The Problem of Discrimination Against Nationals of the Host Member State
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Abstract
The aim of this publication is to answer the question, whether article 39 (2) of the EC Treaty, where prohibition of discrimination on grounds of nationality in free movement of workers is laid down, includes prohibition of discrimination against nationals of the host member state as well. This case would be likely if the protection provided by national law for the nationals of the host member state was lesser than the protection provided by EC law for the EU foreigners.
Freedom of movement for workers is regarded as one of the elements of the internal market of EC, while the migrant workers are considered participants of the internal market. Therefore we would claim that only the latter workers fall under the scope of protection provided by article 39 of the EC Treaty. However, a recent opinion says that the latter clause of the Treaty should secure equality of both the EU foreigners and nationals of the host member state. The baseline of this approach is the concept of the EU citizenship and the concept of prohibition of non-discriminatory restrictions in free movement of workers.
Nevertheless, the author of this publication aims to prove the opposite approach, claiming that article 39(2) (as well as article 12) of the EC Treaty must not include prohibition of discrimination against nationals of the host member state.
Freedom of movement for workers is regarded as one of the elements of the internal market of EC, while the migrant workers are considered participants of the internal market. Therefore we would claim that only the latter workers fall under the scope of protection provided by article 39 of the EC Treaty. However, a recent opinion says that the latter clause of the Treaty should secure equality of both the EU foreigners and nationals of the host member state. The baseline of this approach is the concept of the EU citizenship and the concept of prohibition of non-discriminatory restrictions in free movement of workers.
Nevertheless, the author of this publication aims to prove the opposite approach, claiming that article 39(2) (as well as article 12) of the EC Treaty must not include prohibition of discrimination against nationals of the host member state.
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Please see Copyright and Licence Agreement for further details.
