This chapter examines specific forms of reverse discrimination from two national perspectives, specifically from the Belgian and German perspectives. In particular, it examines the grounds on which national authorities decide whether to remedy the specific form of reverse discrimination at stake or not. First of all, these forms of reverse discrimination may be assessed in the light of the national rules on the division of competences. Secondly, specific situations of reverse discrimination may be assessed in the light of internal free movement within a federally structured Member State. Thirdly, as in ‘classic’ cases of reverse discrimination, the principle of equality, as enshrined in national law, comes into play. Finally, it should be added that national authorities do not always assess a situation of reverse discrimination on the basis of national law, but sometimes – incorrectly – on the basis of Union law.
In Belgium, the debate around reverse discrimination in a federal State context started with the case of the Flemish Care Insurance. Chapter 6 discussed the ECJ's Flemish Care Insurance judgment. This chapter will discuss the Belgian sequel, in particular the judgment of the Belgian Constitutional Court of 21 January 2009. The Flemish Decree was questioned in the light of the principle of equality, the principle of internal free movement and the rules on the internal division of powers. Actually, this case touches upon all the problematic aspects of a specific form of reverse discrimination in a federal State context. The Belgian Constitutional Court's judgment will be discussed in detail in Section 1 below because this argument was decisive for the Belgian Constitutional Court and further reference to the judgment will be made in Sections 2 and 3.
NATIONAL RULES ON THE INTERNAL DIVISION OF COMPETENCES
THE BELGIAN CONSTITUTIONAL COURT'S JUDGMENT ON THE FLEMISH CARE INSURANCE
In its judgment of 21 January 2009, the Belgian Constitutional Court reproduced the distinction that the ECJ drew between people who work in the Dutch-speaking region or in the bilingual Brussels-Capital region, but who live in the French - or German-speaking regions, depending on whether or not they have made use of the right to free movement within the EU.