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Part III - Reverse Discrimination in a Federal State Context

Published online by Cambridge University Press:  29 September 2018

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Summary

This work has distinguished between ‘classic cases’ of reverse discrimination and cases of reverse discrimination in a federal state context. Parts I and II discussed ‘classic cases’ of reverse discrimination in which a Member State treats its own nationals in a purely internal situation more strictly than Union citizens falling within the ambit of Union law. Part III will focus on ‘specific cases’ of reverse discrimination. These concern situations of reverse discrimination in a federally structured Member State. That is to say, it may happen that the reverse discrimination only affects some of the Member State's own nationals, in particular those who do not fall under the jurisdiction of the regional authority granting certain rights to the nationals falling under its jurisdiction.

Regional authorities often reserve benefits to persons residing in the territory falling under their jurisdiction. For instance, residents can benefit from free or discounted access to public services, such as swimming pools, museums, theatres, sports events, etc, or residents may have the right to use their own language vis- à -vis public authorities. In order to comply with the Treaty provisions on free movement and the principle of non-discrimination on grounds of nationality, the regional authority treats nationals of other EU Member States like their own residents and grants them the same benefits. Accordingly, specific cases of reverse discrimination may arise.

A notorious example of a specific case of reverse discrimination in a federal state context is the Flemish Care Insurance case, which will be discussed in detail as a common thread throughout this part. For now, it suffices to point out that the system of Flemish care insurance as determined by the Decree excluded from its benefits Belgian citizens who worked in the Dutch-speaking region or in the bilingual region of Brussels Capital, but who lived in the French- or German-speaking region and who never exercised their right to free movement. This complex case of reverse discrimination is the result of both the ECJ's and the Belgian Constitutional Court's judgment on the case. That is, on the basis of Union law, Union citizens who had exercised their right to free movement had to be included.

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Chapter
Information
Reverse Discrimination in the European Union
A Recurring Balancing Act
, pp. 265 - 266
Publisher: Intersentia
Print publication year: 2017

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