Article 18 TFEU General Principle of Non-discrimination

Why was Article 18 introduced?

Article 18 of the Treaty on the Functioning of the European Union (TFEU) was introduced to prohibit ‘any discrimination on grounds of nationality’ so that all nationals and EU citizens could be treated equally within the scope of the Treaties. Article 18 is to be applied in instances where no other specific rights of non-discrimination exist.^[1] For example, vocational training in different Member States falls within the scope of Article 18 so that all individuals have equal access to university education.^[2] This can be seen in Case 293/83,Gravier^[3] where additional fees for non-nationals fell within the scope of Article 18 on the basis that secondary law provisions provided support to Member States under Article 166 TFEU which allowed the court to apply Article 18. Union citizens will be able to invoke Article 18 as soon as they exercise their right to free movement, yet the situation they are seeking to rely upon must be objectively comparable.^[4]

What was the aim of Article 18?

The aim of Article 18 was to ensure that the principle of equal treatment was being upheld so as to allow the free movement of  individuals to be effectuated. This is because the free movement of workers (as provided for under Article 45) is one of the most important rights that is provided to individuals within the European Union. Thus, as noted by Morris; ‘individuals have rights, and there are things no person or group may do to them (without violating their rights). So strong and far-reaching are these rights that they raise the question of what, if anything, the state and its officials may do.’^[5] Article 18 was thereby implemented to support the right to free movement with its main function being to prohibit any discrimination on the grounds of nationality and thus afford appropriate protection to individuals.^[6] In Case C-300/04 Eman and Sevinger^[7] it was recognised by the court that Article 18 aims to ensure that ‘comparable situations are not treated differently and different situations are not treated the same unless such treatment can be objectively justified.’

What legal changes did Article 18 make?

Article 18 guarantees the equal treatment of all residents provided that the situations is governed by EU law as shown in Case 39/86 Lair^[8]. This means that ‘the cases must have a factor linking them with any of the situations governed by community law.’^[9] In effect, Article 18 has limited horizontal direct effect as it only exists in certain circumstances as signified in Case 36/74Walgrave and Koch and Ferlini.^[10] InRudy Grzelczyk v Centre^[11]it was shown that the Articles provisions could be relied upon by the courts so as to ensure that individuals were not being discriminated against on the basis of their nationality.^[12] Here, a student was said to have been discriminated against when he was not provided with a right of residence when exercising the right to free movement. In view if this decision, it was stated by Miller that; ‘where the free movement of persons is at issue, argumentation can mainly or exclusively make use of Article 18 EC for reasons of simplification.’^[13] Article 18 is, thus, applicable when ascertaining the rights of workers as also shown in Netherlands v Reed.^[14]

TFEU Exceptions

Why were the Exceptions introduced?

The free movement of persons is an integral right that is provided to individuals within the EU, yet it is important an unnecessary burden is not being placed upon Member States. As a result of this, two main exceptions to the free movement of persons were introduced. The first exception provided Member States with the ability to place restrictions on EU migrant workers from undertaking employment in the public service (Article 45 (4)and on self-employed persons to engage in activities that are connected with ‘the exercise of official authority’ (Article 51).^[15] The second exception allows restrictions to be placed upon the free  movement of persons on the grounds of public policy, public security and public health.’^[16] These exceptions were introduced so that Member States could be provided with the ability to restrict certain posts and thus limit the rights of non-nationals from activating their right of residence under EU law.

What was the aim of the Exceptions?

The aim of the exceptions was to ensure that the interests of Member States could be safeguarded, yet it has been said that such exceptions ‘represent a barrier to promotion of non-nationals.’^[17] Nevertheless, these exceptions have been construed narrowly by the courts so as to ensure that the right to free movement is preserved, whilst also ensuring public security protection. In order to ensure that the exceptions are only being used for their intended purpose, it has been specifically expressed in the Citizen Directive that member states ‘cannot apply restrictions to the free movement as means to serve economic ends.’^[18]

What Legal changes did the Exceptions make?

The courts have interpreted the two exceptions narrowly so that the free movement principle is not being completely undermined.^[19] For example, in Case 149/79 Commission v Belgium (No 1)^[20] it was held by the ECJ that the term ’employed in the public service’ under Article 45(4) concerned only those posts whereby the powers conferred by public law duties would be ‘designed to safeguard the general interests of the State or other public authorities.’ A distinction was, thus, made in the case between those tasks which belonged to the public service and those which were typical of the public service. Only the former would be capable of falling within the ambit of the exception. Furthermore, in Case 2/74 Reyners v Belgium^[21]it was held by the Court that Article 51 was to be restricted to activities that involve a direct and specific connection with the exercise of official authority. Justifications on the grounds of public security are also limited to the ‘internal and external security of a Member State and threats to the functioning of the institutions and public services and the serious disturbance to foreign relations or peaceful co-existence of nations’^[22] as identified in Case C-145/09 Tsakouridis.^[23]

Bibliography

Textbooks

Alina Kaczorowska. European Union Law (Routledge, 2013)

Catherine Barnard. EU Employment Law (OUP Oxford, 2012)

Court of Justice of the European Union. The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case Law (Springer Science & Business Media, 2012)

Friedl Weiss and Clemens Kaupa. European Union Internal Market Law (Cambridge University Press, 2014)

Richard Ball. The Legitimacy of the European Union Through Legal Rationality: Free Movement of Third Country Nationals (Routledge, 2013)

Russell A Miller. Annual of German & European Law (Berghahn Books, 2006)

Journal Articles

Christopher W Morris. ‘Natural Rights and Political Legitimacy’ (2005) Social Philosophy & Policy Foundation, Printed in the USA, accessed 25 February 2016

Hildur Hallgrimsdottir. ‘Restricting EU Free Movement: Public Security Reasoning’ (2014) Gherson accessed 25 February 2016

Miriam De Mol. ‘The Novel Approach of the CJEU on the Horizontal Direct Effect of the EU Principle of Non-Discrimination’ (2011) 18 MJ 1-2 accessed 25 February 2016

Case Law

Case 149/79 Commission v Belgium (No 1)[1982] ECR 1845, para 9

Case C-300/04 Eman and Sevinger[2006] ECR I-8055

Case 293/83,Gravier[1985] ECR 593

Case 39/86 Lair[1988] ECR 3161

Case 2/74 Reyners v Belgium [1974] ECR 631

Case C-145/09 Tsakouridis [2010] ECR I-11979

Case 36/74Walgrave and Koch and Ferlini [1974] ECR 01405

Netherlands v Reed Case 59/85, [1986] ECR 1283

Rudy Grzelczyk v CentreCase C-184/99 of 20 September 2001, ECR 2001, I-6193

Legislation

Treaty on the Functioning of the European Union