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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 ∗ Lecturer and Deputy Director of the Centre for European Law and Integration (CELI),
University of Leicester. IALS Visiting Fellow 2010‐11. 1 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.
2 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.
3 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.
4 For further elaboration see A. Tryfonidou, ‘Further steps on the road to convergence among the market freedoms’, (2010) 35 ELRev. 36.
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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.
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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 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.
7 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’.
8 See paragraphs 18‐22 of the Opinion of Advocate General Jacobs in Case C‐224/02, Pusa, [2004] ECR I‐5763.
9 P. Craig and C. de Búrca, EU Law: Text, Cases and Materials (OUP, 2008), at p. 558. 10 This is now reflected in Article 9 TEU. 11 See, inter alia, Articles 2, 3, 4 and 9 TEU, Articles 8, 10, 18, 19, 37, 40, 45, 95, 110 TFEU. 12 Joined Cases 117/76 and 16/77, Ruckdeschel, [1977] ECR 1753, para. 7.
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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 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. 14 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.
15 N. Nic Shuibhne, ‘The Common Market at 50’, (2008) 15 IJEL 103, at p. 109. 16 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. 17 G. More, ibid, at p. 518. 18 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). 19 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.
20 D. Chalmers, ‘Repackaging the Internal Market – The Ramifications of the Keck Judgment’, (1994) 19 ELRev. 385, at p. 397.
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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 Supra note 19, at p. 78. 22 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.
26 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.
27 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.
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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.
30 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’.
31 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.
32 This term was firstly established in Cassis de Dijon and is used in the context of the free movement of goods.
33 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.
34 Case C‐57/96, Meints, [1997] ECR I‐6689, para. 45.
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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 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.
36 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.
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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 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.
41 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’.
42 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.
43 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’.
44 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. 48 See, for instance, Case 2/74, Reyners, [1974] ECR 631; Case 33/74, Van Binsbergen,
[1974] ECR 1299. 49 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,
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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
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.
50 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. 53 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.
54 See, for instance, Bosman, supra note 33, paras. 92‐104. 55 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. 56 Alpine Investments, supra note 49, para. 38; Bosman, supra note 33, para. 103. 57 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.
58 For an analysis see C. Barnard, supra note 5, Chapter 15.
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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 See Section IV(a). 60 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.
61 For a detailed study of reverse discrimination and purely internal situations see A. Tryfonidou, Reverse Discrimination in EC Law (Kluwer, 2009).
62 Case 115/78, Knoors, [1979] ECR 399, para. 24. 63 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.
64 A. Tryfonidou, supra note 61, at p. 11.
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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 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.
66 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.
67 Case C‐112/91, Werner, [1993] ECR I‐429. 68 See the Opinion of Advocate General Léger in Case C‐152/03, RitterCoulais, [2006] ECR
I‐1711, paras. 51‐67. 69 See, for instance, Bosman, supra note 33. 70 See, for instance, Pusa, supra note 8.
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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.
73 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.
74 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.
75 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.
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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 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.
77 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.
78 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.
79 See paragraph 33 of the Opinion of Advocate General Geelhoed in Case C‐1/05, Jia, [2007] ECR I‐1.
80 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.
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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. 85 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.
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.
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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 Supra note 45. 89 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.
90 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.
91 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.
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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 Commission v. Italy (mopeds), supra note 46, para. 37; Mickelsson and Roos, supra note 46,
paras. 24 and 26. 93 Supra note 47. 94 Ibid, para. 51. 95 As is the case, for instance, with product requirements. 96 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’.
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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 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).
100 Saunders, supra note 60, para. 10.
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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. 104 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. 105 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.
106 Lancry, supra note 105, para. 29.
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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 Ibid, para. 30. 108 Ibid, para. 31. 109 Carbonati Apuani, supra note 105, para. 23. 110 Ibid, para. 24. 111 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.
112 Paragraphs 111‐116 of the Opinion of Advocate General Léger in Case C‐293/02, Jersey Potatoes, [2005] ECR I‐9543.
113 See para. 62 of the Opinion of Advocate General Poiares Maduro in Carbonati Apuani, supra note 105.
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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 For an analysis see my annotation of the case ‐ A. Tryfonidou, (2006) 43 CMLRev. 1727. 115 Jersey Potatoes, supra note 112, paras. 65‐66.
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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