National Discrimination

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National discrimination is a legal term . It describes a situation in which a state puts its own nationals or goods manufactured in its own country in a worse position than foreign ones.

root cause

The European Union law regulates, among other things, expansion and operation of the European single market and protects the freedom of movement of goods, services, people and capital. If a new scheme enters into force across the EU, but it can always happen that they - with a national scheme - at least temporarily collides and therefore in this state is not used or used only partially. EU-wide trade facilities cannot then be applied in this country and therefore tend to have a negative impact on the country's competitiveness. This legally anchored disadvantage of the own population is known as national discrimination.

Within the European Union there is a ban on discrimination for EU citizens on the basis of Art. 18 Sentence 1 TFEU . Nevertheless, domestic companies may be disadvantaged in the area of ​​trade, for example.

Germany

Domestic craftsmen by the master constraint due to the relief for applicants from other EU / EEA -Staaten by the freedom to provide services and the freedom of establishment discriminated against. There are no restrictions for the cross-border provision of craft services (within the scope of the freedom to provide services) (see Section 4 Trade Regulations ) - companies based in Germany require a travel trade card or an entry in the trade register (with the standard requirement of a master craftsman's certificate). Due to Directive 2006/123 / EC on services in the internal market , qualified professional experience in another EU member state is sufficient for entry in the trade register (freedom of establishment). This service directive was implemented in German law with § 9 Handwerksordnung (HwO) - the corresponding regulation in Austria was repealed by the local constitutional court. Applicants with no experience gained in other EU countries have the option of obtaining a license to practice in accordance with Section 7b of the HwO. Even if the legal text would allow a less discriminatory interpretation here, the case law assumes that the training time is not counted towards the six years of professional experience in § 7b HwO. In addition, some trades requiring a master craftsman are excluded in § 7b HwO. In order to weaken - but not eliminate - discrimination against nationals, the right to exercise was standardized as part of the 2004 amendment to the skilled trades .

The German beer law is a case of domestic discrimination. Beer brewed in other EU countries and imported into the FRG did not have to comply with the German regulation due to a ruling by the European Court of Justice in 1987, as this constitutes a violation of the free movement of goods under the EC Treaty would. A beer that is brewed exclusively within Germany and is also to be sold on the German market must, however, continue to comply with the Beer Ordinance ( BierV ) of 2005.

Austria

A specific case of national discrimination can be found in the Settlement and Residence Act (NAG): According to Section 20 (1) NAG, the residence title is generally to be issued for one year, sometimes for three years (Section 20 (1) a NAG). In the case of third-country family members of EEA citizens, the validity of a residence card is, by virtue of European law, five years when it is first issued ( Section 54 (1) NAG).

Thus, the foreign family members of Austrians are disadvantaged compared to the family members of EEA citizens.

A complaint against domestic discrimination against craftsmen at the Constitutional Court was successful in 1999.

Switzerland

In 2004, the Swiss Federal Supreme Court dealt with the question of national discrimination in family reunification , which arose on the basis of the EU-Switzerland Agreement on the Free Movement of Persons .

Italy

In Italy, domestic pasta was only allowed to be called “spaghetti” if it was made from durum wheat semolina. Pasta from other Member States could also be called spaghetti if it was not made from durum wheat semolina, as the imposition of such strict provisions would mean a violation of the free movement of goods under the EC Treaty.

See also

Individual evidence

  1. ↑ Third law amending the Crafts and Crafts Code of December 24, 2003, Federal Law Gazette 2003 I p. 2934
  2. ↑ ECJ judgment of March 12, 1987, Coll. 1987, 1227 - Purity Law for Beer ( Memento of April 30, 2005 in the Internet Archive )
  3. ↑ Jusline.at, Settlement and Residence Act (NAG)
  4. ↑ See decision G42 / 99 (PDF; 69 kB) of December 9, 1999 by the Austrian Constitutional Court .
  5. ↑ BGE 130 II 137 - National Discrimination from January 16, 2004
  6. ↑ see decision of the Italian Constitutional Court (Corte costituzionale) of December 30, 1997

literature

  • Astrid Epiney : Reverse Discrimination. Admissibility and limits of discrimination à rebors under European Community law and national constitutional law . Heymann, Cologne 1995, ISBN 3-452-23218-2 .
  • Christoph Hammerl: National Discrimination . Duncker and Humblot, Berlin 1997, ISBN 3-428-08931-6 .
  • DVBl 2007, 269 ff .: The national discrimination between constitutional and European law: New approaches in German case law by Jörg Gundel , Bayreuth