Links between migration and discrimination

This report aims to describe the links between nationality and protection from discrimination under EU and
international law as well as in the domestic legal systems of EU Member States. Its purpose is to identify whether
third-country nationals are protected once they enter the European Union from discrimination on grounds of
nationality and from discrimination on grounds of race, ethnic origin or religion in situations where nationality is used as a proxy for these grounds. Article 3(2) common to both the Racial Equality and the Employment Equality
Directives states that these instruments ‘do […] not cover difference of treatment based on nationality’. However, this clause does not imply that all differences of treatment on grounds of nationality are permissible, particularly since they may result in indirect discrimination on grounds of race, ethnic origin or religion, or be in violation of other rules of EU law, including the general principle of equal treatment which applies in the field of application of EU law.

The integration of immigrants can succeed only if these individuals are adequately protected from discrimination.
Yet the position of nationals of EU Member States is much more advantageous than that of third-country nationals.
The provisions of the EC Treaty which prohibit discrimination on grounds of nationality, whether in general (‘within the scope of application of [the EC] Treaty’: Article 12 EC) or in the specific context of the freedom of movement of workers (Article 39(2) EC) or of freedom of establishment (Article 43 EC) have been interpreted to protect only the nationals of Member States.

The scope of application of Article 12 EC is thus limited to nationals of EU Member States, and it covers neither differences of treatment between EU citizens and third-country nationals nor differences of treatment between the nationals of different third countries.

This report aims to identify whether there exists a gap in the degree of protection afforded to third-country nationals by examining whether they are protected from discrimination on grounds of nationality under international or European human rights law, under national constitutions, or under the ordinary domestic legislation of EU Member States.

The European Network of Legal Experts in the Non-discrimination Field http://www.non-discrimination.net/

European Commission: DG Justice: Tackling discrimination http://ec.europa.eu/justice/discrimination/index_en.htm

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