Causing or Preventing (Reverse) Discrimination When Transposing EU Free-Movement Rules in the European Economic Area: A First Categorization of the Approaches Adopted by National Legislators

Abstract

Within the European Economic Area (EEA), many rights are granted to EU/EEA nationals in terms of free movement and residency. Most of these rights, enshrined in Directive 2004/38/EC, apply also to their family members, regardless of their nationality. However, in some States national rules continue to apply to the family members of static citizens, even when such rules are less favorable, creating situations of reverse discrimination. Current studies focus mostly on ‘if’ reverse discrimination occurs and ‘why’ (systemic causes). There is no comparative study on the approaches adopted by national legislators when implementing EU secondary rules on free movement (i.e., on ‘how’ discrimination is caused or prevented). This article intends to fill the gap, designing a first categorization of such approaches. We consider how Norway, Italy, and Slovenia have transposed the Directive, studying which provisions apply to third country nationals who are family members of EU/EEA nationals, and which apply to family members of static nationals. These selected countries have adopted different methods when extending or limiting free-movement rights in their national systems, and therefore they provide interesting examples of different approaches, which we categorize as ‘separation,’ ‘accumulation,’ and ‘assimilation.’