Reverse Discrimination in EC Law

Erscheinungsjahr 2009
ISBN: 978-90-411-2751-8
Verlag: Wolters Kluwer

Buch, Englisch, Band 64, 292 Seiten, Format (B × H): 167 mm x 252 mm, Gewicht: 674 g

Reihe: European Monographs

The spectre of reverse discrimination arises when it can be shown that a

group is treated more favourably than another group that is normally favoured,

as a consequence of positive action measures. Until recently, EC jurisprudence

has consistently rejected allegations that reverse discrimination emerging in

the context of the Communityand#8217;s internal market policy is an EC problem,

reinforcing its commitment to and#8216;positive actionand#8217; as a facilitator of

cross-border economic activities. However, with the advent of EU citizenship

(in terms of persons) and the formal completion of the internal market (in

terms of trade), it is now possible to meaningfully ask: Is reverse

discrimination still a permissible form of differential treatment in the

Community? Or should it now be considered, first, an unjustified difference in

treatment between Union citizens (and thus a violation of the general

principle of equality), and, second, an unacceptable distortion of the

conditions of competition in a properly-functioning market?

This important new book opens with an in-depth analysis of the and#8216;linking

factorand#8217; test that has implicitly been developed by the European Courts for

determining whether a situation is purely internal to a Member State or

whether it qualifies for EC protection. There is a detailed explanation of how

the Court has traditionally applied this test in its case-law (e.g. in family

reunification and educational qualification cases), and of the problems

emerging from the application of this test. A presentation of the Courtand#8217;s

formal stance on reverse discrimination is also provided. With detailed

reference to the case-law of the European Community Courts (including selected

jurisprudence of national courts), the author shows how recent developments in

internal market law have already affected the Courtand#8217;s traditional stance

towards purely internal situations and reverse discrimination, and that these

developments can now be used in support of the argument that reverse

discrimination is an incongruity in the contemporary EC.

Then, the author provides an in-depth analysis of two of the post-Maastricht

developments in the context of free movement: the establishment of the status

of Union citizenship by the Treaty of Maastricht in 1993 and the development

of that status through the Court's recent jurisprudence; and the formal

completion of the internal market in 1993, as required by the provisions

inserted into the EC Treaty by the Single European Act. Focusing on the

central issue of whether reverse discrimination is and#8211; and should remain and#8211;

outside the scope of EC law, the author explains what has been the impact of

each of these developments on the question of the permissibility of reverse

discrimination in EC law.

A brief discussion of the available solutions to the problem and their

advantages and disadvantages concludes the presentation.

This is a ground-breaking study in an area of European law that has received

scant academic attention so far and is just beginning to be explored. In it,

scholars, policymakers and practitioners will discover a firm foundation from

which to pursue and ultimately define the limits of reverse discrimination in

EC law.

Autoren/Hrsg.

Tryfonidou, Alina

Fachgebiete

• Rechtswissenschaften Internationales Recht und Europarecht Europarecht Europäisches Handels-, Wirtschafts- und Gesellschaftsrecht, Währungsrecht
• Rechtswissenschaften Internationales Recht und Europarecht Europarecht Europäisches Öffentliches Recht (inkl. EMRK)
• Rechtswissenschaften Internationales Recht und Europarecht Europarecht Europäisches Arbeits- und Sozialrecht

Inhaltsverzeichnis

Acknowledgements. List of Abbreviations. 1. Introduction. Part I: The Court’s Traditional and New Approaches to Purely Internal Situations. 2. The Traditional Approach of the Court. 3. The Court’s New Approaches to a Link with EC Law: Responding to the Problems of the Traditional Approach. Part II: Reverse Discrimination as an Incongruity in the Contemporary EC. 4. Reverse Discrimination and the Free Movement of Persons: An Incongruity in a Citizens’ Europe. 5. Reverse Discrimination and EC Trade: An Incongruity in a Genuine Internal Market. 6. Conclusion. List of References. Table of Cases and Secondary Legislation. Table of Treaty Articles. Index.