The question arises as to whether there is a substantial difference between classic cases of reverse discrimination, on the one hand, and specific cases of reverse discrimination in a federal state context, on the other. This author does not think so. Specific cases of reverse discrimination are also a possible side effect of the limited scope of application of regulations of different levels of government. However, the situation is more complex since an extra level of government is added in the case of specific cases of reverse discrimination, namely, the regional level within a Member State. Since no substantial difference exists between classic and specific cases of reverse discrimination, it was possible to apply the working hypothesis based on (over)compensation to the latter cases too.

SPECIFIC SITUATIONS OF REVERSE DISCRIMINATION FROM THE UNION PERSPECTIVE

Specific situations of reverse discrimination could be prevented at the Union level, by the ECJ or by the Union legislator. The ECJ could do so on the basis of two divergent positions. First, when assessing restrictions to the freedom of movement within the EU, the ECJ could regard the relevant regulatory authority – be it the Member States or decentralised authorities within a single Member State – as the relevant frame of reference. If the regional authority is taken to be the relevant reference framework, the Flemish community in the Flemish Care Insurance case for instance, we would no longer be confronted with a specific situation of reverse discrimination, not even with a ‘traditional’ case of reverse discrimination. Instead, a ‘traditional’ violation of the Treaty provisions on free movement would be at stake. This position is mainly defensible from the perspective of the promotion of freedom of movement within the EU, but it seems too undermining for the Member States’ federal State structure.

Secondly, in the light of Article 18 TFEU, the ECJ could compare citizens of other Member States to the whole group of citizens of the home Member State, instead of comparing citizens of other Member States with the small group of citizens who benefit from more favourable treatment by their regional authority.