Chapter 8 - Conclusion

Summary

In this work, three main research questions were examined, on the basis of which the general conclusion is structured. First, we analysed to what extent reverse discrimination continues to fall within the scope of law of the Member States or within the ambit of Union law. Secondly, we examined the grounds on which the Member States decide whether or not to remedy reverse discrimination. Thirdly, there was analysis of whether reverse discrimination should be considered as a problem that requires a solution in each case. Moreover, if a solution is required, who should provide this solution: the EU, the Member States, regions or several levels of government acting together?

REVERSE DISCRIMINATION AS A SIDE EFFECT OF THE SCOPE OF APPLICATION OF UNION LAW

SITUATIONS OF REVERSE DISCRIMINATION FALL WITHIN THE SCOPE OF APPLICATION OF NATIONAL LAW

According to the settled case law of the ECJ, the Treaty provisions on free movement and citizenship do not apply to purely internal situations of which all the relevant aspects are confined to one single Member State. Therefore, a Member State may treat its own nationals in purely internal situations less favourably than persons falling within the scope of application of these Treaty provisions. Hence, the limited scope of application of the Treaty provisions on free movement and citizenship may lead to a situation of reverse discrimination. In particular, reverse discrimination can be considered as a side effect of the fact that national law and Union law are applicable to the same territory, however, each of them with its own limited scope of application.

It is settled case law of the Court of Justice that situations of reverse discrimination are not prohibited by Union law. Accordingly, situations of reverse discrimination fall within the scope of law of the Member States and they have to deal with it. It has been argued in this book that the ECJ's traditional approach remains valid since reverse discrimination has to be considered a possible side effect of the limited scope of application of Union law which is based on the division of competences between the EU and the Member States as governed by the principle of conferral of powers.