Indirect discrimination, EU law, non-discrimination principle, nationality, European Union, CJEU case law, disproportionate impact, national provision, workers rights, equal treatment, Treaty on the Functioning of the European Union TFEU, Directive 2004/38/CE, disguised discrimination, unjustified differential treatment, legitimate objective, fair implementation, non-discriminatory manner, workers from other Member States, national workers, Court of Justice of the European Union CJEU, Dano case, Terhoeve case, nationality discrimination, EU citizens rights, free movement of workers, EU legislation, discrimination prohibition, hidden discrimination, objective justification, restriction on rights, important objective, fair and non-discriminatory implementation
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Abstract
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Abstract
This document discusses the concept of indirect discrimination in EU law, its criteria for identification, and relevant case law from the Court of Justice of the European Union.
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[...] It has notably highlighted that even if a national provision is applied indistinctly according to nationality, it may be considered indirectly discriminatory if it is likely to affect workers from other Member States more than national workers, and therefore risk particularly disadvantage them. These criteria aim to ensure that any national measure producing discriminatory effects is subject to scrutiny by the CJEU. Thus, the Court can verify whether this measure is objectively justified and proportionate to the objective pursued by the Member State concerned. [...]
[...] Thus, the Court concluded that the said legislation did not constitute indirect discrimination based on nationality and was in compliance with EU law. For a thorough examination, it is appropriate to first examine the scope of the principle of non-discrimination on grounds of nationality and then the indirect discrimination linked to a national provision applicable without distinction of nationality (II). I. The scope of application of the principle of non-discrimination The principle of non-discrimination on grounds of nationality enshrined in the law of the Union aims not only to prohibit obvious direct discriminations based on the criterion of nationality but also any hidden form of unjustified differential treatment leading to the same unfavorable result Its extensive scope of application ensures real equal treatment between workers, regardless of their nationality. [...]
[...] To determine whether a measure constitutes indirect discrimination, the CJEU often examines its concrete effect on the group of workers concerned. It evaluates whether the measure creates a particular disadvantage for workers from other Member States, taking into account factors such as working conditions, access to employment, promotion opportunities, and social benefits. In addition, the CJEU takes into consideration the context in which the measure is adopted, as well as the objectives pursued by the Member State concerned. If the measure can be objectively justified by legitimate objectives such as the protection of public order, public health, or security, it may be considered non-discriminatory, provided that it is proportionate to the objective pursued and that there is no less restrictive means of achieving that objective. [...]
[...] If the measure meets these criteria, it may be considered compliant with European law, even if it has a negative impact on workers from other Member States. This is justified by the case of Garcia Avello v. Belgium (case C-148/02) of 2 October 2003, in which the Court of Justice of the European Communities ruled on the compatibility of Belgian legislation with the principle of non-discrimination on the basis of European nationality . The Court ruled that the Belgian provision obliging children born in Belgium to foreign parents, but of Belgian nationality, to choose between Belgian nationality and that of their parents was contrary to EU law, thereby affirming the right of these citizens to retain their Belgian nationality without having to renounce that of their parents. [...]
[...] Indirect discrimination linked to a national provision applicable without distinction of nationality The principle of non-discrimination also prohibits indirect discriminations that may result from a national provision applicable indiscriminately. This implies identifying the criteria characterizing such indirect discrimination and then analyzing the conditions for its possible objective and proportionate justification A. Criteria for identifying indirect discrimination Indirect discrimination constitutes a more subtle form of discrimination that can occur when a legal provision, although applied equally to all workers without distinction of nationality, has a disproportionate impact on a group of workers due to their national origin or other protected characteristics. [...]
