European anti-discrimination proposal without ban on nationality discrimination

A report [1] was recently released by the EU Council on an anti-discrimination proposal submitted in 2008 [2]. It is noteworthy that discrimination due to nationality is explicitly excluded in the proposal, also in the recent version. The text of paragraph 5 of Article 3 of the proposal reads as follows:

5. This Directive does not cover differences of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons in the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.

The 2008-proposal does not provide any explanation:

Differences in treatment based on nationality are also not covered.

The victims of FATCA and FBAR (the US legislation that harms everyone with the American nationality who lives outside of the US [3]) will be shocked to read this.

On the ‘Legislative Train’ page [4] at the European Parliament, the following explanation is given on the status of the proposal:

In Council, discussions on the draft directive have been held under successive presidencies within the EPSCO Council’s Working Party on Social Questions. While emphasising the importance of the fight against discrimination, some Member States questioned the need for the Commission’s proposal, which was seen as infringing national competence on certain issues, and as conflicting with the principles of subsidiarity and proportionality. There was also opposition to the inclusion of social protection and education from some Member States and reservations from some delegations about the practicability of including the concept of multiple discrimination in the directive. The progress report put to the meeting of the Employment, Social Affairs, Health and Consumer Affairs Council on 21 June 2018, ten years after the proposal was first put forward, noted that outstanding issues include subsidiarity and the division of competences, legal clarity and consistency with other legal acts, budgetary implications and costs, and implementation. The progress report issued by the Slovenian presidency in November 2021 concluded that ‘there is a need for extensive further work before the required unanimity can be reached in the Council’, in view of the outstanding concerns around the balance between subsidiarity and meaningful protection against discrimination, the cost of implementing the disability provisions and legal certainty.

It is highly remarkable that Europe does not act against nationality discrimination.


[1] The overview page shows that there is only an English text of the report. It is a document on file 2008/0140(CNS).
[2] Overview page. Procedure file on EUR-Lex and on the site of the European Parliament.
[3] More on the way the United States harms people who live outside of the US on my FATCA page (Dutch) and on the page of SEAT, Stop Extraterritorial American Taxation.
[4] Page: Anti-discrimination directive in “A New Push for European Democracy”, updated 20 October 2022 by Rosamund Shreeves and Ülla Jurviste, Members’ Research Service.

Over Ellen Timmer

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