EU TFEU: Nationality and non-discrimination

The declaration by the French foreign minister Robert Schuman on 9 May 1950 started the ongoing quest to build Europe “through concrete achievements which first create a de facto solidarity”.

Already the Treaty establishing the European Coal and Steel Community (ECSC) prohibited discriminating practices (Article 4).

Since the then Article 7 of the Treaty establishing the European Economic Community (EEC), non-discrimination on the grounds of nationality has been a fundamental principle of the common market, enriched by the landmark decisions of the European Court of Justice.

Today, the prohibition of discrimination on grounds of nationality is found in Article 12 of the Treaty establishing the European Community, but achieving the mindset expressed by ‘de facto solidarity’ is a never ending challenge for both national governments and citizens.

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We start to look at Part Two of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) gave Part Two a new headline: Non-discrimination and citizenship of the Union (adding ‘Non-discrimination and’). See Official Journal (OJ) 17.12.2007 C 306/50:

NON-DISCRIMINATION AND CITIZENSHIP

31) The heading of Part Two shall be replaced by the following heading: ‘NON-DISCRIMINATION AND CITIZENSHIP OF THE UNION’.

32) An Article 16 D shall be inserted, with the wording of Article 12.

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We are sent scurrying for Article 12 TEC, currently in Part One, Principles. The provision can be found in the latest consolidated version of the present TEU and TEC, in OJ 29.12.2006 C 321 E/48:

Article 12 TEC

Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules designed to prohibit such discrimination.

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After the obligatory horizontal amendments, we have the text of the Lisbon Treaty provision before our eyes:

Part Two – Non-discrimination and citizenship of the Union

Article 16d TFEU (ToL), after renumbering Article 18 TFEU

Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination.

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The European Convention proposed to give the fundamental principle of non-discrimination on grounds of nationality the visibility it deserved by placing the provision in Article I-4(2) of Part I, Title I Definition and objectives of the Union, of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/8):

Article I-4 Draft Constitution
Fundamental freedoms and non-discrimination

1. Free movement of persons, goods, services and capital, and freedom of establishment shall be guaranteed within and by the Union, in accordance with the provisions of the Constitution.

2. In the field of application of the Constitution, and without prejudice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited.

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Article III-7 of the draft Constitution contained the basis for legislation (OJ 18.7.2003 C 169/29):

TITLE II
NON-DISCRIMINATION AND CITIZENSHIP

Article III-7 Draft Constitution

European laws or framework laws may lay down rules to prohibit discrimination on grounds of nationality as referred to in Article I-4.

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The IGC 2004 followed the same approach in the Treaty establishing a Constitution for Europe, where Title I Definition and objectives of the Union, of Part I, contained Article I-4(2) (OJ 16.12.2004 C 310/12):

Article I-4 Constitution
Fundamental freedoms and non-discrimination

1. The free movement of persons, services, goods and capital, and freedom of establishment shall
be guaranteed within and by the Union, in accordance with the Constitution.

2. Within the scope of the Constitution, and without prejudice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited.

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The legal basis is found in Article III-123 of the Constitutional Treaty (OJ 16.12.2004 C 310/56):

TITLE II
NON-DISCRIMINATION AND CITIZENSHIP

Article III-123 Constitution

European laws or framework laws may lay down rules to prohibit discrimination on grounds of nationality as referred to in Article I-4(2).

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A few remarks by your glossator:

The position of the prohibition of discrimination on grounds of nationality may be less dignified in the Lisbon Treaty than in the Constitution, but the fundamental principle is preserved and its scope widens from the ‘Community’ to encompass the treaties as a whole.

Specific provisions against discrimination and the (gradual) establishment of EU citizenship as a fundamental status for equal rights bolster the classical non-discrimination requirement on the basis of nationality.

The ordinary legislative procedure applies, replacing the co-decision procedure (Article 251 TEC), although many problems relate to partial practices rather than lack of legislation.

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An introduction to the inventiveness concerning discrimination on grounds of nationality is offered, free of charge, by the ECJ’s Digest of case-law (available only in French).


Ralf Grahn


Sources:

Declaration of 9 May 1950 (the Schuman declaration)
http://europa.eu/abc/symbols/9-may/decl_en.htm

European Court of Justice: Répertoire de jurisprudence communautaire (Digest of Community case-law), B – The European Community (EEC/EC), B-01.05 Interdiction de discrimination en raison de la nationalité (Derniére mise à jour au 02/03/2008), 83 summaries
http://curia.europa.eu/common/recdoc/repertoire_jurisp/bull_cee/data/index_B-01_05.htm