CYIL vol. 7 (2016)

139

CYIL 7 ȍ2016Ȏ

THE SCOPE AND THE FUTURE OF EQUALITY OF TREATMENT…

The first part of the article deals with the evolution and the present state-of-art

of the principle of equality of treatment for economically inactive Union citizens

on the move, while the second part focuses on challenges to this general principal

questioning its existing content and its possible future.

1. The construction of the principle of equality of treatment

The principle of equality of treatment is a hybrid concept that has been built up

for more than sixty years thanks to the contribution of different sources of European

law. Each source of law has its own vision of this general principle, which will be more

or less generous or restrictive according to the time and to the beneficiary concerned.

The first part will present the evolution of the principle of equality of treatment

in the main sources of law: primary law, secondary law and the jurisprudence of the

Court of Justice of the European Union.

1.1 The treaties

The principle of equal treatment exists from the beginning of the freedom of

movement of persons, at this time reserved to national workers in the treaty of Paris

(1951)

and in the treaty of Rome (1957).

It is a long-established principle

already

inscribed in the founding treaties and included later in the following treaties, considered

as a general principle of law applying to all Union citizens. Indeed, Article TFEU 18

quotes an express reference to one of the main characteristics of the principle of

equality of treatment, the prohibition of discrimination on the ground of nationality.

It is also possible to find in the Treaty a specific reference to equality of treatment of

workers on the move. Likewise, Article 45-2 TFEU

prohibits any discrimination on

the ground of nationality between workers of Member States as regards employment,

remuneration and other conditions of employment. While equality of treatment

clearly applied to workers on the move since the beginning, it had been not clear, at

the time of the adoption of the Maastricht treaty and of the consequent birth of Union

citizenship, if it will apply also to economically inactive Union citizens. This question

has been later clarified by secondary law, especially Directive 2004/38/EC and by the

decisions of the Court of Justice of the European Union.

Since the Lisbon treaty, the Charter of Fundamental Rights of the European

Union is also part of primary law. This text does apply to economically inactive

Union citizens on the move that theoretically could use its articles to claim their

Treaty establishing the European Coal and Steel Community, ECSC Treaty.

Treaty establishing the European Economic Community (EEC).

Article 18 TFEU (former Article 7 EEC, Article 6 EC, Article 12 EC) : 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.

Former Article 48 EECA and Article 39 EC.