The Right to Free Movement and the Dilemma of Reverse Discrimination in EU Law

The European Union (EU) is an area without internal frontiers in which goods, services and people can move freely. The absence of internal frontiers is an important prerequisite for the establishment of the internal market. At the same time, it sets major challenges for EU policy maker as it requires them to formulate smart legislation that pursues two goals concurrently. That is to say, policy makers are asked to formulate legislation that restrict free movement in order to prevent irregular migration and transfers from occurring, but that also obstruct the development of the internal market as little as possible. Particularly in the area of the equal treatment of EU citizens this balancing exercise has proved to be everything but straightforward. This becomes clear from case law of the European Court of Justice determining the content of and limitations to the right to equal treatment of EU citizens. In this paper this is illustrated by studying the issue of reverse discrimination and by focusing particularly on the difficulties arising from the legality of reverse discrimination in family reunification cases. In this article it is explained what reverse discrimination entails and why it is still accepted in the EU. Consquently, it is discussed that whilst many commentators have advocated abolishing the legality of reverse discrimination in order to allow EU citizens to fully enjoy their right to equal treatment, this may not be the panacea