Meijers Committee
standing committee of experts on international immigration,
refugee and criminal law
21(2) CFR apply to distinctions between single and dual nationals, they would therefore be
applicable in situation where a dual EU-third country national (e.g. French-Moroccan) is
deprived of his EU nationality and thereby ceases to be an EU citizen.
Discrimination on the ground of racial or ethnic origin
Directive 2000/43 prohibits both direct and indirect discrimination based on racial or ethnic
origin in the fields of employment, education, social benefits and the supply of goods, services
and housing. Differences in treatment on the basis of nationality are expressly excluded from
the scope of the Directive.69 However, distinctions between single and dual nationals may be
covered if they amount to indirect discrimination on the grounds of racial or ethnic origin.
The EU Court of Justice has given a rather restrictive interpretation of the concept of ethnic
origin in Directive 2000/43. In the case of Jyske Finans, the Court held that the concept of
indirect ethnic discrimination is only applicable in situations where persons of a particular
ethnic origin are put at a disadvantage.70 Hence, Directive 2000/43 could cover a distinction
between single and dual nationals if the latter are of the same ethnic origin (for example,
Dutch-Moroccans) but not if the group of dual nationals consists of persons of mixed ethnic
origins (for example British citizens of whom some are of Bangladeshi origin and others of
Caribbean origin). As will be discussed below, this narrow understanding of the concept of
racial or ethnic origin is at odds with the case law of the European Court of Human Rights
(ECtHR), which accepts that ‘ethnic origin’ can refer to all persons of foreign ethnic origin.
The material scope of Directive 2000/43 does not cover the acquisition and loss of nationality.
Article 21(1) EU Charter of Fundamental Rights also prohibits discrimination on the grounds
of inter alia racial and ethnic origin; like the other fundamental rights in the Charter the scope
of this provision extends to all situations within the scope of EU law.71 As previously
mentioned, the CJEU has held that the withdrawal of the nationality of a Member State falls
within the ambit of EU law if it results in the loss of Union citizenship and of the rights attached
to that status.72 In these situations Member States must have due regard to EU law including
the prohibition of racial and ethnic discrimination laid down in the Charter. Finally, when
acting with the scope of application of EU law, Member States must also respect the principle
of non-discrimination as a general principle of EU law.73 Hence, if dual nationals lose their EU
citizenship as a result of citizenship deprivation by a Member State, it must be ascertained
that such deprivation is not contrary to the prohibition of racial or ethnic discrimination.
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Council of Europe
Articles 5 and 17 (1) European Convention on Nationality
69
Art. 3 (2) Directive 2000/43; see also recital 13.
CJEU 6 April 2017, Jyske Finans A/S, C-668/15, EU:C:2017:278, para 31; see also CJEU 15 November 2018,
Heiko Jonny Maniero, C-457/17, EU:C:2018:912, para 47.
71
Article 51 (1) CFR.
72
Rottmann para 42 and Tjebbes para 32.
73
E.g. CJEU 4 June 2015, P. and S., C-579/13, EU:C:2015:369, para 44.
70
13