February 11th, 2019 by James Goudie KC

The prohibition of discrimination based on nationality is enshrined in Article 18 TFEU and Article 21(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). The broader non-discrimination principle of which it is an expression is among the fundamental values of the EU (Article 2 TFEU), and among the rights protected by the Charter (Article 21). The principle of non-discrimination is a manifestation of the principle of equality of individuals before the law.  The principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way. To establish a case of discrimination, it is necessary, first of all, to find a suitable “comparator”: a person that is in a comparable situation and that is treated more favourably because of the identifiable characteristic. In that regard, it is not necessary that either the victim of discrimination or, arguably, the beneficiary of the more favourable treatment must, at a given moment, be identifiable as “flesh and blood” people. It is enough that, because of the allegedly discriminatory measure, it is evident that those persons exist. Furthermore, it is required not that the situations be identical, but only that they be comparable.

However, the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the benefit concerned.

In Case C-591/17, Republic of Austria v Federal Republic of Germany, Advocate General Wahl, in an Opinion delivered on 6 February 2019, said:-

“44.     That step of identifying a comparator is … of utmost importance: in the absence of a valid comparator there cannot be any meaningful comparison and, as a consequence, no unjustified difference of treatment can be established.”

The comparator chosen by the Austrian Government was regarded as not suitable. The comparator was comparable in one material capacity, but not in another.

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