provisions should be interpreted as basically aiming to prohibit discrimination against cross‐border situations (which, naturally, includes discrimination on the grounds of origin/nationality) see paragraph 41 of the Opinion of Advocate General Poiares Maduro in Joined Cases C‐158 & 159/04, Vassilopoulos, [2006] ECR I‐8135. For a somewhat similar view see N. Bernard, supra note 19, at pp. 88‐91; and N. Bernard, ‘Discrimination and Free Movement in EC Law’, (1996) 45 ICLQ 82, at pp. 85‐89. As noted by Advocate General Sharpston, ‘[r]ather surprisingly, the Court’s case‐law contains no clear definition of “direct discrimination”’. Para. 43 of the Opinion of Advocate General Sharpston in Case C‐73/08, Bressol, Judgment of 13 April 2010, not yet reported. 26 27 5 directly discourages the exercise of free movement by non‐State persons/goods, and can only be justified by the use of the Treaty derogations.28 The free movement provisions have been interpreted as prohibiting, also, indirect discrimination on the grounds of nationality/origin.29 In a long line of case‐law, the Court has recognised that ‘the principle of non‐discrimination prohibits not only direct discrimination on grounds of nationality but also all indirect forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result’.30 In fact, in this area, the Court has appeared to be rather flexible with regards to the proof of differential treatment, since – unlike in the area of EU sex equality law – it does not require proof that the contested measure in fact discriminates against non‐nationals or imported goods or services, but it is rather sufficient that it is merely shown that the measure is capable or likely to have such an effect.31 Instances of indirect discrimination on the grounds of nationality/origin can be justified under the Treaty derogations but the Court has, in addition, established the so‐called ‘mandatory requirements’32 or ‘imperative requirements’33 (i.e. a non exhaustive list of judge‐made derogations).34 Finally, in the last few decades, the Court has been eager to include another form of discrimination within the scope of application of the free movement provisions: discrimination against free movers or, more broadly, discrimination 28 Though, it should be noted, it has been argued in recent years that in certain cases the Court has accepted that directly discriminatory measures could be justified by using the non‐Treaty based derogations. For this argument see C. Barnard, supra note 5. 29 More recently, Advocate General Sharpston in her Opinion in the Bressol case sought to draw an elaborate distinction between direct and indirect discrimination. See paras. 43‐
57 of the Opinion of Advocate General Sharpston in Bressol, supra note 27. Bressol, supra note 27, para. 40; Case C‐212/05, Hartmann, [2007] ECR I‐6303, para. 29; Case C‐131/96, Mora Romero, [1997] ECR I‐3659, para. 32; Case C‐124/99, Borawitz, [2000] ECR I‐7293, para. 24. For a more elaborate definition of indirect discrimination see para. 45 of the Opinion of Advocate General Sharpston in Bressol: ‘Indirect discrimination occurs where an apparently neutral provision, criterion or practice would put persons with a characteristic that may not serve to draw distinctions at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’. See, Case C‐237/94, O’Flynn, [1996] ECR I‐2617, para. 21; Case C‐278/94, Commission v. Belgium, [1996] ECR I‐4307, para. 20. See, by contrast, the much more demanding approach followed by the Court with regards to the need by Member States to establish that a measure is justified and, in particular, that it is necessary for achieving the aim that is claimed that it purports to achieve. See, for instance, Bressol, para. 71. 30 31 32 33 34 This term was firstly established in Cassis de Dijon and is used in the context of the free movement of goods. This is one of the terms used in the area of the free movement of persons provisions, for judge‐made justifications. See, for instance, Case C‐415/93, Bosman, [1995] ECR I‐4921, para. 45. Case C‐57/96, Meints, [1997] ECR I‐6689, para. 45. 6 against cross‐border situations.35 The criterion of differentiation employed, here, is whether a person has exercised cross‐border movement or, more broadly, whether a situation involves a cross‐border element. The Court has concluded that discrimination against free movers/cross‐border situations is contrary to the free movement provisions, unless the contested measure can be justified, since it discourages the exercise of free movement.36 Of course, a certain confusion persists with regards to this guise of discrimination, since the Court sometimes views national measures which give rise to this form of differential treatment as mere restrictions, without making reference to discrimination.37 Moreover, in cases involving the nationals of other Member States, a measure which would otherwise be considered as discriminatory against free movers, may be considered to be indirectly discriminatory on the grounds of nationality.38 As will be seen, discrimination against free movers is the exact opposite of reverse discrimination, which is discrimination in favour of free movers, and the treatment of the two by the Court provides interesting insights into the relationship between the concepts of ‘discrimination’ and ‘restriction’. We should now move on to introduce the other main concept that will be explored in this contribution: ‘restriction’. In common parlance, ‘restriction’ is a ‘rule or law that limits what you can do or what can happen’.39 In other words, it is something that limits one’s freedom to act (or not to act) in a particular way, or the enjoyment of a right to which he or she is entitled. In the context of EU free movement law, the interpretation employed for this term has been much narrower and has naturally been informed by the aims of the Treaty. In particular, the term has traditionally been read as referring to a restriction on free movement; and, in the more specific context of the market freedoms, to a restriction on the exercise of inter­State movement that is linked to the exercise of an economic activity. 35 36 For an interesting discussion see N. Bernard, supra note 26, pp. 85‐89; M. Szydlo, ‘Export restrictions within the structure of free movement of goods. Reconsideration of an old paradigm’, (2010) 47 CMLRev. 753, at pp. 760‐762. See, inter alia, Case C‐224/98, D’Hoop, [2002] ECR I‐6191; Pusa, supra note 8; Case C‐
192/05, Tas­Hagen, [2006] ECR I‐10451; Case C‐499/06, Nerkowska, [2008] ECR I‑3993; Case C‐221/07, Zablocka, [2008] ECR I‐9029; Case C‐406/04, De Cuyper v. Office national de l'emploi, [2006] ECR I‐6947. 37 See, for instance, Case C‐19/92, Kraus, [1993] ECR I‐1663; Case C‐40/05, Lyyski, [2007] ECR I‐99. 38 The Court in Case C‐419/92, Scholz, [1994] ECR I‐505 found that the contested measure amounted to indirect discrimination on the grounds of nationality, even though on the facts it would be more appropriate to find that the measure was discriminatory against free movers, since it was applied to a national of the Member State that imposed it. A more correct approach would be to rule that (indirect) discrimination on the grounds of nationality emerges when the contested measure is applied to nationals of other Member States, whereas discrimination against free movers/cross‐border situations arises when the victim of the differential treatment is a national of the State which has taken the measure. See also – and compare – D’Hoop, supra note 36, with Case C‐258/04, Ioannidis, [2005] ECR I‐8275. 39 This is one of the definitions provided for this term in the Oxford Advanced Learner’s Dictionary (OUP, 2003), at p. 1090. 7 The Treaty drafters have inserted the term ‘restrictions’ in all free movement provisions, apart from Articles 45 and 21 TFEU.40 And whilst most of these provisions make reference solely to restrictions on free movement (of capital, of the self‐employed, of services, and so on), the free movement of goods provisions are somewhat more specific and prohibit ‘quantitative restrictions’ on imports and exports, and ‘measures having equivalent effect to quantitative restrictions’ (‘MEQRs’). The Court sought, first, to set the parameters of the scope of application of the free movement of goods provisions in the 1970s. In 1973, it provided a definition for the term ‘quantitative restrictions’ in its Geddo judgment, which is followed religiously to the present day;41 and one year later, it defined the term MEQRs for the purposes of Article 34 TFEU,42 through what is widely known as the ‘Dassonville formula’.43 The latter, however, proved to be a very broad – and thus, unworkable – definition and, as a result, the Court needed to provide further clarification of its meaning through later judgments such as Cassis de Dijon,44 Keck45 and, more recently, the duo of ‘use restrictions’ cases46 and the Ker­Optika judgment.47 As regards the provisions on the free movement of (economically active) persons, on the other hand, the Court in its early case‐law acknowledged that they prohibit Member State measures which are discriminatory (whether directly or indirectly);48 and in the 1990s, it made it clear that they also catch within their scope genuinely non‐discriminatory restrictions to inter‐State movement.49 This can include restrictions imposed by the host Member State to 40 41 42 43 44 Of course, as will be explained subsequently, the Court through its case‐law has made it clear that Articles 21 and 45 TFEU do not merely prohibit discrimination on the grounds of nationality but, also, non‐discriminatory restrictions to the free movement of persons. Case 2/73, Geddo, [1973] ECR 865, para. 7: ‘Measures which amount to a total or partial restraint of, according to the circumstances, exports, imports or goods in transit’. The term ‘MEQRs’ when used in the context of Article 35 TFEU has been interpreted somewhat differently. See Case 15/79, Groenveld, [1979] ECR 3409 and, now, Case C‐
205/07, Gysbrechts, [2008] ECR I‐9947. Case 8/74, Dassonville, [1974] ECR 837, para. 5: ‘All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra‐
Community trade are to be considered as measures having equivalent effect to quantitative restrictions’. Case 120/78, Rewe­Zentrale AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon), [1979] ECR 649. 45 Joined Cases C‐267&268/91, Keck, [1993] ECR I‐6097. 46 Case C‑142/05, Mickelsson and Roos, [2009] ECR I‑4273; Case C‐110/05, Commission v. Italy (mopeds), [2009] ECR I‐519. 47 Case C‐108/09, Ker­Optika, Judgment of 2 December 2010, not yet reported. See, for instance, Case 2/74, Reyners, [1974] ECR 631; Case 33/74, Van Binsbergen, [1974] ECR 1299. In Säger, the Court noted that ‘Article [56 TFEU] requires not only the elimination of all discrimination against a person providing services on the ground of his nationality but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services’ ‐ Case C‐76/90, Säger, [1991] ECR I‐
4221, para. 12. See, also, Case C‐384/93, Alpine Investments [1995] ECR I‐1141; Bosman, 48 49 8 the movement of persons coming from another Member State (‘import restrictions’);50 or restrictions imposed by the Member State of origin to the exit of Member State nationals from its territory (‘export restrictions’).51 The same has, also, been the Court’s approach subsequently, when interpreting Article 21 TFEU.52 Accordingly, apart from discrimination on the grounds of nationality/free movement, the latter provision has been held to entail a prohibition on non‐discriminatory restrictions to free movement; and this provision can, also, be invoked both, against the home and the host State, if their measures lead to an impediment to inter‐State movement.53 The Court in its free movement of persons case‐law has increasingly used the notion of an ‘impediment’ or ‘obstacle’ to free movement, as a synonym for the term ‘restriction’,54 and has followed a very broad approach when interpreting these terms, which have been read to include measures which are ‘liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty’,55 or which affect access to the market of another Member State.56 Non‐discriminatory restrictions to free movement can be justified using both, the Treaty derogations and the objective justifications. The same approach to restrictions (and discrimination) has been followed by the Court when interpreting the ‘Cinderella freedom’57 – the free movement of capital.58 50 supra note 33; Case C‐55/94, Gebhard, [1995] ECR I‐4165; Case C‐200/02, Chen, [2004] ECR I‐9925. For a commentator who is of the view that it is not appropriate to adopt such a (non‐discriminatory) approach, in the context of the more ‘non‐temporary’ freedoms (i.e. workers and establishment) see L. Daniele, ‘Non‐Discriminatory Restrictions to the Free Movement of Persons’, (1997) 22 ELRev. 191. For instance, Case C‐275/92, Schindler, [1994] ECR I‐1039; Case 340/89, Vlassopoulou, [1991] ECR 2357; Gebhard, supra note 49; Case 379/87, Groener, [1989] ECR 3967. 51 Bosman, supra note 33; Alpine Investments, supra note 49; Joined Cases 154&155/87, Wolf, [1988] ECR 3897; Case 81/87, DailyMail, [1988] ECR 5483; Case C‐484/93, Svensson and Gustavsson, [1995] ECR I‐3955. 52 Case C‐33/07, Jipa, [2008] ECR I‐5157. Helen Toner has been of the view that in order to prevent an over‐extension of the scope of these provisions, the Court should expressly require that in order for a measure to amount to a restriction to free movement contrary to the free movement of persons provisions, it must be proved that it directly or substantially impedes free movement. In particular she suggested the following proposition: ‘Any measure which has a direct or substantial (possibly exclusionary) effect on the rights – whether of economic activity or of residence – contained in Articles [21, 45, 49, and 56] is incompatible with the Treaty unless objectively justified by imperative reasons of public interest’. See H. Toner, ‘Non‐
Discriminatory Obstacles to the Exercise of Treaty Rights – Articles 39, 43, 49, and 18 EC’, (2005) 23 YEL 275, at p. 296. See, for instance, Bosman, supra note 33, paras. 92‐104. Gebhard, supra note 49, para. 37; Kraus, supra note 37, para. 32; Case C‐285/01, Burbaud, [2003] ECR I‐8219, para. 95; Case C‐442/02, CaixaBank, [2004] ECR I‐8961, para. 11. 53 54 55 56 57 58 Alpine Investments, supra note 49, para. 38; Bosman, supra note 33, para. 103. This is a widely used term among commentators. See, for instance, T. Tridimas and P. Nebbia, ‘Introduction’ in T. Tridimas and P. Nebbia (eds), European Union Law for the Twenty­First Century (Hart, 2004), at p. 3. For an analysis see C. Barnard, supra note 5, Chapter 15. 9 III. THE COURT’S (ORTHODOX) RESPONSE TO REVERSE DISCRIMINATION AND RESTRICTIONS IN PURELY INTERNAL SITUATIONS Although discrimination against nationals/products of another Member State is prohibited under the free movement provisions, discrimination against a Member State’s own nationals/products in situations that fall outside the scope of EU law (i.e. reverse discrimination), is not; or, more broadly, although discrimination against free movers is prohibited under the above provisions, discrimination in favour of free movers and against non‐movers (i.e. reverse discrimination), is not caught by EU law. Moreover, with the exception of the area of customs duties,59 the Court has ruled that restrictions to free movement within a Member State, are not prohibited by the free movement provisions, and that a measure must hamper inter­State movement, in order for it to be caught by these provisions.60 This section of the contribution will be devoted to a brief61 analysis of the Court’s traditional approach to the above two issues – reverse discrimination and purely internal situations – starting with the latter. In the late 1970s, the Court established what is known as ‘the purely internal rule’. In the case of Knoors, the Court made the obiter statement that ‘the provisions of the Treaty relating to establishment and the provision of services cannot be applied to situations which are purely internal to a Member State’,62 which it soon after clarified by explaining that these are situations ‘where there is no factor connecting them to any of the situations envisaged by Community law’.63 Although the Court has never, formally, established a test for determining whether a situation is purely internal to a Member State, a ‘linking factor test’ can be discerned from the Court’s case‐law over the years, which is comprised of the following, cumulative, limbs: a) Does the situation under examination involve movement from one Member State to another?; b) Is this movement exercised for an economic purpose?; c) Is the contested measure capable of impeding that movement?64 Obviously, the requirement that the movement is exercised for an economic purpose is not applicable to Article 21 TFEU, for which the ‘linking factor’ test simply appears to be a) whether the situation involves inter‐State 59 60 61 62 63 64 See Section IV(a). Case 298/84, Iorio v. Azienda autonoma delle ferrovie dello Stato, [1986] ECR 247; Case 175/78, R v. Saunders, [1979] ECR 1129. Under its traditional approach, the Court did not merely require the proof of a restriction to inter‐State movement in general, but, rather, it was necessary to prove that the specific facts of the case involved the exercise of inter‐State movement by a particular person/product which movement would be impeded as a result of the application of the contested measure. See Advocate General Cosmas in paragraph 14 of his Opinion in Case C‐36/94, Belgapom v. ITM and Vocarex, [1995] ECR I‐2647. For a detailed study of reverse discrimination and purely internal situations see A. Tryfonidou, Reverse Discrimination in EC Law (Kluwer, 2009). Case 115/78, Knoors, [1979] ECR 399, para. 24. Saunders, supra note 60, para. 11. See, also, inter alia, Joined Cases 35&36/82, Morson and Jhanjan, [1982] ECR 3723, para. 16; Case C‐153/91, Petit, [1992] ECR I‐4973, para. 8; Joined Cases C‐95‐98&180/99, Khalil, [2001] ECR I‐7413, para. 69. A. Tryfonidou, supra note 61, at p. 11. 10 movement and b) whether the contested measure is capable of impeding that movement. As explained by Advocate General Sharpston, the question whether a situation presents a sufficient link with EU law ‘must be answered in the light of the goals of the relevant Treaty provisions’.65 Thus, the above ‘linking factor test’ obviously seeks to exclude from the scope of the free movement provisions, situations that do not present a sufficient link with their aims. Since the aim of the free movement provisions has, at least traditionally, been to remove any restrictions to the free movement of persons and/or products/factors of production from one Member State to another, it is only situations that involve national measures that prevent the achievement of this aim that have traditionally been caught by these provisions. Consequently, in its traditional case‐law in this area, the Court has ruled that situations that did not involve the exercise of inter‐State movement were purely internal to a Member State and thus were not governed by EU law.66 Similarly, in its traditional case‐law in the context of the market freedoms, the Court has excluded from the ambit of those provisions, situations that involved the exercise of free inter‐State movement for a non‐economic purpose;67 of course, nowadays such restrictions would trigger Article 21 TFEU.68 Conversely, nationals of a Member State can rely on the free movement provisions against their own Member State, when their situation presents a sufficient cross‐border element. This has been found to be so in situations involving nationals wishing to leave their territory to move to another Member State, either in order to pursue an economic activity in the latter,69 or merely to reside there.70 Any measure that amounts to a restriction to that ‘outward’ movement, can be found to be contrary to the free movement provisions, unless it is justified. In addition, Member State nationals can rely on the free movement provisions against their own Member State, when they wish to return to the latter after having exercised one of the fundamental freedoms. Any measure which amounts to a restriction either on the original movement to the other Member State or on the movement back to 65 66 67 68 69 70 Para. 136 of the Opinion of Advocate General Sharpston in Case C‐212/06, Government of the French Community and Walloon Government v. Flemish Government (Flemish Care Insurance scheme case), [2008] ECR I‐1683. See, for instance, Saunders, supra note 60; Joined Cases 314‐316/81 and 83/82, Waterkeyn, [1982] ECR 4337; Case 20/87, Gauchard, [1987] ECR 4879, paras 12‐13; Case C‐18/95, Terhoeve, [1999] ECR I‐345, para. 26; Case C‐60/91, Criminal proceedings against José António Batista Morais, [1992] ECR I‐2085; Joined Cases 54 and 91/88 and 14/89, Niño and others, [1990] ECR 3537; Case C‐97/98, Jägerskiöld v. Gustafsson, [1999] ECR I‐7319; Case C‐513/03, Van Hilten, [2006] ECR I‐1957. Case C‐112/91, Werner, [1993] ECR I‐429. See the Opinion of Advocate General Léger in Case C‐152/03, Ritter­Coulais, [2006] ECR I‐1711, paras. 51‐67. See, for instance, Bosman, supra note 33. See, for instance, Pusa, supra note 8. 11 the State of nationality, amounts to a prima facie violation of the relevant provision.71 The same rationale that lies behind the purely internal rule has, also, informed the Court’s response to the issue of reverse discrimination. This form of differential treatment arises in purely internal situations, due to the fact that the latter are excluded from the scope of application of EU law.72 It is the discrimination suffered by the nationals of a Member State whose situation is not covered by EU law, and emerges as a result of the fact that the national law that governs the situation (i.e. the law of their own Member State), treats persons that are subject to it worse than persons that fall within the scope of EU law in a similar cross‐border situation. It is called ‘reverse’ discrimination, since, although it is the norm for Member States to wish to discriminate against non‐
nationals and goods produced in other Member States in order to protect their own products/persons, in instances of reverse discrimination, it is exactly the opposite that happens:73 a Member State treats its own goods and persons worse than the goods/persons of other Member States (as well as its own nationals that fall within the scope of EU law), (usually) not because it wants to, but because the parallel application of EU law and national law to similar situations which fall within different spheres of competence (EU and national respectively), leads unavoidably to such a result.74 Despite some views that reverse discrimination is a form of discrimination on the grounds of nationality,75 in my view, it is better seen as discrimination on the 71 Case C‐370/90, Singh, [1992] ECR I‐4265; Case C‐291/05, Eind, [2007] ECR I‐10719; C‑353/06, Grunkin Paul, [2008] ECR I‑7639. 72 The scope of this contribution does not permit a detailed analysis of the academic debate on reverse discrimination and, in particular, the question whether it is a form of a difference in treatment that should be prohibited by EU law. For more on this see A. Tryfonidou, supra note 61. Sundberg‐Weitman has characterised reverse discrimination as ‘the exceptional case that special favours are granted to aliens’. See B. Sundberg‐Weitman, Discrimination on Grounds of Nationality – Free Movement of Workers and Freedom of Establishment under the EEC Treaty (North‐Holland Publishing Company, 1977), at p. 113. See, also, G. Davies, Nationality Discrimination in the European Internal Market (Kluwer, 2003), at p. 19. E. Cannizzaro, ‘Producing “Reverse Discrimination” through the exercise of EC competences’, (1997) 17 YEL 29; P. Van Elsuwege and S. Adam, ‘The limits of Constitutional dialogue for the prevention of reverse discrimination: Constitutional Court, Judgment 11/2009 of 21 January 2009’, (2009) European Constitutional Law Review 327, at p. 328. S. D. Kon, ‘Aspects of Reverse Discrimination in Community Law’, (1981) 6 ELRev. 75; B. Sundberg‐Weitman, supra note 73, Chapter 9; A. Arnull, The General Principles of EEC Law and the Individual (Leicester University Press, 1990), at p. 51; H. U. Jessurun d'Oliveira, ‘Is Reverse discrimination still permissible under the Single European Act?’ in Forty years on: The Evolution of Postwar Private International Law in Europe: symposium in celebration of the 40th anniversary of the Centre of Foreign Law and Private International Law, University of Amsterdam, on 27 October 1998 (Kluwer, 1990). Also, see, more recently, para. 144 of the Opinion of Advocate General Sharpston in Case C‐
34/09, Zambrano, Judgment of 8 March 2011, not yet reported. 73 74 75 12 grounds of the exercise (or, more accurately, non‐exercise) of EU free movement rights.76 Hence, it is discrimination in favour of free movers. The paradigmatic example used to demonstrate the harshness of this form of differential treatment is the (traditional) case‐law in the area of family reunification rights.77 EU law requires Member States to automatically accept within their territory certain categories of family members of Union citizens, when they accompany the latter who come from another Member State,78 whereas national immigration laws which apply in purely internal situations are usually more restrictive, requiring the family members of the nationals of the said Member State to be subject to an individual assessment which may, in certain instances, result in a refusal of entry.79 Therefore, in situations involving the bestowal of family reunification rights, a Member State national who can prove that he falls within the scope of EU law, is in a better position than a Union citizen whose situation is judged to be purely internal.80 The injustice of the situation has been further highlighted in recent years, as a result of a string of cases where the Court made it overly easy for a situation in this context to be covered by EU law, albeit still requiring a cross‐border element (however artificial that may be).81 The Court was first confronted with the question of whether reverse discrimination is contrary to EU law in the 1980s. In all its rulings – and up until today – the Court has expressly held that reverse discrimination does not amount to a violation of the free movement provisions, since it does not hamper the achievement of their aim. In particular, the Court is of the view that reverse discrimination does not hamper inter­State movement, as it does not treat persons, products and factors of production less favourably because they move.82 In fact, because it treats those that move more favourably than those that remain static, it may actually have the opposite effect, i.e. it may encourage the exercise 76 77 78 79 80 N. Nic Shuibhne, ‘Free movement of persons and the wholly internal rule: Time to move on?’, (2002) 39 CMLRev. 731, at pp. 736‐738; C. Hilson, supra note 3, at p. 460; A. P. Van der Mei, Free Movement of Persons Within the European Community: Cross­Border Access to Public Benefits (Hart, 2003), at pp. 81‐82; G. Davies, supra note 73, at pp. 128‐130. See, most famously, Morson and Jhanjan, supra note 63. See G. Barrett, ‘Family matters: European Community law and third‐country family members’, (2003) 40 CMLRev. 369. This is now provided in Recital 5 and Articles 3, 2(2), 6 and 7 of Directive 2004/38 on free movement and residence of EU citizens and their families, [2004] OJ L158/77. See paragraph 33 of the Opinion of Advocate General Geelhoed in Case C‐1/05, Jia, [2007] ECR I‐1. See, for example, Morson and Jhanjan, supra note 63. 81 See the judgments in Case C‐60/00, Carpenter, [2002] ECR 6279; Jia, supra note 79; Case C‐291/05, Eind, [2007] ECR I‐10719; Case C‐127/08, Metock, [2008] ECR 6241; Case C‐
551/07, Sahin, Order of 19 December 2008. For an analysis of this case‐law see A. Tryfonidou, ‘Family reunification rights of (migrant) Union citizens: Towards a liberal approach’, (2009) 15 ELJ 634. 82 Case 98/86, Criminal proceedings against Arthur Mathot, [1987] ECR 809; Case 44/84, Hurd v. Jones (Her Majesty's Inspector of Taxes), [1986] 2 CMLR 1; Joined Cases C‐29/94, C‐30/94, C‐31/94, C‐32/94, C‐33/94, C‐34/94 and C‐35/94, Criminal proceedings against Aubertin and others, [1995] ECR I‐301; Case 355/85, Public Prosecutor v. Michel Cognet, [1986] ECR 3231. 13 of free movement.83 Hence, unlike in situations which involve ‘discrimination against free movers’ where Member State nationals can rely on EU law against their own Member State because otherwise a restriction to inter­State movement will emerge, in instances of reverse discrimination, Member State nationals cannot rely on the free movement provisions because there is no sufficient link with the aim of these provisions. This, exactly, highlights the strong relationship between the notion of ‘restriction’ and ‘discrimination’ in the area of free movement law, in that the former appears to be determining what guises of discrimination are prohibited by the free movement provisions. The Court’s traditional position has been that, if the Member States consider reverse discrimination to be a problem, then, it is up to them to remedy it.84 In fact, the Court has been inclined to assist them in this, by offering an interpretation of the free movement provisions, in case where this is likely to enable the referring national court to eliminate reverse discrimination by extending, as a matter of national law, the rights deriving from the free movement provisions, to situations that are purely internal.85 Finally, and carrying forward its tradition of using discrimination as purely a tool for the removal of restrictions to free movement, the Court has repeatedly emphasised that the introduction of the status of Union citizenship has not effected a change to its approach to reverse discrimination, since this development has not extended the scope of EU law to situations that are unconnected with the aims of the Treaty.86 However, as will be seen in the next section, the Court may have been in the process of reconsidering the plausibility of reverse discrimination in today’s EU – in a Citizens’ Europe – though it does not yet appear ready to admit so, and rather prefers to respond to this issue by tweaking its approach towards the root‐cause of this form of differential treatment (i.e. purely internal situations).87 83 A. Tryfonidou, supra note 61, at p. 60. 84 Case C‐132/93, Steen (No. 2), [1994] ECR I‐2715, paras. 10‐11. See, for instance, Case C‐448/98, Guimont, [2000] ECR I‐10663; Joined Cases 297/88 and 197/89, Dzodzi, [1990], ECR I‐3763; Case C‐250/03, Mauri, [2005] ECR I‐1267; Case C‐
451/03, Servizi Ausiliari Dottori Commercialisti, [2006] ECR I‐2941; Flemish Care Insurance Scheme case, supra note 65; Joined Cases C‐515/99, C‐519/99 to C‐524/99 and C‐526/99 to C‐540/99, Reisch, [2002] ECR I‐2157; Case C‐6/01, Anomar, [2003] ECR I‐
8621. 85 86 Joined Cases C‐64&65/96, Uecker and Jacquet, [1997] ECR I‐3171, para. 21; Case C‐
148/02, Garcia Avello, supra note 13, para. 26; Case C‐403/03, Schempp, [2005] ECR I‐
6421, para. 20; Flemish Care Insurance Scheme case, supra note 65, para. 39; Case C‐
192/05, Tas­Hagen, [2006] ECR I‐10451, para. 23; Case C‐499/06, Nerkowska, [2008] ECR I‑3993, para. 25. 87 For an analysis of the argument that reverse discrimination may no longer be an acceptable difference in treatment in a Citizens’ Europe see A. Tryfonidou, ‘Reverse Discrimination in Purely Internal Situations: An Incongruity in a Citizens’ Europe’, (2008) 35 LIEI 43; C. Jacqueson, ‘Union citizenship and the Court of Justice: something new under the sun? Towards social citizenship’ (2002) 27 ELRev. 260; M. Poiares Maduro, ‘The Scope of European Remedies: The Case of Purely Internal Situations and Reverse Discrimination’ in C. Kilpatrick, T. Novitz and P. Skidmore (eds.), The Future of European Remedies (Hart, 2000), at p. 126; N. Nic Shuibhne, supra note 76; F. G. Jacobs, ‘Citizenship of the European Union – A Legal Analysis’ (2007) 13 ELJ 591, at p. 598. 14 IV. WHAT CAN THE COURT’S RESPONSE TO REVERSE DISCRIMINATION AND PURELY INTERNAL SITUATIONS CONTRIBUTE TO OUR UNDERSTANDING OF THE RELATIONSHIP BETWEEN THE ‘DISCRIMINATION’ AND ‘RESTRICTION’ CONCEPTS IN EU FREE MOVEMENT LAW? In EU free movement law, the concepts of ‘restriction’ and ‘discrimination’ are closely intertwined and inter‐dependent. Both concepts are defined and limited by the goals that the free movement provisions purport to achieve. Since, traditionally, the latter provisions have been read as having as their aim the removal of restrictions to the inter‐State movement of persons, products and factors of production, it is only such restrictions that have been caught by the free movement provisions, and it is only instances of discrimination that lead to such restrictions, that have been found to amount to a violation of these provisions. Hence, and as will be seen in more detail subsequently, a move to extend or narrow down the goals that the free movement provisions purport to achieve, has an immediate impact on the way that each of these concepts is defined. In the area of EU free movement law, the notions of ‘restriction’ and ‘discrimination’ can, sometimes, entirely coincide. This occurs when discrimination becomes a necessary element for a measure to be held to amount to a restriction and, in fact, determines what is a ‘restriction’; in other words, it occurs, when it is held that a free movement provision only catches discriminatory restrictions. This has been the case (at least) until recently, in the area of the free movement of goods, since the Court with Keck88 excluded from the scope of Article 34 TFEU equal burden rules, and thus it was only (directly or indirectly) discriminatory measures that could be caught by that provision.89 Similarly, Article 35 TFEU was, until the Gysbrechts ruling,90 thought to be prohibiting only directly discriminatory restrictions on the exportation of goods, but with the latter case it was established that it can now, also, apply to indirectly discriminatory restrictions on exports. Nonetheless, in the recent ‘use restrictions’ cases (Mickelsson and Roos and Commission v. Italy),91 with their emphasis on a ‘hindrance to market access’ and the addition of non‐discriminatory measures which amount to such a hindrance, to the more traditional categories of measures caught by Article 34 TFEU (i.e. discriminatory measures and indinstinctly applicable dual‐burden product 88 89 90 91 Supra note 45. J. Snell and M. Andenas, ‘Exploring the Outer Limits: Restrictions on the Free Movement of Goods and Services’ in M. Andenas and W‐H. Roth (eds.), Services and Free Movement in EU Law (OUP, 2002); C. Hilson, supra note 2, at p. 451; H. Toner, supra note 53, at p. 275. Supra note 42. For an annotation see W-H Roth in (2010) 47 CMLRev. 509. For more on the scope of Article 35 TFEU, post‐Gysbrechts, see A. Dawes, ‘A freedom reborn? The new
yet unclear scope of Art. 29 EC’, (2009) 34 ELRev. 639. Supra note 46. For an analysis of these cases see E. Spaventa, ‘Leaving Keck behind? The free movement of goods after the rulings in Commission v. Italy and Mickelsson and Roos’, (2009) 34 ELRev. 914. 15 requirements per Cassis),92 the Court may have freed the notion of ‘restriction’ from a requirement of ‘discrimination’. This may, in fact, be explaining the approach taken in the more recent judgment on Article 34 TFEU – Ker­Optika93 – where the Court appears to have reversed the Keck presumption, by ruling that certain selling arrangements are caught by Article 34 TFEU, unless they satisfy the two Keck conditions.94 Viewed more closely, this does not appear to be making a significant change if seen from the point of view of the final result in a case, but it is significant at a more symbolic level, because the Court has now included within the scope of Article 34 TFEU certain types of measures which are not inherently discriminatory,95 unless it is positively proved that they satisfy the two Keck conditions. Accordingly, the approach of the Court towards the relationship between ‘restrictions’ and ‘discrimination’ in the area of goods, may now be in a trajectory leading to convergence with the other free movement provisions.96 It is clear that the latter catch within their ambit discriminatory and non‐discriminatory restrictions to free movement. This means that in this context, the notion of ‘restriction’ is broader than,97 and includes, ‘discrimination’, and both are limited by the goals of the free movement provisions. Thus, it is only forms of discrimination that impede the inter‐State movement of persons and products/factors of production, and it is only (discriminatory or genuinely non‐
discriminatory) restrictions to inter‐State movement, that are prohibited. In this section of the contribution, I will use as a case‐study the Court’s response to reverse discrimination and purely internal situations, in order to demonstrate the interdependence of the notions of ‘restriction’ and ‘discrimination’ in EU free movement law. As already noted, both concepts are defined and limited by (what the Court determines to be) the aims of the free movement provisions and hence the Court’s decision to extend or narrow down these goals has an immediate impact on the way that each of these concepts is defined.98 My argument will be that the Court in its recent jurisprudence appears to be increasingly extending the notion of ‘restriction’ to cover national measures in situations that would, otherwise, escape the ambit of EU law. Although reverse discrimination is, still, considered to be a form of differential treatment that is 92 93 94 95 96 Commission v. Italy (mopeds), supra note 46, para. 37; Mickelsson and Roos, supra note 46, paras. 24 and 26. Supra note 47. Ibid, para. 51. As is the case, for instance, with product requirements. A. Tryfonidou, supra note 4. 97 See note 43 of the Opinion of Advocate General Ruiz‐Jarabo Colomer in Joined Cases C‐11 & 12/06, Morgan and Bucher, [2007] ECR I‐9161. 98 As noted by Advocate General Ruiz‐Jarabo Colomer in paragraph 3 of his Opinion in Morgan and Bucher, ibid, ‘[f]reedom of movement is one of these original ideas, which has become a fundamental premiss, but one whose content varies, since it applies to a changeable situation, which evolves in accordance with social needs, improved transport facilities, the increase in trade and so many other factors which increase the mobility of individuals and their families’. 16 not prohibited by the free movement provisions, the broader reading of the term ‘restriction’ reduces, arithmetically, the instances of reverse discrimination that can emerge. This is, probably, in the Court’s view, the most – if not only – appropriate ‘EU solution’ to the problem of reverse discrimination, and, possibly, the best possible compromise among the members of the Court, on an issue as controversial as that of reverse discrimination which, underneath it conceals the all‐important question of the division of powers between the Member States and the EU. Moreover, it will be argued that there are numerous signs that the Court may now be wishing to extend the scope of the free movement provisions to encompass aims which are broader than the pure removal of restrictions to free (inter‐State) movement, something which might necessitate a re‐reading of the free movement provisions that will entail a prohibition on reverse discrimination. Nevertheless, the latest cases where the Court was called upon to confront the reverse discrimination conundrum, do not show any signs that this will happen any time soon; rather, the issue of reverse discrimination appears to still be a ‘taboo’ for the Court, which insists on extending the scope of the Treaty provisions and, in this way, covertly contributing to the reduction in the number of instances of reverse discrimination. Turning from this outline of the relationship between the ‘restriction’ and ‘discrimination’ concepts, the following subsections seek to explore how the Court has tweaked its approach to purely internal situations and what has been the impact of this on the interpretation of the term ‘restriction’ and on the emergence of reverse discrimination. a) Restrictions to free movement within a Member State (Some) of the free movement provisions make explicit reference to a cross‐
border element, the word ‘border’, here, being traditionally equated to a national border.99 This has given cause to the Court to read the free movement provisions as aiming at liberalising the movement of persons and products/factors of production between Member States, whilst ignoring any measures that hamper free movement purely within a Member State. As the Court explained in its landmark Saunders ruling, Article 45 TFEU does not ‘aim to restrict the power of the Member States to lay down restrictions, within their own territory, on the freedom of movement of all persons subject to their jurisdiction in implementation of domestic criminal law’,100 and proceeded to 99 100 See Articles 34 and 35 TFEU; Article 49 TFEU; Article 56 TFEU; and Article 63 TFEU. The same is the case for Article 30 TFEU (the prohibition on the imposition of customs duties). Note, however, that Articles 45 and 21 TFEU do not make reference to a cross‐
border element. Yet, quite ironically, it is in a case involving Article 45 TFEU that the Court for the first time found that a situation was purely internal to a Member State due to the fact that the measure that it involved was a restriction to intra­State movement (see Saunders, supra note 60). Saunders, supra note 60, para. 10. 17 explain that this amounts to a purely internal situation.101 Following some speculation as to the exact importance of this pronouncement and as to whether it should be confined to the particular facts of the case which involved the enforcement of national criminal law, the Court made it clear in its subsequent rulings that, in order for a national measure to amount to a violation of the free movement provisions, it must be a restriction to inter­State movement.102 However, from the mid‐1990s onwards, a different approach was followed by the Court with regards to the customs duties provisions of the Treaty. Although, strictly speaking, these provisions are not considered to belong to the category of the free movement provisions, they nonetheless appear to be sharing the same aim with the latter: to remove obstacles to free movement, by prohibiting the imposition of customs duties on goods that move between Member States.103 Article 30 TFEU provides that customs duties on imports and exports and charges having equivalent effect (CEEs) shall be prohibited between Member States. One would expect the Court to read this prohibition as covering, only, tariff barriers to trade imposed on goods that move between Member States and would exclude from its ambit such duties, when levied on goods that merely cross the internal frontiers of a Member State.104 However, from the mid‐1990s onwards, the Court departed from this interpretation, and in its Lancry‐saga it held that the customs duties provisions require ‘the free movement of goods generally, as opposed to inter‐State trade alone, to be ensured within the Union’.105 The Court offered a number of explanations for this move. In its Lancry judgment, it noted that ‘[s]ince the very principle of a customs union covers all trade in goods […] it requires the free movement of goods generally, as opposed to inter‐State trade alone, to be ensured within the Union. Although [the customs duties provisions make] express reference only to trade between Member States, that is because it was assumed that there were no charges exhibiting the features of a customs duty in existence within the Member States. Since the absence of such charges is an essential precondition for the attainment of a customs union covering all trade in goods, it follows that they are likewise prohibited by’ the customs duties provisions’.106 Secondly, the Court explained that this was not a purely internal situation because the contested dues were imposed both on goods moving between Member States and goods moving within 101 Ibid, para. 11. 102 For a full list of the different guises the Court has accepted that inter‐State movement can take see N. Nic Shuibhne, supra note 15, at pp. 113‐114. 103 Joined Cases 2&3/69, Diamantarbeiders, [1969] ECR 211, points 11/14. G. Tesauro, ‘The Community’s Internal Market in the light of the Recent Case‐law of the Court of Justice’, (1995) 15 YEL 1, at p. 11. This pronouncement was first made in Joined Cases C‐363, 407, 411/93, Lancry, [1994] ECR I‐3957, para. 29 and was later repeated in Case C‐72/03, Carbonati Apuani, [2004] ECR I‐8027, para. 22. The Court followed the same principle in Joined Cases C‐
485&486/93, Simitzi, [1995] ECR I‐2655, para. 17. For an analysis of this line of case‐law see A. Tryfonidou, ‘Resolving the reverse discrimination paradox in the area of customs duties: The Lancry saga’, (2011) 22 EBLR 311. Lancry, supra note 105, para. 29. 104 105 106 18 a Member State, and that it would be inconsistent to hold that they only amount to customs duties and CEEs when imposed on the former.107 And finally, it was noted that ‘since charges such as dock dues are imposed on all goods alike, it would be very difficult, if not impossible, in practical terms, to distinguish between products of domestic origin and products originating in other Member States’.108 In Carbonati Apuani, the Court added the further argument that Article 26(2) TFEU defines the internal market as ‘an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured’, and does not draw ‘any distinction between inter‐State frontiers and frontiers within a State’.109 Since, the Court continued, the customs duties provisions must be read in conjunction with Article 26(2) TFEU, ‘the absence of charges – whether between States or within a State – exhibiting the features of a customs duty is a precondition to the realisation of a customs union in which the free movement of goods is ensured’.110 The Court in this line of case‐law may have simply wished to extend the scope of the customs duties provisions to situations involving an impediment to intra‐
State movement, and, thus, broaden the meaning of the term ‘restriction’ to this effect.111 Yet, as explained by Advocate General Léger in his Opinion in the Jersey Potatoes case,112 the Court’s Lancry‐saga may have a deeper – albeit more limited – cause, this being to prevent the emergence of reverse discrimination. If it was expressly ruled by the Court that EU law only prohibits customs duties and CEEs when they are imposed on goods that move between Member States, this would mean that when such dues are imposed on goods that move within a Member State, they are not prohibited. In other words, Member States would be allowed to impose such dues on goods that move solely within their territory and, thus, those goods would have to incur these extra costs (and, thus, become less attractive to the consumer), when, at the same time, goods coming from other Member States would be free from any such levies as a result of the application of EU law. This obviously amounts to reverse discrimination, and emerges as a result of the interaction between EU law and national law.113 The prevention of the emergence of reverse discrimination appears, indeed, to be quite a plausible explanation for the Court’s approach in the Lancy‐Simitzi‐
Carbonati Apuani trilogy. This is especially so, when viewed in the light of the 107 108 109 110 111 112 113 Ibid, para. 30. Ibid, para. 31. Carbonati Apuani, supra note 105, para. 23. Ibid, para. 24. This possibility has been considered – but rejected – in A. Tryfonidou, supra note 105, at pp. 327‐330. For proponents of the view that the free movement provisions should, also, cover intra‐State movement of goods/persons see, inter alia, H. U. Jessurun d’Oliveira, supra note 75, at pp. 83‐86; K. Mortelmans, ‘Towards Convergence in the Application of the Rules on Free Movement and on Competition’, (2001) 38 CMLRev. 613, at pp. 630‐
631. Paragraphs 111‐116 of the Opinion of Advocate General Léger in Case C‐293/02, Jersey Potatoes, [2005] ECR I‐9543. See para. 62 of the Opinion of Advocate General Poiares Maduro in Carbonati Apuani, supra note 105. 19 different approach followed in Jersey Potatoes,114 where the Court seemed to have insisted on the need to find a (potential) impediment to the inter‐State movement of goods,115 since, on the facts, no reverse discrimination would emerge as a result of the partial application of EU law. Accordingly, in this context, although at first glance it appears that the Court wished to extend the scope of the customs duties provisions to cover, also, restrictions to intra‐State movement, the real aim of the Court may have been to widen the scope of application of the customs duties provisions in such a way as to prevent the emergence of reverse discrimination, that would otherwise arise as a result of the (partial) application of the customs duties provisions. Therefore, through its customs duties case‐law, the Court may have merely wished to extend the scope of Article 30 TFEU to encompass measures which amount to a restriction to intra­State movement, if otherwise reverse discrimination would ensue as a result of the partial application of EU law; in other words, its aim was not to open the scope of Article 30 TFEU to all restrictions on intra‐State movement, but merely to include within the scope of Article 30 TFEU situations involving such restrictions, if otherwise reverse discrimination would ensue. The above analysis demonstrates how the Court has expanded the aims of a Treaty provision (Article 30 TFEU) and has, correspondingly, broadened the notion of ‘restriction’ which, in its turn, has meant that certain instances of discrimination that would otherwise emerge and would not be covered by that provision, can no longer arise in the first place. Hence, in this context, the Court may have sought to respond to the problem of reverse discrimination in a proactive way: instead of broadening the scope of the customs duties provisions so as to prohibit instances of reverse discrimination that have already emerged, the Court has, instead, preferred to adopt a more subtle solution to this problem and target the root‐cause of this form of differential treatment by expanding the notion of ‘restriction’. Following the Court’s Lancry‐saga pronouncements, the question emerged whether the Court should follow the same approach in the context of the free movement provisions. Above, it was noted that the Court in the Carbonati Apuani case stressed that Article 26(2) TFEU does not merely aspire to build an internal market where the inter­State movement of products and factors of production is protected, but, more broadly, an internal market where there is free movement within Member States. Since, the Court continued, Article 30 TFEU should be read together with Article 26(2) TFEU, Article 30 TFEU should apply to situations involving the free movement of goods within a Member State. If this is, indeed, a valid argument, it is questionable why it has not, also, been transplanted to the context of free movement. Just like Article 30 TFEU has to be read together with Article 26(2) TFEU, it could be argued that the free movement provisions have to be read in the light of that provision and thus they should be read as prohibiting restrictions to free movement – both within and between 114 115 For an analysis see my annotation of the case ‐ A. Tryfonidou, (2006) 43 CMLRev. 1727. Jersey Potatoes, supra note 112, paras. 65‐66. 20 Member States. A move, nonetheless, that would probably be more appropriate to be taken through political, rather than judicial, channels.116 The above question was posed expressly by Advocate General Sharpston in her Opinion in the Belgian care insurance scheme case – a free movement of persons case.117 The Advocate General admitted that she finds ‘something deeply paradoxical about the proposition that, although the last 50 years have been spent abolishing barriers to freedom of movement between Member States, decentralized authorities of Member States may nevertheless reintroduce barriers through the back door by establishing them within Member States. One might ask rhetorically, what sort of a European Union is it if freedom of movement is guaranteed between Dunkirk (France) and De Panne (Belgium), but not between Jodoigne and Hoegaarden?’.118 In its judgment in that case, however, the Court chose to maintain its traditional approach, thus excluding from the ambit of the free movement of persons provisions, situations that involved Member State nationals who merely moved within one and the same Member State.119 The same approach appears to have been followed in the context of the free movement of goods in the very recent Fragkopoulos case,120 where the Court adopted an approach very similar to the one pursued in Jersey Potatoes (the Article 35 TFEU bit) and ‘squeezed’ the facts of the case in order to extract a sufficient inter‐State element: a restriction on (potential) movement to another Member State.121 This, after all, is the approach that has been classically followed by the Court in free movement of goods cases that involve regional restrictions to the free movement of goods. Even after the Court’s rulings in Lancry and its progeny, the Court has continued to rule that restrictive measures imposed by specific regions of a Member State are contrary to Articles 34 and/or 35 TFEU, but only when 116 117 118 119 120 121 N. Nic Shuibhne, supra note 15, at p. 116. Para. 129 of the Opinion of Advocate General Sharpston in the Flemish Care Insurance Scheme case, supra note 65. Ibid, para. 116. Paras 37‐38 of the judgment in the Flemish Care Insurance Scheme case, supra note 65. Case C‐161/09, Fragkopoulos, Judgment of 3 March 2011, not yet reported, para. 29. These cases, together with Article 34 TFEU case‐law such as Joined Cases C‐321‐324/94, Pistre, [1997] ECR I‐2343, show that it is no longer necessary to prove that cross‐border movement has been exercised on the facts of the case, but merely that inter‐State movement is going to be impeded as a result of the application of the measure; this means that it is not necessary to be able to identify specific goods that are going to be affected by the measure. This approach appears to have been initiated in the context of Article 56 TFEU, where a restriction could be established, irrespective of whether an identifiable recipient could be proved; i.e. it was sufficient if the potential provision of cross‐border services was likely to be impeded. For an explanation of the latter see V. Hatzopoulos, ‘Recent Developments of the Case law of the ECJ in the field of services’, (2000) 37 CMLRev 43, at p. 58; V. Hatzopoulos and T.U. Do, ‘The case law of the ECJ concerning the free provision of services: 2000‐‐2005’, (2006) 43 CMLRev 923, at p. 925. It should be noted that this approach is not ‘revolutionary’ since it is implicit in the Dassonville formula (supra note 43), which includes within the scope of Article 34 TFEU, measures which may merely indirectly or potentially impede the free movement of goods. 21 applied to goods that are imported from, or exported to, other Member States.122 Hence, in the context of the free movement provisions, the Court has maintained the traditional reading of the term ‘restriction’ as ‘restriction to inter‐State movement’, with the consequence that many instances of reverse discrimination continue to emerge, following the delivery of ECJ judgments which merely require Member States to stop applying restrictive national measures to goods that move between Member States.123 Therefore, the Court has not transplanted the approach that it follows with regards to customs duties to situations involving the application of the free movement provisions: it has refused to extend the scope of the free movement provisions to cover restrictions to intra‐
State movement and it has not, even, extended the notion of ‘restriction’ in this context to cover restrictions to intra­State movement, when otherwise reverse discrimination would emerge. b) Restrictions to ‘passport movement’ In the early years of the new millennium, the Court extended the scope of (at least some of) the free movement provisions, to encompass restrictions to, what is called, ‘passport movement’. This was firstly done in a free movement of workers case – Collins124 – and has, since then, been followed in a couple of citizenship cases (Chen, Garcia Avello).125 ‘Passport movement’ is said to exist when a national of one Member State resides in another Member State, without previously having exercised movement between two Member States. For instance, in Collins the eponymous applicant was a dual Irish‐US citizen who had never lived in the EU (bar from a short period in the UK twenty years before, which, thus, did not count) and moved to the UK directly from the US to look for work. The Court’s classic approach would require that there be movement between Member States126 and, naturally, a restriction to such movement, in order for the free movement provisions to apply. However, in Collins the Court 122 See, among others, Joined Cases C‐277, 318‐319/91, Ligur Carni, [1993] ECR I6621; Case C‐21/88, Du Pont de Nemours, [1990] ECR I‐889; Case C‐67/97, Bluhme, [1998] ECR I‐
8033; Joined cases C‐1 and 176/90, Aragonesa, [1991] ECR I‐4151; C‐47/90, Delhaize, [1992] ECR I‐3669; Case C‐388/95, Belgium v. Spain, [2000] ECR I‐ 3123; Case C‐108/01, Consorzio del Prosciutto di Parma, [2003] ECR I‐5121. 123 There is a plethora of such instances of reverse discrimination in the context of free movement. See, for instance, Case 407/85, 3Glocken, [1988] ECR 4233; Waterkeyn, supra note 66; Flemish Care Insurance scheme case, supra note 65. 124 Case C‐138/02, Collins v. Secretary of State for Work and Pensions, [2004] ECR I‐2703. Chen, supra note 49; Garcia Avello, supra note 13, para. 27. Of course, in recent cases like Pistre (supra note 121), the Court appears to have focused on the question whether the contested measure is capable of impeding free, inter‐State, movement and no longer insists on the existence of inter‐State movement on the facts. In Pistre, the preliminary ruling emerged from a criminal prosecution in France of French producers of meat products which were destined for the French market. Obviously, the situation was confined within the French borders and would, thus, appear to be purely internal. Nonetheless, because of the particular circumstances of the case, it was proved that the measure, even when applied to domestic goods in a purely internal situation, was capable of impeding the importation of goods from other Member States and, thus, could amount to a restriction contrary to Article 34 TFEU. 125 126 22 found that the situation involved a sufficient cross‐border element due to the fact that Collins was an Irish citizen looking for work in the UK. Similarly, in Chen and Garcia Avello, it was enough that the children were holders of the passport of another Member (Chen), or of another Member State as well (Garcia Avello), for Articles 21 and 20 TFEU (respectively) to apply. The acceptance of ‘passport movement’ as a sufficient cross‐border element is important in that it illustrates that the requisite cross‐border element may no longer be satisfied merely by proof of an impediment to the exercise of inter‐
State movement. In other words, although the free movement provisions still appear to be requiring a cross‐border element, this does not have to be a restriction on inter‐State movement. Yet, it is not very clear from the relevant case‐law what has been the connection, in such cases, between the contested measure, the facts of the case and the aims of the relevant free movement provision. Clearly, the contested measures – when applied in the particular factual setting pertaining in the case in question – were incapable of impeding the exercise of inter‐State movement, because no inter‐State movement was exercised, or was going to be potentially exercised, in the first place. Collins was moving from the US directly to the UK and there is no evidence that he even contemplated a move to another EU Member State; and even if he did, the impugned UK rules on job‐seekers’ allowance would clearly be incapable of impeding that movement to another Member State. Baby Chen was born in Northern Ireland (i.e. in the UK) and was relying on EU law in order to be able to reside in another part of the UK (Wales). The Garcia Avello children were born and had always resided in Belgium and there was no evidence that there were concrete plans to move to another Member State in the future. Accordingly, the measures in the ‘passport movement’ cases cannot, appropriately, be considered ‘restrictions’ within the meaning traditionally applied in the context of the free movement provisions. Nonetheless, someone might say that in these cases, the Court initiated a new approach under which the scope of the free movement provisions is extended to cover restrictions to the right of nationals of one Member State to work, reside or, generally, to exercise any other right bestowed by the free movement provisions, in the territory of another Member State. In other words, the Court may have – implicitly – decided to interpret the free movement provisions as bestowing a right to move and a right to work, or a right to move and a right to reside, as opposed to, solely, a right to work after moving or a right to reside in a Member State other than the one of which the nationality is possessed, as a result of exercising free moving.127 This should be distinguished from a purely internal situation, like the one that was at issue in the Flemish Care Insurance Scheme case128 and which, it was argued by Advocate General Sharpston, should be included within the scope of the free movement provisions. In the ‘passport movement’ cases, there is a cross‐border element and, in effect, the end result 127 128 See para. 144 of the Opinion of Advocate General Sharpston in the Flemish Care Insurance Scheme case, supra note 65; para. 80 of the Opinion of the same Advocate General in Zambrano, supra note 75. Supra note 65. 23 sought to be achieved by the free movement provisions, is achieved: in other words, a national of one Member State is given the right to live, work etc, in the territory of another Member State. Conversely, in the Flemish Care Insurance Scheme case, the situations that were found to be purely internal, did not involve a cross‐border element in that they involved Belgian nationals wishing to live and work in Belgium. One could, therefore, say that the now broader aim of the free movement provisions is to ensure that Member State nationals can exercise the rights bestowed by EU law in the territory of another Member State. However, such an expansion of the scope of the free movement provisions, and, in particular, of the interpretation of the notion of ‘restriction’ will tend to be problematic, since ‐ if not further refined – it is likely to lead to an overextension of the scope of the free movement provisions at the expense of national regulatory autonomy. If the Court, indeed, wishes to go down this route, it should say so expressly and, at the same time, it must provide a clearer definition of the term ‘restriction’ if this will, now, not be solely taken to refer to restrictions to free movement. In fact, an indication of how the effect of this case‐law can be limited, can be gathered from the three cases mentioned above: in two of the cases, the Court considered whether there was a restriction to the right of residence (Chen) or the right to have access to the employment market of the host State (Collins), these both being restrictions to the enjoyment of primary rights granted by the relevant free movement provisions: Article 21 TFEU expressly provides a right of residence and Article 45 TFEU provides mainly (but not solely) the right to have access to the employment market of other Member States. In this case, there was no reference to ‘discrimination’ and the Court was happy to find a violation of the relevant provisions, by concluding that the exercise of these rights was impeded. However, in Garcia Avello, which concerned a right which is secondary to the primary rights enjoyed under the free movement provisions (the right to have your surname registered in accordance with the rules of another Member State), the Court found that there was a violation of Article 20 TFEU (together with Article 18 TFEU) after finding that there was discrimination against Union citizens who held dual‐ as opposed to merely Belgian‐ nationality; the rights under EU law of the children in Garcia Avello were violated, because ‘the difficulties specific to their situation’ which emerged from the fact that they held dual (as opposed to sole) nationality, were not taken into account.129 Hence, the Court may now be wishing to extend the scope of the free movement provisions to cover a) (discriminatory or non‐discriminatory) restrictions to inter‐State movement (the ‘traditional approach’); b) restrictions to intra‐State movement when, otherwise, reverse discrimination will emerge as a result of the partial application of EU law (the ‘Lancry approach’ – at the moment only applicable in the area of customs duties); and c) (discriminatory or non‐
discriminatory) restrictions to the exercise of (primary) rights provided by the 129 Garcia Avello, supra note 13, paras. 37‐38. Advocate General Kokott in her Opinion in Case C‐434/09, McCarthy, pending, provided another interesting reading of the ‘passport movement’ cases. 24 free movement provisions or discriminatory restrictions to the exercise of (secondary) rights provided by the free movement provisions, when these rights are exercised by a national of one Member State in the territory of another Member State (the ‘passport movement’ approach). And since, according to this thesis, ‘restriction’ would, now, include an impediment to the exercise of rights bestowed by EU law by a national of one Member State in the territory of another Member State (as opposed to merely free movement), the notion of ‘discrimination’ would have to be re‐read in the light of this. Accordingly, any form of discrimination which impedes the exercise of EU rights130 by nationals of one Member State in the territory of another, should be caught by the free movement provisions. c) Market freedoms and restrictions to the exercise of an economic activity in a cross‐border context As already explained, the Court’s traditional approach with regards to the market freedoms, has been to require an impediment to inter‐State movement that was exercised for an economic purpose, in order for a situation to be brought within their scope. Accordingly, national measures that treat economic actors who move to another Member State for the purpose of exercising an economic activity there, worse than if they had stayed within their State of origin, have always been prohibited. In the area of the free movement of workers and establishment, such restrictions have mainly been established in situations involving ‘frontier workers’ (i.e. persons who transferred the base of their economic activity to another Member State but maintained their residence in the State of origin).131 In the second half of the previous decade, the Court departed from its strict adherence to the above cross‐border element, and dispensed with the requirement that the movement that is hampered as a result of the application of the contested measure, has to have an economic aim. This happened in a group of cases involving ‘reverse frontier workers’,132 which I have called the ‘Ritter‐
Coulais saga’ and takes its name from the eponymous case that was the first where the Court followed this approach.133 In this group of cases, Member State nationals who continued exercising an economic activity in their home State, but moved their residence to another Member State, were held to fall within the scope of the market freedoms and the relevant market freedom was found to be 130 131 132 133 Which are provided by the free movement provisions. Case C‐57/96, Meints, [1997] ECR I‐6689; Case C‐336/96, Gilly, [1998] ECR I‐2793; Case C‐213/05, Geven, [2007] ECR I‐6347; Case C‐279/93, Schumacker, [1995] ECR I‐225; Case C‐80/94, Wielockx, [1995] ECR I‐2493; Case C‐232/01, Van Lent, [2003] ECR I‐
11525. This is a term borrowed by another commentator – see O’Brien, ‘Annotation of Hartmann, Geven and Hendrix’, (2008) 45 CMLRev. 499. Ritter­Coulais, supra note 68. 25 violated, even though the movement that was going to be impeded was exercised for a non‐economic purpose.134 The important question, for our purposes, is, admittedly, what is the link that the Court found in these cases to have been established with the aim of the market freedoms. Clearly, the scope of the market freedoms could not simply be stretched to cover any situations involving an impediment to inter‐State movement that was exercised for a non‐economic purpose; after all, this is the ‘job’ of Article 21 TFEU. Moreover, in all the cases under examination, the Union citizens that were involved were economically active (albeit in their home State) and, thus, this must have served to bring them within the scope of the market freedoms. Hence, the most probable underlying rationale for this line of case‐
law is a desire to ensure that Union citizens are free to exercise an economic activity in a cross‐border context. This can, in fact, be gathered from the Court’s reasoning in this line of case‐law, where it is stated: ‘any Community national who, irrespective of his place of residence and his nationality, has exercised the right to freedom of movement for workers and who has been employed in a Member State other than that of residence falls within the scope of Article [45 TFEU]’.135 Accordingly, the Court’s aim in this line of case‐law may have been to extend the scope of the market freedoms to catch, not only restrictions to the exercise of free movement for an economic purpose, but, also, restrictions to the exercise of an economic activity in a cross‐border context: this would enable the market freedoms to be used, inter alia, for prohibiting national measures which, although they do not hamper free movement which has an economic purpose, they nonetheless restrict the freedom of market actors to pursue an economic activity in a situation which presents a cross‐border element (e.g. residence in another Member State). Obviously, this is a broader form of ‘restriction’ than the one classically prohibited in this context and is, thus, capable of including within the scope of the market freedoms more situations and, as a result, limit the number of instances of reverse discrimination that can emerge. And although this might not appear surprising, given the Court’s tendency – as seen before – of expanding the scope of the free movement provisions to catch situations which would, otherwise, be considered purely internal, its practical usefulness may appear questionable, given that some of these measures might, anyway, be found to be contrary to Article 21 TFEU, as restrictions to free movement.136 134 For other cases in this group see C‐212/05, Hartmann, [2007] ECR I‐6303; Case C‐
287/05, Hendrix, [2007] ECR I‐6909; Case C‐470/04, N. v. Inspecteur van de Belastingdienst Oost/kantoor Almelo, [2006] ECR I‐7409; Case C‐527/06, Renneberg, [2008] ECR‐7735. For an analysis of this line of case‐law see A. Tryfonidou, ‘In search of the aim of the EC free movement of persons provisions: Has the Court of Justice missed the point?’, (2009) 46 CMLRev. 1591. 135 See, inter alia, Ritter­Coulais, supra note 68, para. 31. For a discussion of this see A. Tryfonidou, supra note 134, at pp. 1613‐1614. 136 26 d) Cutting the umbilical cord between ‘discrimination’ and ‘restriction’ in a Citizens’ Europe: The birth of discrimination as a quasi‐constitutional principle in EU law It is true that since the 1970s, the persons market freedoms were read in a way which took into account the fact that their beneficiaries were not, merely, factors of production but, also, human beings. This was, after all, reflected in secondary legislation in the area which, inter alia, provided family reunification rights to migrant economic actors, as well as rights to the family members themselves, once they were given access to the host State.137 The major contributor to the ‘humanisation’ of migrant economic actors was, nonetheless, the Court of Justice. In some of its (proto‐citizenship)138 case‐law, the prohibition of nationality discrimination, as was embodied in primary and secondary legislation, was read in a way which appeared to be completely separated from any requirement of a link between the discrimination suffered and an impediment to cross‐border movement that was exercised for an economic purpose; and this led many commentators to argue that, long before the introduction of the status of Union citizenship by the Treaty of Maastricht, the Court had created an incipient form of European citizenship.139 The classic examples often cited, are cases where Article 7(2) of Regulation 1612/68 was interpreted,140 the free movement of students case‐law,141 as well as cases involving service recipients, such as the well‐known Cowan ruling.142 In this case‐law, the Court appears to have tentatively decoupled the notion of ‘discrimination’ from that of ‘restriction’ to 137 138 139 140 141 142 Directive 73/148/EEC on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, [1973] OJ L172/14 (repealed by Directive 2004/38); Regulation 1612/68/EEC on freedom of movement for workers within the Community, [1968] OJ L257/2 (amended by Directive 2004/38). This term is ‘borrowed’ from Jo Shaw – see J. Shaw, ‘Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism’, Edinburgh School of Law Working Paper Series, Paper 2010/14, at p. 9. See, for instance, R. Plender, ‘An incipient form of European Citizenship’ in F. G. Jacobs (ed), European Law and the Individual (North Holland, 1976); A. Evans, ‘European Citizenship: A Novel Concept in EEC Law’, (1984) AJCL 679. For a view that ‘both the case law of the European Court of Justice and the secondary legislation spelling out the implications of free movement of workers were underpinned by the view that free movement of workers was to be properly constructed as a vehicle of not only economic but also political integration’ see A. José Menéndez, ‘European Citizenship after Martínez Sala and Baumbast: Has European Law Become More Human but Less Social?’ in M. Poiares Maduro and L. Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart, 2010), at pp. 365‐373. See, for instance, Case 32/75, Fiorini (neé Cristini), [1975] ECR 1085; Case 65/81, Reina, [1982] ECR 33; Case 59/85, Reed, [1986] ECR 1283; Case 137/84, Mutsch, [1985] ECR 2681; Case 157/84, Frascogna, [1985] ECR 1739; O'Flynn supra note 31. For authoritative analyses of the Court's jurisprudence concerning Article 7(2) of Regulation 1612/68 see D. O'Keeffe, ‘Equal Rights for Migrants: the Concept of Social Advantages in Article 7(2), Regulation 1612/68’, (1985) 5 YEL 93; J. Steiner, ‘The Right to Welfare: Equality and Equity under Community Law’, (1985) 10 ELRev. 21, at pp. 35‐39. Case 293/83, Gravier, [1985] ECR 593. See also Case C‐357/89, Raulin, [1992] ECR I‐
1027. Case 186/87, Cowan, [1989] ECR 195. 27 free movement, recognising that the human aspect of the persons (market) freedoms could not, really, be ignored. Accordingly, through this case‐law, the principle of discrimination acquired a quasi‐constitutional status which was, later, going to be affirmed in the Court’s citizenship case‐law.143 Despite the fact that this decoupling of the notion of ‘discrimination’ from that of ‘restriction’, does make sense especially following the introduction of the status of Union citizenship, it has, however, led to a number of problems. First of all, the Court has never expressly stated in the context of the market freedoms that the notion of discrimination is entirely decoupled from that of ‘restriction’. Although this appears to be the Court’s message in a relatively long line of case‐law,144 the Court has never been bold enough to make it clear. For instance, in the recent Ibrahim and Teixeira cases the Court still makes reference to the importance that the integration of the worker’s family has for enabling the worker to move, rather than saying it expressly that it is more concerned with the underlying discrimination against school‐going children who hold the nationality of another Member State.145 Secondly, if the Court, as it seems, intends to include instances of discrimination within the scope of the market freedoms, even when they are unrelated to the free movement aims of these provisions, it should say so expressly and, in fact, explain what are, now, the broader aims of the free movement provisions which, in their turn, will inform the interpretation of the terms ‘restriction’ and ‘discrimination’. The above concerns relate to another problematic aspect of this case‐law. In the early 1990s, Advocate General Jacobs, possibly being inspired by the impending introduction of the status of Union citizenship, made the following (by now) famous pronouncement in the Konstantinidis case: ‘a Community national who goes to another Member State as a worker or self‐employed person under [Articles 45, 49 or 56 TFEU] is entitled not just to pursue his trade or profession and to enjoy the same living and working conditions as nationals of the host State he is in addition entitled to assume that, wherever he goes to earn his living in the European Community, he will be treated in accordance with a common code of fundamental values, in particular those laid down in the European Convention on Human Rights. In other words, he is entitled to say ‘civis europeus sum’ and to invoke that status in order to oppose any violation of his 143 See, for instance, Grzelczyk, supra note 24, at para. 31 (and the other cases cited there), where the Court pointed out that Union citizenship is the fundamental status of nationals of the Member States and, as such, ‘enables’ those ‘who find themselves in the same situation to enjoy the same treatment in law, irrespective of their nationality’. 144 Cowan, supra note 142; Gravier, supra note 141; and, more recently, Case C‐164/07, Wood, [2008] ECR I‐4143 and Case C‐310/08, Ibrahim, Judgment of 23 February 2010, not yet reported and Case C‐480/08, Teixeira, Judgment of 23 February 2010, not yet reported. Ibrahim, supra note 144, para. 55; Teixeira, supra note 144, para. 66. For an analysis of these cases see P. Starup and M. Elsmore, ‘Taking a logical step forward? Comment on Ibrahim and Teixeira’, (2010) 35 ELRev. 571; and the case‐note by C. O’Brien in (2011) 48 CMLRev. 203. 145 28 fundamental rights’.146 This appears to be taking the Court’s approach of decoupling discrimination from ‘restriction to free movement’ even further, by requiring the host State to respect the fundamental human rights of the nationals of other Member States even in situations where there is no discrimination of any type, and even in situations where the violation of the said rights would not, in any way, relate to the exercise of free movement and, thus, would be incapable of restricting such movement. Although, at the time, the Court was rather hesitant and did not follow the suggestion of its Advocate General, in recent years it seems that it has (implicitly) followed this suggestion in its family reunification case‐law147 where it has been willing to hold that the free movement provisions of the Treaty are violated as a result of the refusal of family reunification rights, even in cases that appear to lack any connection between the said family reunification rights and the exercise of cross‐border movement. As argued elsewhere, in this case‐law, the Court’s main concern may have been to protect the right to family life of the migrant Union citizen, instead of the right to free movement of that person.148 If this case‐law is viewed, purely, from a humanitarian point of view, it should be applauded since, more situations are brought within the scope of the free movement provisions and, thus, more Union citizens are given rights which they would, otherwise, be denied. However, this is problematic because it makes it entirely unclear what is, now, the aim of the free movement provisions – clearly, it is not, merely, to remove restrictions to inter‐State movement (or, as regards the market freedoms, inter‐State movement for an economic purpose); what, else, however, is sought to be achieved by these provisions? Initially someone might say that, in addition to free movement and the removal of discrimination which hampers free movement, the said provisions also aimed at prohibiting any discrimination on the grounds of nationality, suffered by migrants in the host State. With cases like Carpenter, however, which involve genuinely non‐
discriminatory national measures, it is unclear where the scope of the free movement provisions ends, and, correspondingly, where national competence begins. If even the slightest cross‐border element now suffices for bringing a situation within the scope of the free movement provisions, then it is questionable whether there is any space left for national autonomy. As Nic Shuibhne has pointed out, ‘[t]ransnational life or even small instances of transnational life are no longer remarkable or exotic, but a normal dimension of twenty first century trade’.149 The above‐mentioned case‐law is, also, problematic at another level. When the Court held that the free movement provisions prohibit nationality discrimination, even when this did not lead to restrictions to free movement, this merely required the host State to extend the treatment to which it subjected its 146 147 148 149 Para. 46 of the Opinion of Advocate General Jacobs in Case C‐168/91, Konstantinidis, [1993] ECR I‐1191. Supra note 81. A. Tryfonidou, supra note 81. N. Nic Shuibhne, supra note 15, at pp. 104‐105. 29 own nationals, to nationals of other Member States. However, in cases like Carpenter, where the Court requires the host Member State to grant to nationals of other Member States rights which are above and beyond the rights that it bestows on its own nationals who are in a purely internal situation, reverse discrimination emerges. And in this context, the occurrence of reverse discrimination is even more problematic, since it does not appear to be based on a rational150 distinction between situations that involve a sufficient link with the aim(s) of the free movement provisions, and situations which lack such a link. After all, we appear to be unclear, in the first place, as to what is the link required, in order for the free movement provisions to apply. As a conclusion, I would say that the Court’s decision to, slowly, develop, even in the context of the market freedoms, a quasi‐constitutional principle of discrimination, is not problematic. This is so, especially if viewed in light of the fact that the Court has expressly noted that the market freedoms should now be (re‐)read in the light of Union citizenship.151 What is problematic, however, is the fact that the Court has gone even further, and extended the scope of the market freedoms to encompass national measures which neither discriminate (and, as a result, create a restriction), nor discriminate as such, nor create a (non‐
discriminatory) restriction to free movement, but which, nonetheless, violate the fundamental human rights of migrants. As explained, this is problematic because it unwarrantly extends the scope of the free movement provisions and, correspondingly, results in the shrinking of the space left for the exercise of Member State autonomy, without this appearing to be, in any way, necessary for ensuring the achievement of the aims of the free movement provisions. Moreover, it appears problematic because, although at first glance it may appear as a ‘cure’ for reverse discrimination in that it includes more situations within the scope of EU law, in the end, it exacerbates the injustice caused by reverse discrimination, since it makes it even more difficult to justify the latter as a form of differential treatment that is a necessary evil of a system of multi‐level governance. 150 151 As explained by Advocate General Sharpston, ‘[t]here must be a boundary to every rule granting an entitlement’. Hence, reverse discrimination has traditionally been considered as justified by the need to limit the scope of the free movement provisions to situations that involve a sufficient link with their aim. See para. 143 of the Opinion of Advocate General Sharpston in Zambrano, supra note 75. Collins, supra note 124, para. 63; Ioannidis, supra note 38, para. 22; Joined Cases C‐
22&23/08, Vatsouras and Koupatantze, [2009] ECR I‐4585, para. 37; Joined Cases C‐
482/01 and C‐493/01, Orfanopoulos and Oliveri, [2004] ECR I‐5257. 30 V. DECOUPLING CITIZENSHIP RIGHTS FROM A RESTRICTION REQUIREMENT In this last section of the contribution, I will consider two very recent rulings of the Court of Justice (Grand Chamber), which have grabbed the attention of academics, members of the Court of Justice, as well as of the public at large. These are the judgments in Rottmann152 and Zambrano153 where the Court was called upon to consider the application of the citizenship provisions in, respectively, a situation that lacked a cross‐border element, and a situation where, again, there was no cross‐border element and the non‐application of EU law would give rise to reverse discrimination concerning the grant of family reunification rights. The Court’s judgments and, in particular the Opinion of the Advocate General in the latter case, illustrate that the introduction and development of the status of Union citizenship have meant that reverse discrimination is no longer the peripheral issue it once appeared to be. Yet, despite this, the Court in its rulings preferred to continue making circles around this issue, rather than take the further step of resolving it once and for all. As will be seen, the Court in its judgments opted for a generous interpretation of Article 20 TFEU in order to include within the scope of EU law situations which would, otherwise, fall to be treated at national level and would thus yield a less favourable outcome for the individuals concerned. Rottmann arose from a reference for a preliminary ruling which was made in connection with proceedings between Dr Rottmann and the German authorities, concerning the latter’s withdrawal of the naturalisation of the former. Dr Rottmann was born in Austria in 1956 and acquired Austrian nationality by birth. In 1995 he moved his residence to Germany and in 1999 he became a naturalised German citizen. His naturalisation in Germany had the effect, in accordance with Austrian law, of causing him to lose his Austrian nationality. In August 1999, the German authorities were informed that criminal proceedings for occupational fraud had been instigated against Dr Rottmann in Austria in 1995 and that in 1997 an arrest warrant had been issued against him. As a consequence, the German authorities decided to withdraw Dr Rottmann’s naturalisation with retroactive effect, on the grounds that the applicant, when applying for naturalisation, had not disclosed the fact that he was the subject of judicial investigation in Austria and that he had, in consequence, obtained German nationality by deception. The loss of German nationality would mean that Dr Rottmann would lose, also, his status of Union citizen, unless the Austrian authorities would enable him to recover his original Austrian nationality. The main question that emerged – and was referred to the ECJ – was whether the 152 153 Case C‐135/08, Rottmann, Judgment of 2 March 2010, not yet reported. Annotated by D. Kochenov, (2010) 47 CMLRev. 1831, S. Mantu, (2010) 24 IANL 182 and T. Konstadinides, ‘La fraternite europeene? The extent of national competence to condition the acquisition and loss of nationality from the perspective of EU citizenship’, (2010) 35 ELRev. 401. Supra note 75. 31 German authorities were in violation of EU law and, in particular, of Article 20 TFEU, when they decided to withdraw Dr Rottmann’s nationality. Advocate General Poiares Maduro, devoted a considerable part of his Opinion in the case to considering whether, and concluding that, there was a sufficient cross‐border element.154 The Court, however, considered it unnecessary to delve into such an examination, as it found that the situation was not a purely internal one but, rather, fell within the ambit of EU law, despite the lack of a cross‐border element. In its judgment, the Court started by recalling that, whilst the bestowal of nationality still falls within Member State competence, the latter have to comply with EU law when exercising their powers in this field. Without further ado, the Court, then, continued to stress that ‘[i]t is clear that the situation of a citizen of the Union who, like the applicant in the main proceedings, is faced with a decision withdrawing his naturalisation, adopted by the authorities of one Member State, and placing him, after he has lost the nationality of another Member State that he originally possessed, in a position capable of causing him to lose the status conferred by Article [20 TFEU] and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law’.155 The above reasoning illustrates that, in the Court’s view, the mere fact that a Member State national would be deprived of his status as a Union citizen and, concomitantly, of his rights under EU law, sufficed for activating EU law protection and for requiring the said Member State to subject its decision to withdraw its nationality to a review for its compliance with the general principles of EU law. This demonstrates that Article 20 TFEU – the provision which established the status of Union citizenship and which attaches to Union citizens the rights bestowed by the Treaties – is not limited to prohibiting ‘restrictions’ and ‘discrimination which leads to restrictions’ or, even, plainly ‘discrimination’, but rather applies to Member State actions which lead to the loss of Union citizenship and, consequently, to the refusal of the existence of rights under EU law. Such a reading of Article 20 TFEU does not appear to be too off the tangent, as, it should be recalled, this provision does not make any reference to ‘discrimination’ or ‘restrictions’ or, generally, a right to free movement, but, rather, appears to be a provision of a ‘constitutional’ nature. This is a provision that plays a more primary role than that played by the free movement provisions, which appear to be still subject to – and defined by – the notions of ‘restriction’ and ‘discrimination’. In addition, since it attaches to Union citizens the rights (and duties) provided for in the Treaties, any Member State which removes these rights and is not justified under EU law, appears to be inhibiting the achievement of its aims. Therefore, Rottmann cannot be considered to be a case where the Court inappropriately extended the scope of Article 20 TFEU to cover a situation which was unrelated to the goals of that provision. 154 155 See paras. 11‐13 of the Opinion of Advocate General Poiares Maduro in Rottmann, supra note 152. Rottmann, supra note 152, para. 42. 32 The question that emerged, nonetheless, was whether this judgment was confined to its own facts (i.e. loss of Member State nationality and, consequently, loss of Union citizenship and with it loss of EU rights), or whether it had broader implications for the way that the scope of EU law is delimited. And as one might have suspected, the Court was inclined to take this further. This happened (almost) one year after the Rottmann judgment was delivered, in the Court’s ruling in Zambrano. In that case, the question was whether EU law required Belgium to recognise that the third‐country‐national parents of two children who were born in Belgium, held (only) Belgian nationality and had always resided in Belgium derived a right to reside in Belgium from EU law. Under the Court’s orthodox approach this would clearly be a classic example of a purely internal situation and thus, neither the market freedoms nor Article 21 TFEU would be applicable. In fact, from the Court’s judgment it appears that the situation was, indeed, not considered as falling within the scope of any of the free movement provisions since, clearly, there was neither an exercise of, nor a ‘restriction’ to, free movement, and there was no other cross‐border element. Instead, the Court preferred to transpose the approach followed in Rottmann in this context, and, citing the above case, it held that ‘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’.156 The Court, in particular, explained: ‘A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect’.157 This judgment answered in the negative, the question whether Rottmann was confined to its own special facts, which involved loss of Union citizenship and, as a result, a complete denial of EU rights. With this ruling, the Court appears to be making it possible for any situation which is purely internal and, as such, cannot be brought within the scope of the free movement provisions, to have to be assessed for its compliance with EU law and, in particular, the general principles of EU law. Put simply, the Court in this ruling may have been trying to resolve the reverse discrimination conundrum through the back door – purely internal situations will, now, be brought within the scope of EU law through Article 20 TFEU and the ECJ may be called upon to rule whether there is a violation of EU law in such situations. 156 157 Zambrano, supra note 75, para. 42. It could be said that this is not ‘revolutionary’ since a similar requirement is laid down by Article 52(1) of the EU Charter of Fundamental Rights which provides that ‘[a]ny limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’. Zambrano, supra note 75, para. 43. 33 These recent judgments, therefore, illustrate that the Court still insists on the existence of a cross‐border element (however artificial) when determining whether a situation falls within the scope of the free movement provisions. Accordingly, the notions of ‘restriction’ and ‘discrimination’ are still hugely important for determining whether a national measure falls to be assessed for its compliance with these provisions. And since reverse discrimination cannot be covered by any of these notions, when the latter are read in the light of the goals of the free movement provisions, it cannot be found to be in violation of them. The Court has, rather, preferred to establish a new principle which would enable purely internal situations to be included within the scope of EU law and, thus, be assessed for their compliance with the provisions of the Treaty and, perhaps most importantly, with the general principles of EU law. This would further narrow down the space left for the exercise of Member State autonomy and, who knows, perhaps in the near future, the Court might be willing to expressly examine whether reverse discrimination is contrary to Article 20 TFEU and the general EU principle of equality. Yet, the reverse discrimination conundrum remains unresolved, for the time being. 34 VI. CONCLUSION In line with the underlying theme of this edited volume, this contribution sought to explore the notions of ‘restriction’ and ‘discrimination’, as developed in the context of EU free movement law. In particular, the aim of this essay was to consider how these concepts have been defined in this context and how the relationship between them has evolved, using as a case‐study the Court’s jurisprudence on purely internal situations and reverse discrimination. A number of general conclusions can be drawn from the preceding analysis. In EU free movement law, the concepts of ‘restriction’ and ‘discrimination’ are closely intertwined and inter‐dependent. Both concepts are defined and limited by the goals that the free movement provisions seek to achieve. Since, traditionally, the latter provisions have been read as having as their aim the removal of restrictions to the inter‐State movement of persons, products and factors of production, it is only such restrictions that have been caught by the free movement provisions, and it is only instances of discrimination that lead to such restrictions, that have been found to amount to a violation of these provisions. This, after all, provides the rationale that lies beneath the purely internal rule, which is that the free movement provisions should exclude from their scope situations that appear unrelated to their objectives; hence, situations that do not involve discrimination that leads to an impediment to (inter‐State movement) or, simply, restrictions to inter‐State movement, cannot trigger the above provisions. Similarly, since reverse discrimination does not impede the exercise of inter‐State movement, it has been held by the Court that it is a form of differential treatment that escapes the ambit of the free movement provisions. Nonetheless, in recent years, the Court has repeatedly been called upon to provide a solution to the reverse discrimination conundrum. And although, at first glance, it may appear that these calls have fallen on deaf ears – since the Court still refuses to hold that reverse discrimination amounts to a violation of EU law – in reality, they have not. In a long line of cases which can be divided into different groups, the Court has (implicitly) extended the notion of ‘restriction’ to encompass situations which would otherwise be classified as purely internal; in this way, it has prevented the emergence of reverse discrimination, on the particular facts of the case. It should, nonetheless, be underlined that this has been done implicitly, and there has been no ruling of principle, which has clarified how the notion of ‘restriction’ should be interpreted in this context, which would, in its turn determine what additional types of discrimination are, now, prohibited by the free movement provisions and, ultimately, what are the goals that the above provisions seek to achieve. And, although, this case‐law is viewed favourably if considered from a purely humanitarian point of view, it is nonetheless imbued with problems which the Court needs to address. 35 In September 2010, the Court was invited, once more ‘to deal openly with the issue of reverse discrimination’.158 The case of Zambrano, the facts of which involved a purely internal situation where the non‐application of EU law would give rise to reverse discrimination, presented a golden opportunity for the Court, to reconsider this conundrum. Yet, the Court, once more, chose to shy away from this issue, and instead of providing a wholesome solution by holding that reverse discrimination is prohibited by a Treaty provision and/or a general principle of EU law, it ruled (in line with its judgment in Rottmann) that Article 20 TFEU prohibits national measures that deprive Union citizens ‘of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union’; and, most importantly, as can be gathered from the judgment, this is so even when the situation is purely internal to a Member State. Accordingly, Member State nationals (Union citizens) derive various layers of rights from EU law, which can be presented in the form of a concentric circle, having as its core the market freedoms (see the Chart which is annexed). Although the scope of the market freedoms, as well as of the Article 21 right to move and reside, has recently been stretched to include situations that do not involve an impediment to inter‐State movement/movement for an economic purpose, it, nonetheless, still requires a cross‐border element in order for a situation to be covered. In fact, it is still the notions of ‘restriction’ and ‘discrimination’, that determine whether a national measure is caught by these provisions (Layers 1 and 2). Through the use of Article 20 TFEU, however, the Court has created a broader, quasi‐constitutional, layer of entitlements for Union citizens (Layer 3), who are now given rights by EU law (simply) because they are Union citizens and, not, because they have moved or, more broadly, because they have contributed to the aims of the Treaty. Hence, in this outer layer of rights, the concepts of ‘restriction’ and ‘discrimination’ play no significant role; or, at least, we can certainly say that they do not play an exclusive role. Moreover, since the rights given in this ‘layer’ are not, purely, the means to an end (like in layers 1 and 2), but are ends in themselves, there are no ‘membership’ criteria which separate ‘outsiders’ from ‘insiders’ by using, as a criterion, their contribution to the achievement of specific ends: all Union citizens fall within the scope of Article 20 TFEU, without needing to prove anything else such as the exercise of cross‐border movement, the contribution to the internal market aims of the EU or, in general, some kind of a cross‐border element. So far, we know from the Court’s case‐law that Article 20 TFEU prohibits national actions that entirely strip a Union citizen of his EU rights, unless this is justified and in accordance with the general principles of EU law (Rottmann). We also know that Article 20 TFEU catches national measures which deprive Union citizens of the genuine enjoyment of the substance of their EU citizenship rights. And although the Court in Zambrano preferred to leave the ‘reverse discrimination (Pandora’s) box’ unopened, we would not be going too far by saying that in the future, Article 20 TFEU will be able to be used in conjunction with the general principle of equality, to expressly prohibit reverse discrimination. 158 Para. 3 of the Opinion of Advocate General Sharpston in Zambrano, supra note 75. 36 Layer 1: Market Freedoms (restrictions + discrimination) ‐ aim: exercise of free movement for an economic purpose or of an economic activity in a cross‐
border context. Layer 2: Article 21 TFEU (restrictions + discrimination) ‐ aim: exercise of inter‐State movement or of a right in a cross‐border context. Layer 3: Article 20 TFEU ('genuine enjoyment of the substance of rights conferred on Union citizens') 37