The scope of EU Law in recent ECJ case law: reversing ‘reverse discrimination’ or aggravating inequalities?
Abstract
‘Reverse discrimination’ is one of the most blatant and persistent forms of discrimination in the EU. In recent cases, the European Court of Justice (ECJ) seems minded to combat the gravest instances of reverse discrimination, by interpreting EU law more broadly than it has traditionally done. My paper shows that the ECJ’s innovative interpretation, while driven by noble motives, is not a step in the right direction because it entails new incentives for the Member States to introduce or consolidate instances of reverse discrimination. The paper explores alternative avenues for curing reverse discrimination, namely amending EU legislation, or using national constitutional provisions to solve the problem. The paper concludes that the responsibility for solving the problem of reverse discrimination lies first and foremost with the EU legislator and the authorities of the Member States, and not with the ECJ.
Received: 15 May 2012
Accepted: 23 May 2012
Published online: 15 April 2016
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