5.7. Nationality or national origin – Handbook on European non-discrimination law

Handbook on European non-discrimination lawContents

Key points

  • Under the ECHR, discrimination on the basis of national origin features is a protected ground.
  • Under EU law, nationality discrimination is prohibited in the context of the free movement of persons.

Discrimination based on nationality and national origin is prohibited by several instruments of international law: the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.

Article 2 (a) of the CoE’s Convention on Nationality defines it as “the legal bond between a person and a State”. While this treaty has not received widespread ratification, its definition is based on accepted rules of public international law,[560] and has also been endorsed by the European Commission against Racism and Intolerance (ECRI).[561] ‘National origin’ may be taken to denote a person’s former nationality, which they may have lost or added to through naturalisation, or to refer to the attachment to a ‘nation’ within a state (such as Scotland in the United Kingdom).

Under EU law, discrimination on grounds of nationality is prohibited within the scope of the application of the treaties (Article 18 of the TFEU). As discussed in Section 1.2, EU law prohibits nationality discrimination, in particular in the context of the free movement of persons (Article 45 of the TFEU, Citizenship Directive[562]). According to Article 45 of the EU Charter of Fundamental Rights concerning freedom of movement and of residence, only EU citizens have the right to move and reside freely within the territory of the Member States.

Example: Mr Cowan[563] was a British citizen on holiday in France, who was violently assaulted while leaving the subway station. French law provided for compensation for the harm suffered in such circumstances when the victim is French, holds a residence permit, or is a national of a country that has entered into a reciprocal agreement on the matter with France (which was the case of the United Kingdom). Mr Cowan claimed the French government discriminated against him based on nationality. The CJEU confirmed that persons in a situation governed by EU law should be placed on a completely equal footing with nationals of the Member State. Thus, every EU citizen who exercises the freedom of movement, in particular, recipients of services, is covered by the prohibition of discrimination on the grounds of nationality.

The principle of non-discrimination is not exclusively addressed to EU Member States. Entities not governed by public law also have to observe this principle when, in the exercise of their legal autonomy, they issue rules collectively regulating employment or the provision of services.[564] Working conditions in the different Member States are sometimes governed by provisions laid down by law and sometimes by agreements and other acts concluded or adopted by private persons. This limits the application of the prohibition of discrimination based on nationality to acts of a public authority and therefore risks creating inequality in its application. Consequently, the CJEU held that the prohibition of discrimination on grounds of nationality must be regarded as applying to private persons as well.

According to Article 45 (2), freedom of movement and residence may also be granted to nationals of third countries legally resident in the territory of a Member State.

Example: The Chen[565] case concerns a question as to whether a child has a right to reside in one Member State when they were born in a different one, while their mother, on whom they depend, is a third-country national. The CJEU considered that when a Member State imposes requirements to be met, in order to be granted citizenship, and where those were met, it is not open for a different Member State to then challenge that entitlement when they apply for residence.

Example: Alfredo Rendón Marín v. Administración del Estado[566] relates to EU citizens and their third-country national parents. The applicant was a man who had the sole care of a minor. He was a national of a third country, while the minor was an EU citizen. National legislation automatically denied a residence permit to the applicant in this situation, on the sole ground that he had a criminal record. The CJEU found that, where that denial has the consequence of requiring a child or children to leave the territory of the EU, there would be a compatibility conflict with EU law. Such a refusal would be consistent with EU law, only if it is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security. Accordingly, the national authorities have to assess all the relevant circumstances of the case, in the light of the principle of proportionality, bearing in mind the child’s best interests and the fundamental rights.

Example: In European Commission v. Hungary,[567] the CJEU examined the Hungarian provisions that excluded nationals from other Member States from the profession of notary. The CJEU found that notaries as defined in the Hungarian legal system do not exercise public authority. Therefore, the nationality requirement constitutes discrimination on grounds of nationality, prohibited by Article 49 of the TFEU (freedom of establishment).

CJEU case law has progressively aligned the rules applied to EU nationals and third-country nationals legally residing within the EU. In O. Tümer v. Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen,[568] the CJEU stated that the instruments protecting workers in general should be presumed as also protecting third-country nationals, even in cases where they are not legally authorised to work. In Servet Kamberaj v. IPES and Others,[569] the CJEU found that a derogation from the right of equal treatment should be interpreted strictly to safeguard the rights of third-country nationals to social and housing assistance, so as to ensure a decent existence for all those who lack sufficient resources as protected in Article 34 of the EU Charter on Fundamental Rights.

The principle of equal treatment, enshrined in Article 11 of Directive 2003/109/ EC, applies to long-term residents in several fields, for example: education and vocational training, including study grants in accordance with national law; recognition of professional diplomas, certificates and other qualifications, in accordance with the relevant national procedures; social security, social assistance and social protection as defined by national law; tax benefits; access to goods and services, and the supply of goods and services made available to the public and to procedures for obtaining housing.

Example: In European Commission v. the Netherlands,[570] the CJEU examined whether administrative charges to be paid by non-EU citizens for the issuing of residence permits in the Netherlands were in accordance with Directive 2003/109/EC.[571] It found that the charges applied to third-country nationals were excessive and disproportionate compared to those applied to nationals and therefore were liable to create an obstacle in the exercise of the rights conferred by Directive 2003/109/EC.

Under the ECHR, all member states of the Council of Europe (which includes all EU Member States) must ensure the rights guaranteed by the ECHR to all individuals within their jurisdiction, including third-country nationals. The ECtHR has maintained a balance between the state’s right to control what benefits it may offer to those enjoying the legal bond of nationality and the need to prevent states from discriminating against those who have formed substantial factual bonds with the state. The ECtHR has applied great scrutiny in matters relating to social security, if individuals can show a strong factual tie to a state.

While the ECHR provides greater protection than EU law on the ground of nationality, it readily accepts that the absence of a legal bond of nationality often runs together with the absence of factual connections to a particular state. This, in turn, prevents the alleged victim from claiming to be in a comparable position to nationals. The essence of the ECtHR’s approach is that the closer the factual bond of an individual to a particular state, particularly in terms of taxation, the less likely it will find that differential treatment based on nationality is justified.

Example: In Zeïbek v. Greece, [572] the applicant was refused a pension entitlement intended for those with ‘large families’. While she had the requisite number of children, one of her children did not hold Greek nationality at the time the applicant reached pensionable age. This situation had resulted from the government’s earlier decisions to remove nationality from the applicant’s entire family (which itself was tainted with irregularities) and then reissue nationality only to three of her children (since the fourth was already married). The ECtHR found that a policy of revocation of nationality has been applied in particular to Greek Muslims. The Court also found that the refusal of the pension could not be justified on the basis of preserving the Greek nation since this reasoning itself amounted to discrimination on the grounds of national origin.[573]

Example: In Dhahbi v. Italy,[574] the applicant, a Tunisian national, had entered Italy on a lawful residence and work permit. His application for a family allowance was rejected, because, according to relevant legislation, only Italian nationals and third-country nationals in possession of a long-term residence permit were eligible. The applicant alleged that he had been discriminated against on the grounds of his nationality. The ECtHR found that he had been treated less favourably than EU workers. The Court concluded that this difference in treatment, based exclusively on the grounds of nationality, required very weighty reasons to be justified and that the budgetary arguments put forward by Italy did not constitute sufficient justification. Therefore, there was a breach of Article 14 in conjunction with Article 8 of the ECHR.

Example: In Anakomba Yula v. Belgium, [575] a Congolese national was unlawfully resident in Belgium, because, shortly after giving birth, her residence permit expired and she began the process of applying for a renewal. She had separated from her Congolese husband, and both she and the natural father of her child, a Belgian national, wished to establish the child’s paternity. To do so, the applicant had to bring a claim against her spouse within a year of the birth. The applicant requested legal aid to cover the cost of the procedure, as she had insufficient funds. However, this was refused because such funding was only available to nationals of non-Council of Europe states where the claim related to establishing a right of residence. The applicant was advised to complete the renewal of her residence permit and then apply again. The ECtHR found that in these circumstances the applicant had been deprived of her right to a fair trial, and that this was based on her nationality. The state was not justified in differentiating between those who did or did not possess a residence permit in a situation where serious issues of family life were at stake, where there was a short time limit to establish paternity, and where the individual was in the process of renewing her permit.

The entitlement of states to regulate entry and exit of their borders by non- nationals is well established under public international law and accepted by the ECtHR. In this connection, the ECtHR has primarily intervened in complaints relating to the deportation of individuals where they face inhuman or degrading treatment or punishment or torture in the destination state (under Article 3),[576] or have formed strong family ties in the host state which will be broken if the individual is forced to leave (under Article 8).[577]

Example: In C. v. Belgium and Moustaquim v. Belgium,[578] the applicants, who were Moroccan nationals, had been convicted of criminal offences and were to be deported. They complained that this amounted to discrimination on the basis of nationality since neither Belgian nationals, nor non-nationals from other EU Member States could be deported in similar circumstances. The ECtHR found that that the applicants were not in a comparable situation to Belgian nationals, since nationals enjoy a right to remain in their home state, which is specifically enshrined in Article 3 of Protocol 4 of the ECHR. Furthermore, the difference in treatment between third-country nationals and nationals of other EU Member States was justifiable because the EU had created a special legal order as well as EU citizenship.

These cases should be compared to situations where the applicant has developed close factual links to the host state, through a long period of residence or contribution to the state through taxation.

Example: In Andrejeva v. Latvia,[579] the applicant used to be a citizen of the former Soviet Union, with the right to permanent residence in Latvia. National legislation classified the applicant as having worked outside Latvia for the period prior to independence (despite having been in the same post within Latvian territory before and after independence) and consequently calculated her pension based on the time spent in the same post after independence. Latvian nationals in the same post, in contrast, were entitled to a pension based on their entire period of service, including work prior to independence. The ECtHR found the applicant to be in a comparable situation to Latvian nationals since she was a ‘permanent resident non-citizen’ under national law and had contributed taxes on the same basis. It was stated that ‘very weighty reasons’ would be needed to justify differential treatment based solely on nationality, which it said did not exist in the present case. Although it accepted that the state usually enjoys a wide margin of appreciation in matters of fiscal and social policy, the applicant’s situation was factually too close to that of Latvian nationals to justify discrimination on that basis.

Example: In Ponomaryovi v. Bulgaria,[580] two Russian teenagers living in Bulgaria were excluded from secondary education because they could not pay the required school fees. The ECtHR noted that a state could have legitimate reasons for restricting the use of resource-hungry public services by short-term and illegal immigrants, who, as a rule, did not contribute to their funding. Additionally, in certain circumstances, states could justifiably differentiate between different categories of aliens residing in its territory. However, unlike some other public services, education is a right that enjoys direct protection under the Convention. Education is a very particular type of public service, which not only directly benefits those using it, but also serves broader social functions. The ECtHR distinguished between education at university level, where higher fees for aliens could be considered fully justified, and primary and secondary education where the states enjoy a narrower margin of appreciation. In regard to the situation of the applicants, the ECtHR stressed that they were not in the same position as individuals arriving unlawfully. They had come to live in Bulgaria as small children, were fully integrated and spoke fluent Bulgarian. In conclusion, the ECtHR found that Bulgaria had discriminated against the applicants on the grounds of their nationality and immigration status and had violated Article 14 in conjunction with Article 2 of Protocol No. 1 of the ECHR.

Example: In Koua Poirrez v. France,[581] a national of the Ivory Coast applied for a benefit payable to those with disabilities. It was refused on the basis that it was available only to French nationals or nationals from states with which France had a reciprocal social security agreement. The ECtHR found that the applicant was in fact in a similar situation to French nationals, since he satisfied all the other statutory criteria for receipt of the benefit, and had been in receipt of other social security benefits that were not dependent on nationality. It stated that ‘particularly weighty reasons’ would be needed to justify a difference in treatment between the applicant and other nationals. In contrast to the cases examined above, where the state was accorded a wide margin of appreciation, in relation to fiscal and social security matters, the ECtHR was not convinced by France’s argument of the necessity to balance state income and expenditure, or of the factual difference that no reciprocity agreement existed between France and the Ivory Coast. Interestingly, the benefit in question was payable, irrespective of whether the recipient had made contributions to the national social security regime (which was the principal reason for not tolerating nationality discrimination in the above cases).

Example: In Rangelov v. Germany,[582] a Bulgarian national, held in preventive detention, was refused access to a therapeutic programme that a German national in his position would have been able to follow. The authorities based their refusal on the fact that an expulsion order had already been issued in the applicant’s case and they were unable to prepare him for a life in Bulgaria as they did not know the living conditions there. The ECtHR found that such discrimination based exclusively on the ground of nationality made the continued detention arbitrary and thus in breach of Article 14 together with Article 5.

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560. ICJ, Nottebohm Case (Liechtenstein v. Guatemala) (second phase), Judgment of 6 April 1955, ICJ Reports 1955, p. 4: “nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.”

561. ECRI, General Policy Recommendation No. 7 on National Legislation to Combat Racism and Racial Discrimination, CRI(2003)8, adopted on 13 December 2002, p. 6.

562. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

563. CJEU, Case 186/87, Ian William Cowan v. Trésor public, 2 February 1989.

564. CJEU, C-281/98, Roman Angonese v. Cassa di Risparmio di Bolzano SpA, 6 June 2000.

565. CJEU, C-200/02, Kunqian Catherine Zhu and Man Lavette Chen v. Secretary of State for the Home Department, 19 October 2004.

566. CJEU, C-165/14, Alfredo Rendón Marín v. Administración del Estado [GC], 13 September 2016.

567. CJEU, C-392/15, European Commission v. Hungary, 1 February 2017. See also CJEU, C-50/08, European Commission v. French Republic [GC], 24 May 2011; CJEU, C-51/08, European Commission v. Grand Duchy of Luxembourg [GC], 24 May 2011; CJEU, C-53/08, European Commission v. Republic of Austria [GC], 24 May 2011; CJEU, C-54/08, European Commission v.
Federal Republic of Germany [GC], 24 May 2011.

568. CJEU, C-311/13, O. Tümer v. Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen, 5 November 2014.

569. CJEU, C-571/10, Servet Kamberaj v. Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES) and Others [GC], 24 April 2012.

570. CJEU, C-508/10, European Commission v. Kingdom of the Netherlands, 26 April 2012.

571. Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ L 16, 23.1.2004, pp. 44–53.

572. ECtHR, Zeïbek v. Greece, No. 46368/06, 9 July 2009.

573. See also ECtHR, Fawsie v. Greece, No. 40080/07, 28 October 2010 and Saidoun v. Greece, No. 40083/0728, October 2010.

574. ECtHR, Dhahbi v. Italy, No. 17120/09, 8 April 2014.

575. ECtHR, Anakomba Yula v. Belgium, No. 45413/07, 10 March 2009.

576. See, for example, ECtHR, Trabelsi v. Belgium, No. 140/10, 4 September 2014.

577. ECtHR, Nunez v. Norway, No. 55597/09, 28 June 2011.

578. ECtHR, C. v. Belgium, No. 21794/93, 7 August 1996; ECtHR, Moustaquim v. Belgium, No. 12313/86, 18 February 1991.

579. ECtHR, Andrejeva v. Latvia [GC], No. 55707/00, 18 February 2009.

580. ECtHR, Ponomaryovi v. Bulgaria, No. 5335/05, 21 June 2011.

581. ECtHR, Koua Poirrez v. France, No. 40892/98, 30 September 2003.

582. ECtHR, Rangelov v. Germany, No. 5123/07, 22 March 2012.

Contents

5. Protected grounds

5.1. Sex

5.2. Gender identity

5.3. Sexual orientation

5.4. Disability

5.5. Age

5.6. Race, ethnicity, colour and membership of a national minority

5.7. Nationality or national origin

5.8. Religion or belief

5.9. Social origin, birth and property

5.10. Language

5.11. Political or other opinion

5.12. ‘Other status’

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