A typology of reverse discrimination in EU citizenship law

In this Article, Martijn van den Brink sheds new light on one of the longest-running debates in the European Union (EU) citizenship literature: the concept of ‘reverse discrimination’ and the question of whether it is justified. Reverse discrimination has divided EU lawyers into roughly two distinct groups. One group believes that it constitutes an unjustified violation of the principle of equality; a second that it is inevitable in a Union governed by the constitutional principle of divided powers. This Article questions this by offering a typology of reverse discrimination. While most scholars assume that reverse discrimination is a singular phenomenon that demands a singular response, this Article shows that it is a variegated phenomenon that demands a variegated response. It distinguishes three types of reverse discrimination and explains that the proper response depends on the type we are considering. Type I is caused by the application of the principle of mutual recognition; Type II by an interaction between domestic federalism and internal discrimination; and Type III by the CJEU’s confusion over the aim of the right to free movement and residence. Through this typology, the Article shows that reverse discrimination is never a corollary of the principle of divided powers, nor is it always incompatible with the principle of equality. Finally, the Article shows that to the extent that reverse discrimination violates the principle of equality, the solution is not to equalise rights upwards but downwards to the lower (national or regional) level of government. This shows that the principle of equality and the principle of divided powers need not collide.

Van den Brink, M. (2023). A typology of reverse discrimination in EU citizenship lawEuropean Law Open, 2(1), 57-78. doi:10.1017/elo.2022.54

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