In EU law, reverse discrimination occurs when the national law of a member state of the European Union provides for less favourable treatment of its citizens or domestic products than other EU citizens/goods under EU law. Since the creation of the Single Market, the right of EU citizens to move freely within the EU with their families. The right to free movement was codified in EU Directive 2004/38/EC which applies across the whole EEA. However, reverse discrimination is permitted in EU law because of the legal principle of subsidiarity, i.e. EU law is not applicable in situations purely internal to one member state. This rule of purely internal situation does not apply if the EU citizens can provide a cross-border link, e.g. by travel or by holding dual EU citizenship. EU citizens and their families have an automatic right of entry and residence in all EU countries except their own, with exceptions created by a cross-EU state border link. For example, an Irish citizen living in Germany with his family before returning to Ireland can apply for EU family rights. This is referred to as the Surinder Singh route. The cross-border dimension has been the focus of many court cases in recent years, from McCarthy to Zambrano.
There are different treatments across national laws in the EU, with some EU states such as Italy making equality a legal requirement, while other EU states such as Ireland and Germany allow such reverse discrimination.
Case law
ECJ Case C‑34/09 Zambrano
Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred on them by that status: .
Advocates General's opinion play an important role and are referred to in later cases.
Distinguish this from : A Union citizen who is a national of more than one Member State does not mean that she has made use of her right of freedom of movement; a risk of deprivation or of any impediment to exercising her rights must be shown.
Naasan Saiedi Cyprus Supreme Court 3 ΑΑ
Judgment
Of course it is not expected that the Directive would provide for a right to Cypriots to reside in their own country and surely we would come down to absurd results if we would accept that the applicant could reside lawfully in any other country of the EU except for Cyprus.
Clearly for reasons of equal treatment of Cypriot citizens with other EU citizens, we cannot but accept that the rights conferred to relatives of nationals of other member states are granted to the relatives of Cypriots, too.
TM & Ors v Minister for Justice, Equality and Law Reform Ireland High Court IEHC 500
Judgment
The High Court found that there was no reverse discrimination against the family because as Irish citizens they were not in the same position as Union citizens exercising EU Treaty rights. In any event, the EU has always recognised the principle of reverse discrimination. Ireland is entitled to treat its own citizens less favourably than other Union citizens who are in a position to rely on specific EU Treaty rights which Irish citizens are not in a position to avail of.
Treatment in member states’ domestic law
Austria
Austria current status is confusing,
The Austrian Constitutional Court ruled in 1997 case of Verfassungsgerichtshof 17 June 1997, No B592/96 against reverse discrimination. But the Austrian legislator reintroduced reverse discrimination in 2005.Dimitry Kochenov (Ed.). EU Citizenship and Federalism Federal Act concerning settlement and residence in Austria (the Settlement and Residence Act – SRA) Federal Law Gazette No. 100/2005 in the version Federal Law Gazette No. 31/2006
Ruling from the Austrian Constitutional Court has said that if the rules governing family reunification of EU citizens in a cross-border situation, are not applied to Austrian nationals because of the purely internal situation, this is a breach of Art 8 & 14 of ECHR without objective and reasonable justification.
The authority concerned measures with reference to the case law of the Administrative Court (see VwGH April 14, 1994, 94/18/0127-0132, September 5, 1996, 94/18/0465-0472, 95/18/0128, February 21, 1996, 95 /21/1248) assigns the same content to the term "EEA citizen" in §28 Aliens Act on the one hand and that in §29 Aliens Act on the other. This obviously means that Austrian citizens are placed at a disadvantage compared to nationals of EEA member states (as defined in Section 28 Para. 1 of the Aliens Act) with the exception of Austria. In the specific context, however, no objective justification can be found for Austrian citizens being placed in such a worse position than foreign nationals. See also the examination decision of the Constitutional Court of February 27, 1997, B3881/95). Above all, one would be like this different treatment discriminatory within the meaning of Art14 iVm. Art 8 ECHR, since an "objective and reasonable justification" for this is not apparent because it obviously does not pursue a legitimate aim.
Binding of the legislature to federal constitutional requirements when implementing community law.
In any case, Section 29 of the Aliens Act is to be interpreted in such a way that the residence permit of third country nationals of all EEA citizens, including the residence permit of third-country nationals of Austrian citizens, is subject to uniform (beneficial) regulations. This alone also corresponds to the requirement arising from Art. 8 in conjunction with Art. 14 of the ECHR to guarantee the rights and freedoms laid down in the ECHR without discrimination. And The problem of reverse discrimination is a matter of internal law of each Member State. In Austria, Belgium and Italy, nationals are protected against reverse discrimination by the national constitution or by the case law of the constitutional court.[Hartkamp, Sieburgh, Devroe (n 4), Case 4.14 (IT).] The effect is that a private party may enjoy similar protection under national law as nationals of other Member States would derive from EU law.
Belgium Belgium avoid reverse discrimination.Conformity Study for Belgium Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States https://200438ecstudy.files.wordpress.com/2013/05/belgium_compliance_study_en.pdf
“Union citizen” (Article 2(1)) Article 40 §2 LAT transposes the Directive’s definition of Union citizen but excludes Belgian citizens.
However, Article 40 ter LAT extends the scope of the legislation to family members of a Belgian citizen in order to avoid reverse discrimination.
Main particularities of the Belgian legal system relating to the transposition of the Directive 2004/38
EDIT: need citation and link to Belgium Law Measures transposing Directive 2004/38 are adopted at the federal level. Article 5, § 1, II, 3° ‘de la loi spéciale du 8 août 1980 de réformes institutionnelle’ provides that: “§ 1er. Les matières personnalisables visées à l'article 59bis, § 2bis, de la Constitution, sont: II. En matière d'aide aux personnes: 3o La politique d'accueil et d'intégration des immigrés.”
Bulgaria
Bulgaria created reverse discrimination
The problem of reverse discrimination in Bulgaria has persisted since accession to the EU and currently the issue is an object of a pending application against Bulgaria before the European Court of Human Rights, as well as on the agenda of the national institutions.
Croatia
We have no supporting data, study, or law papers, other than this paper, which suggests Croatia, like Spain, avoided reverse discrimination.
European Journal of Migration and Law (2019)EU Citizens, Foreign Family Members and European Union Law European Journal of Migration and Law (2019)
EU Citizens, Foreign Family Members and European Union Law
In 2015 the law was widened to include the EU group of family members entitled to facilitation for entry to join also Spanish nationals who had not exercised an EU free movement right. This was also the case in Croatia
Cyprus Cyprus avoid reverse discrimination, albeit after the Supreme Court of Cyprus ruled that it was absurd to create two separate categories, one for EU citizens and one for Cypriots, where Cypriots would have less rights.
Details hereConformity Study for CYPRUS http://200438ecstudy.files.wordpress.com/2013/05/cyprus_compliance_study_en.pdf and here national case law https://acme424.wordpress.com/2013/03/19/national-case-law-reverse-discrimination/
The case law of the Supreme Court of Cyprus has dealt with this issue (Case 1241/06). It has handed down several judgments The cited judgment has stated that it would be absurd to create two separate categories of protection, one for EU citizens and one for Cypriots. Quote from Supreme Court of Cyprus, Review Jurisdiction, Case 1241/06
Czechia Czechia avoid reverse discrimination.Conformity Study for the Czech Republic Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States http://200438ecstudy.files.wordpress.com/2013/05/czech_republic_compliance_study_en.pdf EU Commission report, including analysis of reverse discrimination, on the Free Movement of Workers in the Czech Republic in 2010-2011 https://www.ru.nl/publish/pages/608499/cze_2010-11.pdf
Sect 15a(5) states that the provisions of this Act pertaining to the family member of a European Union citizen also apply to an alien who is a family member of a citizen of the Czech Republic. A contrario, provisions of AA will never be applicable to Czech citizens regardless whether they have exercised or not the right of free movement.
In 2009 the Czech Supreme Administrative Court heldSee Judgment of Supreme Administrative Court, July 23, 2008, No. 4 Ads 40/2008-73 that the position of EU citizen´s family members and Czech citizen´s family members in the respective law must be identical, otherwise it would constitute a discriminatory treatment.
Denmark Denmark created reverse discrimination in their Aliens (Consolidation) Act No. 945 of 1 September 2006 by limiting rights to aliens from other Member states.
Studies of reverse discrimination in Denmark compared cost and processing time for family reunification. Danish citizens under National law pay 20,000 euro and wait 10 months, while EU citizens are free, the maximum delay by EU law is limited to 90 days.
Estonia Estonia avoid reverse discrimination. Ernits, M. et al. (2019). The Constitution of Estonia: The Unexpected Challenges of Unlimited Primacy of EU Law. In: Albi, A., Bardutzky, S. (eds) National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law. T.M.C. Asser Press, The Hague.
Family members of Estonian citizens have more generous rights under Estonian law than the Directive;
In practice EU citizens and their family members and Estonian citizen and their family members are treated in line with the Directive.
Finland Finland created discrimination in their implementation
Despite the differences between the treatment of family members of Finnish citizens who come within the scope of free movement and those remaining outside of it, the issue of reverse discrimination has not raised any considerable debate in Finland.
Aliens Act (2004, as amended by Act 360/2007) The provisions in chapter 10 cover family members of Finnish citizens, only if the Finnish citizen has already made an earlier use of the right of movement – Chapter 10, Section 153, Subsection 4)(4) The Chapter applies to family members of a Finnish citizen if the Finnish citizen has exercised his or her right of free movement under the Directive by settling in another Member State, and the family member accompanies him or her to Finland or joins him or her later. (432/2010)
Germany Germany created reverse discrimination in their law, Zuletzt geändert durch Art. 7 G v. 26.2.2008 I 215 as follows