Non-discrimination and migration constitute two areas of EU law and policy that have greatly evolved since the entry into force of the Amsterdam Treaty. Both are of particular relevance to third-country nationals whose status, mobility and integration may depend highly on EU migration law and the EU's prohibition of discrimination. In between these two fields of EU law, there exists however a grey zone that remains insufficiently explored: it is a challenge for the coherence of EU anti-discrimination law. Should and can EU law enhance the protection of the third-country nationals whose status it regulates against nationality discrimination and against other forms of discrimination that may result from EU migration law?
This Article introduces our Special Issue by posing a central question: What is the added value of the increasing prominence of the concept of the "essence" of fundamental rights in EU law? It will address this larger question in four steps: First, by examining the function of the concept in EU law and the methods for its derivation; second, by summarizing how its application diverges across EU-and international-law; third, by outlining some enduring difficulties with the essence concept; and finally, by reflecting on its future role in EU law, including its impact on other sites of legal authority-such as domestic fundamental rights, the political institutions of the EU, and international human rights law. As the other articles of this issue demonstrate, while there is not yet a coherent approach to deriving and understanding the essence of rights across the fundamental rights the EU must protects, the essence concept plays an increasingly significant role in demarcating the boundaries between the EU's legal and political orders and between overlapping sites of legal authority. Recent developments-such as the rule of law "crises"-are likely to further amplify the importance of "essence" to EU law practice and scholarship.
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