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EU citizenship as facilitator of discrimination? The paradoxical effects of EU citizenship as evidenced by the family reunification case law

Martijn Van den Brink

Though few contest the idea that citizenship is a status of equal membership, EU citizenship is characterised by discrimination among EU citizens. Though this is a widely lamented problem, the causes are misunderstood and the suggested solutions, consequently, flawed. This is because EU citizenship rests upon the wrong normative foundations.Firstly, there is the widely shared idea that the moving EU citizen needs to be privileged over the static one. Secondly, a false dichotomy created between the market citizen and the Union citizen. Because the ECJ has incorporated these ideas in its case law, as evidenced by the family reunification case law, EU citizenship has not removed but facilitated discrimination. The ECJ has, thus, undermined the idea of EU citizens as equals and, thereby, touched upon the core foundations of EU citizenship.Because the normative foundations of EU citizenship are misunderstood, the wrong solutions have been offered for remedying the discrimination among EU citizens; it has been widely argued that the privileged treatment of the moving Union citizen should be extended to static ones as well. Not only is this infeasible, those solutions also fail to acknowledge that equal treatment should be guaranteed at the level of the Member States. Rather than privileging the moving EU citizens, they should be treated the same as nationals of the host Member State.

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