Distinguishing Between Use and Abuse of EU Free Movement Law: Evaluating Use of the “Europe-route” for Family Reunification to Overcome Reverse Discrimination

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Table of Contents: I. Introduction. – II. Reverse discrimination: colliding constitutional principles in EU law. – III. Abuse of EU law: definition and background. – IV. Abuse in the context of family reunification rights. – V. The case-law of the Court of Justice on family reunification law abuse. – VI. The Commission Communication with guidelines for the implementation of Directive 2004/38. – VII. The follow-up. – VIII. Abuse v. non-applicability of EU law. – IX. Concluding remarks.

Abstract: Equality is a fundamental principle of EU law but protection of the Member States’ competence to regulate their own nationals’ legal position, anchored in the division of competences, may cause inequality among citizens. Reverse discrimination occurs when EU citizens who reside in their own Member State and are in a purely internal situation are subject to the law of this Member State, while EU citizens who fall within the scope of EU law through the use of free movement rights benefit from more lenient EU rules. Both equality among EU Member States and the division of competences are important principles of EU constitutionalism. Proposed remedies should, therefore, fit within the constitutional system of the EU. In its case-law, the Court makes EU citizenship rights more accessible and empowers EU citizens to change the legal regime that applies to them by moving across a border. This case-law opens up a possibility to circumvent national immigration law. This Article inquires whether the use of EU law for this purpose should be considered to be abuse of law. In addition, it discusses the role of the European Convention on Human Rights in the protection of families, when EU law does not apply. The first part of the Article discusses the constitutional background in which reverse discrimination and family reunification are situated. The second part studies the concept of abuse of law in the context of EU citizenship and the question when family reunification on the basis of EU law can be classified as such, as well as the implications thereof.

Keywords: family reunification – reverse discrimination – abuse of law – Europe-route – EU citizenship – division of competences.

European Papers, Vol. 3, 2018, No 3, pp. 1209-1243
2499-8249 - doi: 10.15166/2499-8249/267

* PhD Researcher, Ghent European Law Institute of Ghent University (Jean Monnet Centre of Excellence), hester.kroeze@ugent.be.


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