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Framing the Principle of Non-Discrimination on Grounds of Nationality. Article 18(1) TFEU in the ECJ case law

Lucia Serena Rossi, Giudice della Corte di giustizia dell’Unione europea, Lussemburgo

Il principio di non discriminazione sulla base della Nazionalità (PNDN), enunciato dagli articoli 18(1) TFUE e 21(2) CFR impone agli Stati membri dell’Unione un generale divieto di discriminare i cittadini degli altri Stati membri. Previsto sin dalla versione originaria dei Trattati istitutivi, ha costituito il primo nucleo ante litteram, della cittadinanza dell’Unione. Il principio appare svolgere una funzione incrementale rispetto ai diritti dei cittadini dell’Unione sanciti dai Trattati e dalla Carta. Il presente articolo esplora l’evoluzione del principio in questione, alla luce della giurisprudenza della CGUE. Viene sottolineata l’interpretazione estensiva data dalla Corte con riferimento alle due condizioni di applicazione del principio e si sottolinea la crescente tendenza a conferire allo stesso effetti diretti. L’articolo si sofferma sui casi in cui il principio si applica a situazioni che ricadono nell’ambito di applicazione del diritto dell’Unione, ma con riferimento a discriminazioni che toccano materie non disciplinate o addirittura soggette alla competenza di quest’ultima. Alcune questioni rimangono tuttavia aperte, in particolare per quel che riguarda le discriminazioni indirette e le situazioni orizzontali. Date le conseguenze imprevedibili che l’applicazione di un principio di così ampia portata può produrre in certe situazioni, alcune eccezioni potrebbero essere giustificate, nei limiti di un rigoroso test di proporzionalità. In proposito si sottolinea come dalla recente giurisprudenza della CGUE emerge che l’applicazione del PNDN possa essere subordinata alla verifica dell’esistenza, da un lato, di una connessione sufficiente fra l’individuo e lo Stato ospite, e dall’altro di un di “fattore specifico di collegamento” fra la situazione ed il diritto dell’Unione.

he principle of non-discrimination on grounds of nationality (‘PNDN principle’) under Art. 18(1) TFEU and Art. 21(2) CFR imposes a general prohibition to Member States to the benefit of the citizens of other Member States. Included into the founding Treaties as the first, ante litteram, core of the European citizenship, it appears to play an ‘incremental function’ with respect to EU citizens’right provided for by the Treaties and the Charter. The present contribution aims at exploring the evolving boundaries of the NDN principle, in light of the ECJ case law. It highlights the broad interpretation of its two conditions of applicability, given by the Court, and investigates the growing tendency to recognize direct effect to the NDN principle. The Article dwells upon those cases in which the principle applies to situations falling within the scope of EU law, but with regard to forms of discriminations concerning matters stretching beyond the scope of application of the specific EU law provisions and therefore covered, as such, by residual national competences. Some questions regarding the PNDN, notably with regard to indirect discrimination and horizontal application, remain nonetheless still open. Given the unforeseeable legal consequences that such extremely far-reaching principle may produce in certain cases, some limitations might be justified, submitted to a proportionality test. In this respect, it is maintened that in its recent case-law the Court assesses the existence the existence, on the one hand, of a “sufficient connection” between the individual and the host State and, on the other, a “specific connecting factor” between the situation and the EU law.

Sommario:

I. Introduction - II. Genesis and development of the PNDN - III. First condition of applicability of the PNDN under Art. 18 (1) TFEU: “within the field of application of the Treaties” - IV. The (ongoing) relations with EU policies other than citizenship - V. Second condition: the residual nature of the PNDN and its relation with other special provisions - VI. The direct effect of Arts. 18(1) TFEU and 21(2) CFR - VII. The recent ECJ case-law: assessing the “connecting factor” - NOTE


I. Introduction

This article aims at exploring the boundaries of the principle of non-discrimination on grounds of nationality (hereafter, the ‘PNDN’) in light of the recent developments in the EU Court of Justice (hereinafter “ECJ” or the “Court” case law. The PNDN was particularly useful before the introduction of the EU citizenship by the Treaty of Maastricht and it is still referred to in the ECJ case law, in cases where the situation falls beyond the scope of the abovementioned legislation. The ECJ has significantly contributed to the shaping of two main aspects of the PNDN: its conditions of applicability and its legal effects in the national legal orders. The next sections will, therefore, focus on these two aspects, in turn. First, the analysis will address the scope of the PNDN and investigate how the ECJ has interpreted its twofold condition of applicability. On the one hand, the article will clarify the notion of the “scope of application of the Treaties” within the meaning of Art. 18(1) TFEU and how the exercise of EU citizenship’s rights (§ III) and fundamental freedoms (§ IV) may impact such notion. On the other hand, the analysis will focus on the issue of the interplay between this principle with special prohibitions of discrimination (and the corresponding derogations) laid down by secondary legislation (§ V). Second, the article will examine the question of the legal effects of the PNDN (§ VI). To begin with, the vertical direct effect of the PNDN, also in para-public situations, will be presented. The analysis will then shift to the possible direct effect of the principle. Special attention will be devoted to the second legal basis of the PNDN, Art. 21(2) of the Charter of Fundamental Rights of the European Union (hereafter the ‘Charter’ or ‘CFR’) and the general limitations to its applicability. Finally, some open questions surrounding the limits to the application of the PNDN will be discussed (§ VII). More particularly, the paper will explain a recent case-law of the ECJ that provides some criteria helping to frame the PNDN.

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II. Genesis and development of the PNDN

The PNDN is for the EU legal order more than just an expression of the general principle of non-discrimination [1]. In fact, this principle has constituted the first core of the citizenship of the European Union [2]. The first formulation of the PNDN dates back to the Treaty of Rome. According to Art. 7 EEC [3], “within the scope of application of [the EEC Treaty], and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited”. This provision has never substantially been revised in the course of the integration process and retained the same wording in all the successive versions of the Treaties, up until the current Art. 18 TFEU [4]. Its content has thus been progressively clarified by the ECJ and is now the subject of settled case law. At the time of the EEC Treaty, the field of application of primary law was limited to economic matters and essentially consisted of the single market and its four fundamental freedoms. Art. 7 EEC was included among the “principles” of the Community [5] and was one of the few individual rights recognized, albeit implicitly and negatively, by the Treaties [6]. This also helps explaining why the PNDN has been one of the essential legal tools used by the ECJ to expand the material and personal scope of rights and freedoms that were originally conceived as a ‘benefit’for economic operators acting in the single market – thus, not for ordinary ‘persons’. A significant example, in this respect, is the judgment rendered by the ECJ in 1989 in Cowan [7], few years before the introduction of EU citizenship. In that case, the PNDN, originally intended to complement the four fundamental freedoms, was applied by the Court to a situation in which the functional connection with one of these freedoms was very limited. Mr Cowan was, in fact, a British tourist, assaulted at the exit of a metro station in Paris. Having suffered physical injury from unidentified assailants, he asked for compensation from the State, but, because he was a foreign national without a residence permit, his request was refused. Based on the fact that he was a recipient of services in the host Member State, the ECJ started from the premise that “by prohibiting any discrimination on grounds of nationality Art. 7 of the [EEC] Treaty requires that persons in a situation governed by Community law be placed [continua ..]

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III. First condition of applicability of the PNDN under Art. 18 (1) TFEU: “within the field of application of the Treaties”

The first condition of application of the PNDN under Art. 18(1) TFEU is that a situation should fall “within the scope of application of the Treaties”. This condition has been very broadly interpreted by the Court, as comprising “all situations which fall within the scope ratione materiae of [Union] law” [23]. However, interestingly, the Court often applies the PNDN to situations falling within the scope of EU law, but for discriminations concerning matters of competence (a) falling beyond the scope of application of the specific provisions of the Treaties applicable to the situation, or (b) not yet covered by EU legislative acts and included as such in the scope of residual national competences [24]. This happens, first and foremost, where the situation at issue is connected with the citizenship’s right to move and reside freely within the territory of the Member States. Both the previous and the post-Lisbon ECJ case law provides numerous examples in this regard. As to the case-law prior to the Treaty of Lisbon, in Bressol the Court dealt with a Belgian rule establishing a numerus clausus for enrolling non-resident students in the undergraduate schools of the French Community. The Court stated that, whilst European Union law does not detract from the power of the Member States as regards the organization of their education systems and of vocational training [25], when exercising that power, Member States must comply with European Union law. Therefore, the students of another Member State (in this case those of French nationality) “may rely on Art. 18 TFEU, which prohibits any discrimination on grounds of nationality, in all situations falling within the scope ratione materiae of European Union law, those situations including the exercise of the freedom conferred by Art. 21 TFEU to move and reside within the territory of the Member State”  [26]. In Data Delecta [27], the Court was confronted with a rule of domestic civil procedure requiring legal persons established in another Member State to provide security for costs related to legal proceedings (cautio judicatum solvi). However, the same security was not required for State entities when lodging legal actions. The ECJ acknowledged that, in the absence of Community legislation, the provision at issue fell within the national procedural autonomy [28]. Despite of this, since the national rule was liable to indirectly [continua ..]

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IV. The (ongoing) relations with EU policies other than citizenship

In the logic of the Treaty of Lisbon, the PNDN may be considered as a corollary of the citizenship of the European Union, and notably of the right to move and reside freely stemming from the latter. It follows that Art. 18 TFEU is applied in most cases in conjunction with Art. 21 TFEU. However, the link with EU citizenship is not exclusive. Even after the entry into force of that Treaty, Art. 18 TFEU continues to be applied by the ECJ also in conjunction with Treaty provisions other than those governing the exercise of the rights stemming from Art. 21 TFEU. In the recent ECJ case-law, Art. 18 TFEU is referred to by the Court in connection with Union sectoral competences, such as the transport policy. In the case International Jet Management [57] the ECJ was called to determine whether the PNDN was applicable to a situation in which a first Member State required an air carrier, operating private flights from a third country under a license issued by a second Member State, to obtain an authorization to enter its airspace, although such an authorization was not required for carriers holding a license issued by the first Member State. The Court observed that the air transport services were provided from a third country and the EU legislature had not exercised the power to liberalise that type of service under Art. 100(2) TFEU [58]. As a result, Member States were entitled, under the special legal regime governing transport services pursuant to Art. 58(1) TFEU, to impose restrictions on the provision of such services [59]. Nevertheless, since the provision of air transport service between the Member States as a whole was regulated by secondary legislation, according to the Court the situation fell within the scope of application of the Treaties and therefore of the PNDN [60]. As a result, the national provision in question constituted a form of indirect discrimination, not proportionate to the legitimate safety objective pursued [61]. Furthermore, the PNDN continues to be invoked with reference to legal persons, in connection with the Treaty rules on fundamental freedoms, for those forms of discrimination on grounds of nationality that fall within their material scope but are not covered by the specific prohibitions laid down by these Treaty provisions [62]. A recent case, Austria v Germany [63], concerned two German legislative measures, introduced on the same date: a first measure levying an infrastructure use charge on [continua ..]

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V. Second condition: the residual nature of the PNDN and its relation with other special provisions

The second condition of applicability of the PNDN provides that Art. 18 TFEU applies “without prejudice to any special provisions contained [in the Treaties]”. In other words, as the Court has consistently held, the “general prohibition of all discrimination on grounds of nationality, applies independently only to situations governed by EU law for which the Treaty lays down no specific rules of non-discrimination”[68]. The PNDN, therefore, constitutes a general and not special clause, intended to apply only in the absence of specific prohibitions of discrimination, like those contained in the Treaty provisions on fundamental freedoms [69]. Art. 45(2) TFEU, in particular, is relevant in this respect. According to this provision, the freedom of movement of workers affirmed by the first paragraph “shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.” The Court has therefore consistently held that “Article 18 TFEU, which enshrines the general principle of non-discrimination on grounds of nationality, is intended to apply independently only to situations governed by EU law in respect of which the Treaty lays down no specific prohibition of discrimination” [70]. To the extent to which “Article 45(2) TFEU provides, in favour of employees, for specific rules governing non-discrimination on the basis of nationality in respect of employment conditions”, it follows that “the situation [at issue] must be examined solely on the basis of Art. 45 TFEU” [71]. Conversely, the fact that the special prohibition of discrimination on grounds of nationality provided for under Art. 45(2) TFEU is expressly limited to three aspects of free movement of workers – i.e. employment, remuneration and other conditions of work and employment, which are exhaustively listed by this provision – has significant implications for the applicability of Art. 18 TFEU. In fact, it implies that the general PNDN laid down by the latter provision continues to apply to all discriminations based on nationality that occur in employment relationships covered by the fundamental freedom of movement of workers, other than those falling within the scope of Art. 45 (2) TFEU [72]. These conclusions are not limited to Treaty rules laying down a specific prohibition of [continua ..]

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VI. The direct effect of Arts. 18(1) TFEU and 21(2) CFR

The above analysis shows that the PNDN has a vertical direct effect, being invokable by private parties against Member States before national courts. Art. 18(1) TFEU is in fact a clear, precise and unconditional norm that applies first and foremost against the Member States and imposes national authorities the duty to recognize equal treatment for citizens of another Member State with respect to their own nationals. However, the question remains as to whether this principle can also have horizontal direct effect, that is, whether it may be invoked before national courts in disputes between private individuals [90]. In the area of freedom of movement of workers, the Court has already responded positively to this question. As anticipated, in the area of freedom   of movement of workers, the Court has already responded positively to this question, albeit with regards to the specific non discrimination clause laid down by Art. 45(2) TFEU [91]. In a separate line of cases, the Court has also acknowledged the direct effect of the PNDN under Art. 18(1) TFEU in cases concerning situations involving the presence of a quasi-public authority falling outside the scope of Art. 45(2) TFEU and linked in different ways – and to various extent – to the exercise of a certain public power or regulatory authority [92]. This case-law has its roots in Sacchi [93], where the Court recognized the possibility for private individuals to invoke the PNDN before national courts against a public company acting on behalf of the State. The case concerned the compatibility with the Treaty of national legislative provisions reserving to a State-owned company the exclusive right to operate television broadcasts, including for commercial advertising purposes. The Court started from the premise that the existence of such a monopoly did not constitute, per se, a breach of the PNDN under the then Art. 7 EEC. However, the Court held that discriminatory acts on the part of undertakings enjoying such exclusive rights with regard to nationals of Member States by reason of their nationality – or, in the same vein, in favor of national material, products, trade channels or commercial operators – would have been incompatible with the general and special (i.e. relating to the free movement of goods) prohibitions of discrimination on grounds of nationality laid down by the Treaty [94]. Subsequently, in Donà [95], the ECJ reached the [continua ..]

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VII. The recent ECJ case-law: assessing the “connecting factor”

This contribution has highlighted the peculiar nature of Art. 18(1) TFEU. While applying only in situations falling within the scope of application of the Treaties (such as, for example, the free movement of persons), this provision is capable of guaranteeing equal treatment to EU citizens in the host Member State, prohibiting discriminations in areas not – or not yet – covered by other provisions of EU law. The PNDN requires a two-step reasoning, based on two preconditions (applied in a logical sequence) and a conclusion. First, it must be assessed whether the situation falls within the scope of application of the Treaties. Second, no other more specific provision of EU law should be able to target the discrimination at issue. If these two preconditions are met, then the PNDN comes into play and makes it possible to strike all forms of discrimination that stem from national legislation or practices. As is shown by the ECJ case law, such reasoning is capable of affecting unequal treatments in fields going beyond the boundaries of the EU competences and thus falling within the Member States’residual competences, such as national rules concerning surnames, access to education, civil procedures, language requirements in criminal proceedings, amateur sports activities or extradition towards third countries. As far as the first precondition is concerned, thanks to the broad interpretation given by the Court of Art. 18(1) TFEU, all situations of current or potential exercise of fundamental freedoms fall within the scope of application of the Treaties and, therefore, of the general PNDN. This explains why Art. 18(1) TFEU is mostly coupled with Art. 21(2) TFEU or other primary (or secondary) EU law provisions. The application of Art. 18(1) TFEU is in fact triggered by those provisions, extending its reach to matters not covered by the latter. With regard to the second precondition, the PNDN does not apply in all cases where the discrimination on grounds of nationality falls into the scope of the specific prohibitions of discrimination laid down by other rules of EU law, and in particular by Art. 45(2) TFEU. However, in cases involving the free movement of workers, the latter provision can nevertheless be supplemented by Art. 18(1) TFEU, where the discrimination at issue fall outside the three hypotheses exhaustively listed in Art. 45(2) TFEU. The PNDN is a powerful instrument to boost the citizenship of the EU – It can be argued that [continua ..]

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NOTE

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