Social advantages: A new lease of life?

Introduction:

The expression 'social advantages' was first used in Community law in the context of the free movement of persons. It is well known that Article 39 of the Treaty Establishing the European Community mandates freedom of movement for workers and prohibits any discrimination based on nationality between workers of theMember States as regards employment, remuneration and other conditions of work and employment. Regulation 1612/681 was enacted pursuant to the power conferred on the institutions by Article 40 to legislate further to secure these aims. Article 7(1) of the Regulation provides that a worker who is a national of a Member State may not, in the territory of anotherMember State, be treated differently from national workers by reason of his nationality as regards employment; paragraph (2) adds that such a worker is to 'enjoy the same social and tax advantages as national workers'.

The case law of the Court of Justice has been abundant on the meaning of 'social advantages' in this context. Although as will be seen below it has evolved in its reach and sophistication, it might have been thought to have settled into an established pattern had it not been for a recent legal transplant, namely the employment of the expression in the newly-enacted Race Directive. The purpose of this paper is to examine the evolution of the meaning of the term 'social advantages' for the purposes of free movement law, and to consider the likely future of its meaning in the field of race discrimination law.

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