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The Scope of Article 12 of the Treaty of the European Communities vis-à-vis Third-Country Nationals: Evolution at Last?

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Abstract:

Abstract

This article will critically examine the traditional interpretation of Article 12 EC—prohibiting discrimination on the basis of nationality—as not applying to third country nationals (TCNs). Different arguments, both for and against this ‘classic’ interpretation, will be considered. Analysing the question of the ‘scope of application of the EC Treaty’, with a view to determining the scope of application of Article 12 EC, it will be emphasised that this is not restricted to the right of free movement, in that the latter's restricted personal scope of application does not determine that of Article 12 EC. This is all the more true following the Treaty of Amsterdam's partial ‘Communitarisation’ of policies on visas, asylum and immigration, which tend to apply principally to TCNs. In extending the material scope of application of the EC Treaty, this ‘Communitarisation’ simultaneously leads to an extension of the specific scope of application of Article 12 EC. Working from the hypothesis that Article 12 EC could indeed apply to TCNs, we will then examine the eventual consequences of such an application.

Document Type: Research Article

DOI: http://dx.doi.org/10.1111/j.1468-0386.2009.00489.x

Affiliations: Institute for European Studies of the Free University of Brussels

Publication date: November 1, 2009

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