The Scope of Article 12 of the Treaty of the European Communities vis‐à‐vis Third‐Country Nationals: Evolution at Last?

• Author: Chloé Hublet
• DOI: http://doi.org/10.1111/j.1468-0386.2009.00489.x
• Date: 01 November 2009
• Published date: 01 November 2009

eulj_489757..774

The Scope of Article 12 of the Treaty of

the European Communities vis-à-vis

Third-Country Nationals: Evolution

at Last?

Chloé Hublet*

Abstract: This article will critically examine the traditional interpretation of Article 12

EC—prohibiting discrimination on the basis of nationality—as not applying to third

country nationals (TCNs). Different arguments, both for and against this ‘classic’ inter-

pretation, will be considered. Analysing the question of the ‘scope of application of the EC

Treaty’, with a view to determining the scope of application of Article 12 EC, it will be

emphasised that this is not restricted to the right of free movement, in that the latter’s

restricted personal scope of application does not determine that of Article 12 EC. This is

all the more true following the Treaty of Amsterdam’s partial ‘Communitarisation’ of

policies on visas, asylum and immigration, which tend to apply principally to TCNs. In

extending the material scope of application of the EC Treaty, this ‘Communitarisation’

simultaneously leads to an extension of the specific scope of application of Article 12 EC.

Working from the hypothesis that Article 12 EC could indeed apply to TCNs, we will then

examine the eventual consequences of such an application.

I Introduction

At the moment when Europe is making progress in fighting racism and xenophobia,

with the transposition, in the various Member States, of the ‘Race Equality’1and

‘Framework’2directives adopted in 2000, and with a proposal to extend the material

scope of application of the latter,3it is interesting to look more closely at the

* PhD candidate at the Institute for European Studies of the Free University of Brussels, working within the

framework of a Concerted Research Action entitled ‘The Foreigner and the Other in the process of

normative and identity transformations in Europe’, financed by the Ministry for the French Community

of Belgium. I would like to thank the organisers of, and all of the participants in, the International

Workshop for Young Scholars (WISH) 2008, without whom this article would not have taken the same

final form. I must also thank my thesis promoters Emmanuelle Bribosia and Isabelle Rorive, for their

attentive proof-reading. However, I take full and sole responsibility for what is written here.

1Council Directive 2000/43/EC, implementing the principle of equal treatment between persons irrespective

of racial or ethnic origin , [2000] OJ L 180/22.

2Council Directive 2000/78/EC, establishing a general framework for equal treatment in employment and

occupation, [2000] OJ L 303/ 16.

3Proposal for a Council Directive on implementing the principle of equal treatment between persons

irrespective of religion or belief, disability, age or sexual orientation , 2 July 2008 COM (2008) 426 final.

European Law Journal, Vol. 15, No. 6, November 2009, pp. 757–774.

© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

Community provision prohibiting discrimination on the basis of nationality, namely

Article 12 of the Treaty on the European Communities (Article 12 EC), and on the role

that this provision could play in the wider Community struggle against racism and

xenophobia in Europe. This article will therefore analyse the personal scope of appli-

cation, in Community law, of the prohibition of discrimination based on nationality.

Having traditionally been interpreted as applying solely to Community nationals, it

may well be that the time for a new interpretation of Article 12 EC has finally come.

The analysis will begin with some preliminary observations on the question of Article

12 EC’s application to TCNs (ie those who do not hold citizenship of any Member

State).

The question of Article 12 EC’s application to TCNs will then be considered in depth

(section III). This section will consider arguments both in favour of (subsection A), as

well as those against (subsection B), the traditionally-accepted theory of who can

benefit from Article 12 EC. We shall see that this classic interpretation does not stand

up well to careful analysis, particularly following the partial Communitarisation

carried out by the Amsterdam Treaty as regards the policies of visas, immigration,

asylum and other policies linked to the free movement of persons. This section will also

examine the link between those criteria that are based on race or ethnic origins, with

that based on nationality, with the aim of clarifying the role of Article 12 EC in the fight

against racism. On this point, particular attention will be given to the International

Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

The final part of this article will be devoted to analysing the consequences of a new

interpretation of Article 12 EC as applying to TCNs from the point when they enter

into a situation governed by Community law (section IV).

II Article 12 EC and its Application to TCNs: Some Preliminary Remarks

The principle of non-discrimination on the basis of nationality has been part of Com-

munity law since the Treaty of Rome was signed in 1957.4The logic that underlies its

inclusion is identical to that behind the creation of the European Communities—

namely, the creation of a Common Market. It is a condition sine qua non for the

creation of a common market among the various European states which have ratified

the Treaty of Rome, that neither the nationality of individuals, nor the national origin

of goods, services or capital, should be pertinent criteria for the development of this

market. This principle has, from the outset, been considered as the keystone of the

system of European integration. It is an expression of the more general principle of

equality,5erected by the European Court of Justice (ECJ) as a fundamental principle of

Community law.6In other words, it was not, in the first instance, because of concerns

for social justice or human rights that the principle of non-discrimination was inserted

into the EC Treaty.

The principle of non-discrimination on the basis of nationality is currently incorpo-

rated, in the same terms as in 1957, in Article 12 EC, which states that:

Within the scope of application of this Treaty, and without prejudice to any special provisions contained

therein, any discrimination on grounds of nationality shall be prohibited.

4Formerly Article 7 of the EEC Treaty, which later became Article 6 of the EC Treaty and finally Article

12 of the EC Treaty.

5C-224/00, Commission v Italy, [2002] ECR 2965, para 14.

6Case 1/72, Rita Frilli v Belgium [1972] ECR 457, para 19.

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