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63 Cards in this Set
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In this Block we would like you to think about the legal interactions between the EU and the UK. We will here briefly outline the origins of the Union, pinpoint major dates in its development, and summarise some of the theoretical approaches taken to European integration. For further detail, including reflections on the influence that the Union’s history has upon its current form, and upon its legal relationship with the UK, please use your text books and the suggestions for further reading at the end of this Topic and at the end of Topic 4.
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The historical development of the EU and European Integration
The idea of Europe has changed the geo-political make up of the European continent. An evolving ‘European integration’ has created the Union. Originally, an economic organisation with market-related law-making powers, it subsequently became a political Union. Today, the Union could be considered as a mechanism through which Member States pursue and articulate their national interest. |
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1) A brief pre-history of the Community/Union
The idea of a 'unified Europe' is not new. It was put forward in the 18th century by Bellers or a bit later by Saint-Simon. However, European Integration in its current form is the child of World War II. After the WWII the countries of Europe had real and pressing interests in the idea of a 'United Europe' – the desire to avoid another war, and to move to a position of combined strength through political and economic cooperation rather than weakening each other through economic competition. |
‘Prehistory’ events
1946 Winston Churchill called to build ‘a kind of United States of Europe’ 1950 Schumann Plan was drafted by Jean Monnet on behalf of the French Foreign Minister (French initiative): to “place German and French coal and steel production under a common high authority, within the framework of an organisation open to the participation of the other countries of Europe…any war between France and Germany becomes not merely unthinkable, but materially impossible” |
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1951 First treaty signed by six states: European Coal and Steel Community Treaty (ECSE)
1952 Monnet (Pleven Plan) a proposal for European Defence Community (EDC) 1953 Proposal for the European Political Community (EPC) 1956: Spaak Report: Economic integration in coal and steel should apply to nuclear energy and other areas. Resulted in the Euratom Treaty and the EEC Treaty 1957 of Rome |
Founding members: Germany, France, Italy, Belgium, Luxembourg and the Netherlands (their special interests)
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2) Genesis of the Community/Union
Coming together in 1957: Which model for a 'united Europe'? Having reached a stage at which states were ready to integrate, there was a lot of controversy over which model of integration this new European organisation should take. Diverse views were expressed, suggesting a highly integrated federal model at one end of the spectrum and a more loosely integrated purely economic ‘free trade area’ model at the other. |
The founding ideas were vague either by intention or by omission, inviting a plethora of interpretations; some commentators suggest that the ‘founding fathers’ strategically pushed for economic integration expecting social and political integration to follow.
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Theories of integration
3) Life events of the Community/Union Treaty of Rome 1957: The founding treaty aimed to establish a common market in goods, labour, capital and services, to create a customs union, by abolishing all customs duties and quantitative restrictions between Member States. Its purpose was ‘… to lay the foundations of an ever closer union among the peoples of Europe … to ensure the economic and social progress of their countries” |
Now: 2007 The Lisbon Treaty (in force since December 2009)
The Lisbon Treaty is a compromise after the failure of the constitutional treaty. It drops many constitution-features, e.g. the title and symbols. It provides for opt-out, cooperation within a smaller group (enhanced cooperation) and more flexibility. It abolishes the three pillar structure of Maastricht and replaces it with two treaties, the Treaty of Rome becomes the Treaty on the Functioning of the European Union (TFEU) and the Maastricht Treaty becomes Treaty of the European Union (TEU). The Charter of Fundamental Rights becomes legally binding but it is not the part of the Treaty (It was going to be a PART II of the European Constitution). Poland and the UK opted out from the Charter (see Topic 8). |
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Conclusion
European integration is dynamic and evolutionary. The struggle between the theories of Integration has important practical implications on the case law and the policy decisions of the Institutions; and especially for our understanding in the UK of the relationships between different legal orders. |
Topic 2 Institutions
The role and nature of Union institutions is something that is threaded throughout this module – institutions necessarily affect the nature of the law they produce. Their different positions within the Union affect their positions on proposed or actual legislation, or on suitable interpretations of case law (so defining the impact of legislation case law on UK law). |
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It is useful at this point to acquaint yourselves with the terminology, and to get a basic outline of the institutions, so as to think during the module about (a) the ‘avenues’ within these institutions for the UK to influence law-making in the Union and (b) how the balance of power between these institutions affects the degree of influence that the Union has upon UK law.
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In the beginning, the original Treaty of Rome provided for four institutions: the Commission, the Council, the European Parliament and the Court of Justice. The Treaty of Lisbon provides today for seven Institutions: European Parliament, the European Council, Council of the European Union, the European Commission, the Court of Justice of the European Union, the European Central Bank and the Court of Auditors.
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The European Council is essentially the groupings of the heads of state, plus its own President and the President of the Commission. It has only been formally recognised as an institution following the Lisbon Treaty. It should not be mistaken with Council of the European Union, which is one arm of the Union’s legislature, or with the Council of Europe (mentioned in the Block Guide Introduction) which is a human rights organisation distinct from the European Union. The president of the European Council is elected for 2 and a half years.
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1.1 The Commission
Generally speaking, the Commission represents the interests of the EU (supranational) and reflects the main purposes for which the EU was established. The Commission is the body in which the federal aspects of the Union are most apparent. The Commission’s Members are not representatives of their countries and are required to be above national loyalties. |
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1. 2 The Lisbon Treaty changes:
The Lisbon Treaty offers the opportunity for every Member State to get one Commissioner in the Commission whereas under the previous Treaties the number of Commissioners must have been smaller than the number of Member States. The role of the President of the Commission has been reinforced giving him the power to dismiss fellow Commissioners. The choice of the President of the Commission is directly related to the European elections. |
The completely new creation of the Lisbon Treaty is EU high representative for foreign and security policy that is also the Commission’s vice president. Its role is to be a commissioner for external relations and to deal with Common Foreign and Policy matters.
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Parliament
The European Parliament was supposed to represent the people of the European Community but it was not until 1979 that the first direct election took place. The European Parliament is a weaker institution than a national Parliament – firstly because it does not have total legislative prerogative. It has also been plagued with a number of concerns over the years; the distribution of seats has been controversial (see Topic 6). It also does not have a uniform election procedure, so is really only disparately directly elected in separate nationally held elections. The establishment of a uniform procedure may yet be too difficult. Finally, the European Parliament was rather weakened early on by the absence of a European Political Party System; elections are still made on the basis of nationally defined parties, which then choose to join a broad European party. |
5. The Court of Justice
The main role of the Court is to ensure that in the interpretation and the application of the Treaty the “law is observed”. |
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In other words, the main functions of the Court are:
• to ensure that the law is enforced, irrespective of political considerations; • to act as referee between the Member States and the Union as well as between the Union’s Institutions inter se, • to ensure the uniform interpretation and application of the Union Law throughout the European Union. |
The Court of Justice does not hear all disputes relating to the incorrect application of EU Law; the enforcement of Union law should mostly be done by national courts.
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6. The Court of Auditors
The main function of the Court of Auditors is to audit the Union; i.e. to examine the accounts of revenue and expenditure of the Union. It provides statements on reliability and of the accounts and on legality and regularity of the underlying transactions. |
Topic 3: Constitutional Principles of the EU
Some of the main principles of EU law should emerge throughout the module in the course of the problems – it will be important to engage with them as they affect the legal arguments that can be made when ‘activating EU law’ in Block 4 (including when challenging it). |
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This topic will briefly headline some of the principles, so that you are better able to recognise them in action in later stages of the module.
Before discussing the issues concerning the legal effects of Union law we need to look at the hierarchy of sources in EU law knowing that different sources and different acts produce different legal effects. |
Types of EU legislation
• Primary Union Law: Provisions of the Treaty, general principles of law and • Secondary Union Law: listed in art 249 (288-292 of the Lisbon treaty) The Treaty defines the instruments available to the Council, the Commission, the European Parliament: regulations, directives, decisions, recommendations and opinions. |
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• Regulations have general application and are binding and directly applicable in all Member States
• Directives bind the Member States to which they are addressed to ‘results’ (i.e. they direct Member States) but let national authorities choose how they are reached. • Decisions are binding in their entirety upon Member States addressed. • Recommendations and opinions have no binding force. |
We should bear in mind the definition given by the Treaty when we are studying the impact of EU law on the legal systems of the Member States.
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How does EU Law take effect in the UK?
The concepts of supremacy, direct effect, indirect effect, and state liability help describe how EU law becomes operational in the UK. |
Supremacy
The concept of supremacy must be familiar to you from the Public law lecture. Supremacy means that where there is a conflict in an area of Union competence, Union law prevails over domestic law. The principle of supremacy was the CJEU’s creation, but was inserted into the constitutional treaty, and into the Final Act of the Lisbon Treaty in the form of primacy. The principle could be justified as ensuring meaningful effect of Union law. Without the principle of supremacy key provisions would become meaningless. |
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Key statements on supremacy:
Case 26-62 Van Gend en Loos: “… the Community constitutes a new legal order of international law for the benefit of which the Member States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.” |
Case 6-64 Costa v. ENEL : ‘The law stemming from the Treaty, an independent source of law, cannot, because of its special and original nature, be overridden by domestic provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question’.
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The meaning of supremacy has been expanded in other cases and gained importance:
Relying on Union law in a national court When must Union law be applied by national courts? Compared to other international organisations such as the Council of Europe or the United Nations, the European Union has developed a relatively autonomous legal system, a system of norms which binds each of the States and which has been integrated into national law, often without national implementing measures. The extremely important particularity about the Community (EU) legal system, which puts it in a privileged position as compared to other international organisations, developed by the CJEU, is that: The Union constitutes a “new legal order” that confers rights on individuals which national Courts must protect”. In absence of explicit provisions in the Treaty, the Union legal system has been developed mainly through the interpretative practice of the Court of Justice. |
Individuals may derive rights directly from Union law. The Court stated in Van Gend en Loos that “Community law not only imposes legislation on individuals but is also intended to confer upon them rights which become part of their heritage”. The key concept of direct effect is not mentioned in the Treaties, but is frequently used by the Court of Justice. Simply speaking: direct effect means: the ability of individuals to rely on Union law before their national Courts.
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When can Union law be relied on in a national court (i.e. be directly effective)?
Indirect Effect: As you will have discovered above, it is not possible to rely directly on a directive against a private actor the Court of Justice has tried to give effect to private rights implied by directives in two ways (i) by taking a broad approach to what counts as an emanation of the state and (ii) imposing a principle of loyal interpretation upon national courts – so that although individuals may not be able to rely directly on a directive against private actors, national courts are under a duty to interpret law in conformity with Union law. The principle is sometimes called Von Colson effect following the case in which it was first discussed. It is also called the doctrine of substantive effectiveness, or indirect effect. |
State Liability and the creation of a uniform Union remedy
If a Member State fails to give effect to a directive (by enacting implementing measure) and an individual suffers loss or damage as a result then she may bring a damages claim against the Member State. For instance, an individual might not have a domestic law to rely on against a private actor, because the Member State did not fulfil its duty to implement a directive and create the necessary liability. |
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Topic 4: Supremacy and ‘competing interests’
We began to consider the effect of EU membership on national sovereignty back in Public Law 1, looking at the issue of the ‘supremacy’ of Union law. This section will look in a bit more detail at why the apparently established notion of the supremacy of EU has continued to be a source of controversy in the UK and in other Member States (see the Public Law 2 Block Guide on questions of sovereignty). |
Historically membership of the EU has been characterised as a ‘pooling’ of sovereignty – the voluntary relinquishing on the part of Member States of some autonomy, and accepting a degree of collectively decided governance. The principle that EU law was ‘supreme’ and, within its delimited parameters and competence, took priority over apparently conflicting national rules was established before the UK became a member. In Case 6/64 Costa v Enel [1964] ECR 585 the Court of Justice of the European Union stated that ‘the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.’ When the UK did join the then European Community, this principle was neither affirmed nor challenged. It became clear however, that authorities within the UK had not taken the principle completely seriously following the rather stunned response received by Case C-213/89 Factortame [1990] ECR I-2433, the case that reasse
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Even this line of case law does not appear to have unequivocally dispelled doubts. Objections raised in the UK media to the ill-fated 2005 Constitutional Treaty of the European Union, and again to the Lisbon Treaty took issue with the explicit spelling out of the principle of supremacy, in the Declaration of the primacy of Union law over national law (Declaration 17; [2010] OJ C 83/344). To some this represented a significant, threatening change in affairs; to others it rather codified them; it certainly inspired a great deal of discussion as to what made the UK a ‘special case’ constitutionally speaking, and about the ‘absolute’ (or selective) nature of parliamentary sovereignty, with David Cameron suggesting a ‘Sovereignty Bill’. The Sun newspaper still refers to the ‘hated’ Lisbon Treaty.
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The notion of supremacy stirs up the most vehement controversy in the context of issues that are perceived to be particularly nationally salient. Some Member States have constitutional courts that in theory can rule on the national constitutionality of European law – however the powers and status of such courts clearly come into some degree of conflict with the Union’s own court – the Court of Justice of the European Union. In some states, such as Italy, evidence suggests a decreasing trust of national constitutional court rulings on European issues, with national courts instead preferring to channel their queries to the CJEU (as discussed in Fontanelli, G. Martinico ‘Between Procedural Impermeability and Constitutional Openness: The Italian Constitutional Court and Preliminary References to the European Court of Justice’ 16(3) European Law Journal (2010) 345).
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To understand how different Member States jostle to have their interests recognised by the Union, and will confront conflicting Union priorities, it is necessary to consider the make-up of the institutions of the Union, to see whether they are ‘intergovernmental’ (so pit national interests against each other – the Council) or ‘supranational’ – e.g. promoting ‘Union’ interests (the Commission), or promoting cross-border party interests (the Parliament – whose parties do not represent a ‘nation’ or ‘Europe’ but branches of political belief).
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The increasing size of the Union makes it difficult to get anywhere with the previously preferred method of Council voting – unanimity. Hence the Treaty of Lisbon rolled out majority voting (specifically ‘qualified majority voting’, which just means the majority must be a certain size) across most areas of Council activity (for the role and activities of the Council see Topic 3, also the Council website and the Treaty on the Functioning of the European Union, and of course your text books).
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Council: what is the effect on the UK’s ‘say’ within the Union of majority voting?
If unanimity is required, then the UK, as with every other Member State, has the ultimate power to veto activity. To understand the power of the UK under majority voting, it is important to know about the weight of UK votes. |
When allocating Council votes a choice had to be made, as to whether the principle of equality between Member States should be invoked (so each Member State gets the same votes) or equality between citizens (so Member States get votes proportional to their size). A semi-proportional system was arrived at whereby smaller Member States get more votes than their size alone would warrant.
In QMV 74% of votes (255 out of 345) are required, from a majority of Member States (14 out of 27), representing 62% of the population. The UK has 29 votes, so is insufficiently powerful to veto alone. But we should not overstate the difference resulting from voting mechanisms –anecdotally it seems that most legislation is still apparently reached by consensus, so there is still ‘horse-trading’ to get all Member States on board where possible. |
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When might ‘national’ interests be at odds with Union interests – or with the interests of other Member States?
Examples of conflict ‘zones’ are the free movement of services – e.g. where one type of service is legal in some Member States and not in others; free movement of goods for the same reasons; free movement of persons - e.g. where co-ordination rules appear to impinge upon national taxation arrangements; ‘common policies’ – e.g. on agriculture and fisheries, where some Member States argue that they will inevitably benefit less than others; and employment rights – where rules on, for instance the posting of workers, or free movement of services more broadly create challenges for national rules protecting employees, and fears of ‘social dumping’ or a ‘race to the bottom’ (see Topic 9). |
Can the Union act?
Although Union law claims supremacy, it must be remembered that Union activity should have a legal basis in the Treaties (now the TEU and TFEU following the Treaty of Lisbon). This means it should be possible to point to the provisions that give the Union ‘competence’ to act. The tensions between sovereignty and supremacy are theoretically resolved in the principle of conferral – i.e. the Union only has competence to act where the Member States have given it. There are different types of ‘competence’ which means different types of freedom to act – basically, the Union has exclusive competence in a few areas, and shared competence in a great deal. If competence is shared Member States can legislate but not in a way that infringes on Union activity. There are also areas in which the Union has competence to support Member State activity, and finally, where Union competence is not provided for the Union must not act. |
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These areas are not divided by ‘bright lines’ however – it may not be clear for instance whether a matter is a ‘normal’ internal market matter (shared competence) or a competition-related internal market matter (exclusive Union competence). See P. Craig. ‘The Treaty of Lisbon, process, architecture and substance’ 33(2) EL Rev (2008) 137. Moreover, actions taken within a given competence may be taken to have effects on areas outside of Union competence (a loose and fictional example – if the internal market was invoked to require that hospital beds be standardised, that may impact upon hospital layout and on in-patient capacity, and admissions policies, so may be considered to have effects – or engineered to have effects falling outside of Union competence).
The choice of legal basis will affect what decision making procedure is used (see Topic 5) and whether unanimity is required (see above). |
Topic 5: Legitimacy and accountable decision making
The different institutions of the Union have different claims to legitimacy, which may be rooted in direct elections, (European Parliament); indirect elections, (Council of Europe – who are members of nationally elected governments); national parliamentary approval, (Commissioners) political independence, (Judges and Advocates General in the CJEU) or in expertise (e.g. Commission secretariat). Elements of democracy, technocracy, and bureaucracy are thus discernible, with different institutions situating themselves at different positions on the spectrum between intergovernmentalism (fighting the corner of a given Member State) and federalism (representing the collective interests of the Union rather than of a given Member State). This topic will briefly consider types of legitimacy, and focus on the rising prominence of the European Parliament. |
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Are they a bunch of unelected Brussels bureaucrats?
Legitimacy means many different things to different people. Critics who suggest that the Union has a democratic deficit suggest that democratic participation and democratic control are essential for legitimate governance, and point to the power of the non-elected institutions, or to the relative impotence of the elected institution. Those who defend existing arrangements tend to suggest that the democratic deficit discourse both over-simplifies what ‘legitimacy’ is, and over-plays the importance and utilisation of methods of democratic participation. According to a number of theorists, legitimacy can be as much related to administrative efficiency, transparency and appropriate expertise as to a democratic mandate. Certain commentators suggest that the traditional democratic mechanisms would be simply inappropriate in the context of the Union, which is a different sort of polity (political entity) to a national government. Breaking down those elements |
An element of direct democracy subsists in what we know as referenda – contentious instruments at the best of times, but with inherently limited scope. National governments tend instead to be characterised by representative (e.g. parliamentary) democracy. It is this type which is evidently lacking in Union institutions – apart from the European Parliament. However, defenders of the current institutions sometimes rely upon other notions of democracy – such as deliberative democracy. This type of democracy is less reliant on representation than on open discussion in a public sphere. As long as affected members of the public have the opportunity to contribute to that discussion – such as through consultation mechanisms, then it is considered democratic to allow the ‘experts’ to reach a consensual decision. For an excellent critical discussion challenging the idea of elitocracy and of the ‘specialness’ of the European situation, see Bellamy, who is sceptical about the idea that any group of indiv
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Deliberative methods have also been criticised as side-stepping the issue of accountability. What is accountability? Having a duty to ‘give an account’ of oneself is one thing, but accountability can also imply an onerous duty; i.e. that if that account is unsatisfactory then the overseer can exact some punitive power (e.g. by voting the representatives out). It is for this reason, among others, that the ‘democratic deficit’ argument centres on representative democracy, so we will now look at the powers of the representatively democratic body of the Union – the European Parliament.
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The rise and rise of the European Parliament
Despite the existence of provisions in the founding Treaty of Rome for a directly elected parliament, the EP only became a directly elected institution in 1979. Prior to this national parliaments nominated their MEPs. The representativeness of the resulting system was criticised – not least because national parliaments were unwilling to nominate exponents of anti-European political views. When it comes to making law, the influence of Parliament, relative to the influence of the Commission and Council, depends on what decision making procedure is used. The procedure may, unusually, be one in which Parliament has no say, or it may be one in which Parliament is consulted, or it may be one in which Parliament’s agreement is needed, or the act will not be passed (co-decision). You can find out which decision making procedure is required by looking up the provision dealing with that area of law in the Treaties. |
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The Lisbon Treaty alters the inter-institutional balance by transferring a number of matters that used to be decided by the Council using the consultation procedure, to be decided instead by co-decision, which becomes the 'ordinary legislative procedure'. This means that the European Parliament has greater power as its approval is needed for such measures. This step was seen to increase the democratic credentials of Union decision-making, as the Parliament is the only institution with members directly elected by the citizens of the Member States.
Situations arise however, where different institutions take different angles on what ‘legal basis’ is appropriate for a proposed piece of legislation – which is usually in effect a dispute about their respective levels of power to push the legislation through, and may result in a dispute over the legality of legislation. |
Power struggles and challenges to legislation
Consider a directive on waste disposal that ‘requires the Member States, in particular, to encourage the prevention or reduction of waste production and waste recovery and disposal without endangering human health and without harming the environment and to prohibit the abandonment, dumping and uncontrolled disposal of waste (Articles 3 and 4).’ Such a directive will underscore ‘the principle of the free movement of waste intended for recovery and subjects the free movement of waste intended for disposal to conditions consistent with the internal market.’ As such this (real) directive - Council Directive 91/156/EEC of 18 March 1991 – was alleged as having two legal bases in the old (pre-1997) EC Treaty – the articles on environmental policies, and on the establishment of an internal market. |
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The environmental policy basis was linked to a decision making procedure that allowed the Council, acting unanimously, to overrule the Commission and Parliament. The internal market provision however required a co-decisional process. The Council adopted the directive using the former, but the Parliament challenged the validity of the directive, asserting that it was an internal market matter (and so in effect suggesting that it should have had a greater say).
Such legal basis disputes can be brought by a Union institution before the CJEU. The above case was brought - Case C-155/91 Commission v Council (Waste Directive) [1993] ECR I-939 – and the CJEU decided that it was so much more of an environmental policy-related directive than an internal market one that the correct basis had been chosen. Case C-155/07 Parliament v Council (EIB Guarantee) restated that the legal basis for Union legislation must be chosen using objective factors amenable to judicial review and must be based on the aim and content of |
If two policy areas are equally invoked, and require different legislative procedures, then the CJEU may lean towards the area which requires Parliament’s involvement as leaning towards democratic legitimacy. See Case C-178/03 Commission v Parliament and Council [2006] ECR I-107.
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Constitutional legitimacy
As seen above, the legitimacy of Union legislation has been brought into question with regard to the input of ‘democratic’ institutions; however legitimacy questions are raised in other contexts, such as the powers of the Court of Justice of the European Union, especially in its guise as final arbiter over whether the Union has acted within its sphere of competence – a capacity that has been disputed by inter alia the German constitutional court. This is what is meant in the literature by the kompetenz-kompetenz debates – see your text books for more on this. We will revisit the role and powers of the CJEU in Block 4. More all-encompassingly still are questions of the legitimacy of the Treaties, and by implication, the existence of the Union. International and explicitly intergovernmental treaties and conventions have been entered into by the UK with the government acting on its own authority, yet there is something ‘special’ about the nature of the Union – i.e. its |
Subsequent European treaties were ratified without recourse to direct affirmation by the electorate. However, in 2004, the government promised a referendum on the coming treaty which was, by its title, different to other treaties insofar as it was a ‘constitutional treaty’. Whether it was really ‘different’ was a matter of considerable debate; some commentators argued that it was only cosmetically different, and so was really not suited to be subject to referenda. As it was, the UK never had the chance to vote as the constitutional treaty was quashed at the hands of the French and Dutch electorate. This defeat raised further questions, not only about the suitability of the Treaty for popular voting, but also about the problems of holding separate national referenda on one European matter – there were theories that the referenda had been hijacked by national issues and represented a great deal of issues – including generalised resentment of the Union. Whether all the people who voted actually read
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The constitutional treaty, as its name suggests, tried to do two things. Firstly, it made important provisions on the mechanics of the Union, as procedures and institutional formation needed to be revised following the ‘big bang’ enlargement to 25 Member States in 2004, and subsequent accessions. Secondly, it aspired to the politico-spiritual status implied by the language of constitutionality, (see Topic 7) and it was this second aspect that made referenda seem appropriate. The Lisbon Treaty in some ways represented a relinquishing of this second object, reverting to ‘normal’ treaty-drafting in order to more easily get through the procedural changes needed.
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Topic 6: Democracy in the Union
Since the results first came in of the UK General Election on 6 May 2010, talk of domestic electoral reform has attained a new prominence – apparently driving potential coalition negotiations between Liberal Democrats and the two major parties. But what would the discussed reforms look like? You will already be familiar with the details, and relative merits and demerits of the ‘first past the post’ system, which the Conservative party suggested retaining but with re-drawn constituency boundaries (the arguments for and against this suggestion are not politically neutral). The other ‘major’ category of systems is ‘proportional representation’. It looks at the time of writing as though the Lib-Con coalition is instead steering away from PR and is going to moot proposals for an ‘Alternative Vote’ (AV) system, which may well go to a referendum, so no change is guaranteed. |
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A look at the way that the European Parliament is elected should shed a bit of light on the apparently elusive option of PR, and give us a chance to weigh up the pros and cons. Many people do not even realise that we already vote in a PR system when we vote for the EP. It is important first of all to draw a distinction between the two species of proportionality; (1) PR of parties in the Member State, and (2) PR of Member States within the EU.
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Elections based on proportional representation
Regarding (1), the voting must be done within Member States through a system of PR, (according to Council Decision 2002/772/EC) in which parties are proportionally represented. They may be ‘proportional’ according to their presence in closed regions, rather than their national presence, which is the system adopted in the UK. Different Member States use different methods of PR, and different constituency units. It is worth noting here the particular situation in which a direct Europe-wide election is conducted as an agglomeration of separate, national elections, and asking whether this is a ‘federal’ model of Union democracy. Some Member States have different methods being used in different regions – hence in the UK England, Scotland and Wales use the Closed Party List system of PR, while Northern Ireland uses the Single Transferable Vote system. For a sweetie-themed explanation of how the CPL system of PR works see the website of the UK Office of the |
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New frontiers in equal treatment law
UK anti-discrimination law has been dramatically affected over the years by Union law. Directive 2000/78/EC was drawn up on the recommendation of the Commission; the wording was drawn up by the Council, and Parliament gave an Opinion on it. The wording has since been interpreted by the CJEU, an interpretation that national courts are bound to use. The Commission – the institution empowered with legislative initiative – has made proposals for a new Equal Treatment directive. The directive extends Union anti-discrimination law on the grounds of age, disability, religion or belief and sexual orientation to goods and services. Discrimination on those grounds has only been prohibited by Union law in the employment context – see more in Topic 9 and in plenary. • Read Directive 2000/78/EC to understand where Union anti-discrimination law on these grounds currently stands. What input did Parliament have in this directive? • UK law already had wide ranging disability equ |
Partially proportional representation of Member States in the EP
The EU also aspires to the spirit of proportional representation of Member States; the number of EP seats allocated per state is done on a partially proportional system. As noted above, in a multi-state organisation it is not only political parties seeking to be represented in accordance with the size of their support – Member States also wish to have a voice appropriate to their (perceived) importance. Of course, this is quite subjective and an accurate way to measure the ‘weight’ of Member States has not transpired. Simply allocating MEPs according to population has been found as unworkable because of the massive disparities in population size between the biggest and smallest Member States. The European Parliament, like other institutions of the EU, is thus dogged by the national allocation dilemma; allocation according to size would mean a few states utterly dominated all the institutions, and some never had any representatives – a s |
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Topic 7: Journey to Lisbon
The concept of the ‘constitution’ of the European Union has been the subject of heated political exchanges for several years; the debate about a constitutional document has now raged, fairly inconclusively, for the best part of a decade. Expectation of future enlargements inspired a certain existential examination – looking at what it was the Union embodies and is ‘spreading’ through its admission criteria, and how ex-soviet states and original ‘founding members’ could establish some kind of unity of purpose above and beyond creating a market place. |
In 1999 the Cologne European Council declared that:
‘Protection of fundamental rights is a founding principle of the Union and an indispensable prerequisite for her legitimacy. The obligation of the Union to respect fundamental rights has been confirmed and defined by the jurisprudence of the European Court of Justice. There appears to be a need, at the present stage of the Union's development, to establish a Charter of fundamental rights in order to make their overriding importance and relevance more visible to the Union's citizens.’ The declaration clearly drew connections between promoting rights, constitutionalising the Union, and increasing its prominence. The Council also outlined a then relatively innovative procedure for drawing up the Charter – a convention procedure, based on inter-institutional and inter-state dialogue, consultation and deliberation. It stated that a draft CFR: ‘should be elaborated by a body composed of representatives of the Heads of State and Government and of the Presi |
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The convention process was also however quite heavily criticised, as using artificial semblances of participation to give it an unearned sheen of democratic legitimacy. See O. De Schutter ‘Europe in Search of its Civil Society’ ELJ Vol 8 No2 June 2002 198 for an excellent discussion of shortcomings in the convention process, with evidence gathered from participants.
This sort of civil society involvement creates a sort of democratic paradox – its consultation-nature means there is no obligation to take account of any input, and there was apparently little documentation of the consideration given to consultation pieces, and so very little accountability to the participants – a sort of ‘Hearing without promising to listen’. However, as the participants were civil society organisations, which not being elected by the populace, not being democratically accountable themselves, and arguably in some cases not very representative of the populations of their home Member States, there is the problematic i |
The convention process quickly caught on as a legitimacy-enhancer, and as capable of endowing a document with constitutional status. In 2001 the Member States issued the ‘Laeken Declaration’ which famously asserted that Europe was ‘at a crossroads’, and had a section entitled ‘Towards a Constitution for European Citizens’. It set out the terms of work for a ‘constitutional convention’ to work on options for the way forward.
This convention worked between 2002-3 to put together a text, which was subject to review and amendment by Union institutions, and was put to various electorates in 2005. The UK never had a chance to vote on it, as the rejections in the Netherlands and France were seen to destroy the chances of that ‘constitutional treaty’ coming into force. |
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The constitutional treaty – or a ‘treaty establishing a constitution for the European Union’, provoked considerable controversy, as evidenced by its reception in those Member States having referenda. However, commentators supposed that the national referenda had been hijacked by ‘bigger’ issues, or dissatisfaction with Europe as a whole, rather than with the text, and of national resentment of then current social and political circumstances. There may also have been backlash voting in view of the then recent enlargement treaty – the so-called ‘big bang’ enlargement of 2004, which added 10 members to the Union. Reactions were mixed.
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Even so, the text itself was the focus of some not inconsiderable vitriol, while many of the supporters of consitutionalisation were lukewarm about it. To many it did not seem all that significant, as for all the rhetoric about its ‘constitutional’ nature, the subject matter echoed in large part that of preceding treaties – e.g. reconfiguring Member State representation in different institutions, and introducing or adjusting rotation systems to take account of increased Union membership. Those more symbolic elements of the text were criticised as amounting in fact to very little, or rather re-stating the existing state of affairs.
From this perspective it is interesting to ask at what point it makes sense to talk about ‘establishing a constitution’, if we understand a constitution to be a body of rules and principles rather than a written text – few would claim that in 2005 the Union lacked a constitution, or constitutional principles. However, many people would agree that its constitution was c |
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The Union institutions were clearly dismayed by the 2005 referenda. It was not clear whether the text would die, be amended or replaced wholesale – it seemed unlikely that for the simple reason of the problems of governing the enlarged Union, that there would be no Treaty any time soon. As it happened a large number of the DCT provisions were adjusted and then repackaged in the Lisbon Treaty, the aims of which appear to have been to salvage the pragmatic procedural changes introduced by the DCT, and present them to Member States unhampered by too many controversial references to constitutionalisation – embodying in fact the same treaty format as preceding treaties. The effects of this were certainly interesting, with certain camps accusing the Union of trying to get the DCT effected by stealth, and national factions demanding national referenda on Lisbon, whilst others remarked that this now had simply the status of a treaty and should be processed as one.
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The road to enactment has not been an especially smooth one. The Irish rejection of the Lisbon Treaty was thought to signal a death knell for what was in some quarters seen as the DCT Mark II. Following a period of consultation the Member States agreed to incorporate concessions to Ireland in the text, which was duly altered and a second referendum was held in 2009 – at which it was accepted by a considerable majority, with 67.1% in favour and 32.9% against the Treaty (with a 58% turn out).
However, all Member States eventually ratified, and Lisbon came into force on 1 December 2009, so we are now living in the ‘Lisbon’ era of the EU. This entails a number of procedural adjustments to cope with enlargement, and also some more ‘constitutional’ changes including the creation of a President of the European Council and a High Representative for Foreign Affairs, and the introduction of a ‘Citizen’s Initiative’ mechanism. It also formalises the status of the Charter of Fundamental Rights (see Topi |
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United in diversity?
One problematic issue when considering the constitutional effects of Union law is that of different speeds of integration. Groups of Member States may choose to engage in certain activities that have implications for the Union as a whole. The UK does not participate in some EU initiatives, but cannot help being affected by them. Two examples here are the Euro currency, and the Schengen group. There are clearly strengths and weaknesses to multi-speed integration, just as there are benefits and disadvantages to ‘watch and wait’ strategies employed by the UK in some areas of co-operation. The Schengen area is one without internal borders, so operates using common procedures for visas for short stays, asylum requests and border controls. All EU Member States are Schengen ‘co-operators’ but not all are fully fledged Schengen members – either because they wish to maintain national border controls, or because they have not yet met the criteria. The UK and Ireland have chosen to maint |
The division between Schengen matters and non-Schengen matters is not always clear, and neither is the division between Schengen matters that do or do not have any impact upon the UK – see Case C 482/08 United Kingdom of Great Britain and Northern Ireland v Council of the European Union, and think about the constitutional issues raised by multi-speed integration.
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Topic 8: Charter of Fundamental Rights
The purpose of setting up a convention to draw up a Charter of Fundamental Rights, was to make the ‘overriding importance and relevance’ of fundamental rights ‘more visible to the Union's citizens’. This rather suggests that it was envisioned at the outset to be a symbolic document, something to engender feelings of attachment between citizen and Union – and not as creating anything that was not already thought to exist. As to whether it does in fact add anything to the protection of those principles – that’s something of a moot point. Various Member States are especially keen to emphasise its status as a statement only. For some years its legislative impact was rather uncertain – it was described at various points as a declaratory document, but the CJEU eventually used it as an aid to interpretation (see E. Drywood Giving with One Hand, Taking with the Other: Fundamental Rights, Children and the Family Reunification Decision’ 32(3) European Law Revie |
When the DCT died, the CFR was again in legislative limbo, but it has been incorporated into the Lisbon Treaty. However, the amount of caveats and opt-outs mean that its exact impact – in spite of having Treaty-status – is still uncertain. Member States have sought declarations that the Charter does not add to rights already guaranteed by the Union, and the UK, Poland and Denmark have obtained Protocols denying that the Charter alters their national laws. The UK authorities in particular were concerned about the employment ‘rights’ in the Charter, as other Member States offer stronger rights to employment, and in employment than does the UK.
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The EU Charter of Fundamental Rights echoes in many ways the European Convention of Human Rights, which is of course a document from a non-EU body – (the Council of Europe). The degree to which the CFR makes ECHR rights justiciable within the CJEU is rather a murky question. The CJEU has clearly not considered itself empowered to answer questions on the ECHR, while ECHR rights have tended to form a ‘backdrop’ to decisions, rather than being at their forefront.
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The Charter applies only to matters falling within the matters covered by Union law, so does not create or describe free-standing rights. However, where it does apply it might prove more accessible in some Member States than rights contained in the ECHR. Its narrower application could potentially make it stronger when it is activated, while getting a CJEU reference could be both easier and more fruitful than an ECtHR ruling. (Think about the different ways these courts are accessed, and think about the effect of the rulings).
The Charter may increase in importance in view of concerns from NGOs such as Amnesty International about human rights ‘backsliding’; i.e. candidate countries wishing to join the EU have fairly high threshold criteria, in terms of economic stability, democracy and also human rights (see the ‘Copenhagen criteria’) which are all rigorously monitored before joining; the incentive for ‘compliance’ is membership. However, once acceded, there are limited mechanisms for policing con |
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The clash between ‘fundamental rights’ and ‘fundamental freedoms’
One important area of tension is the idea of common employment-related rights – including the right to strike – and their apparent confrontation with market freedoms and the economic core of the Union. This is explored in more detail in the next Topic. The plenary will consider the way that the Union has typically treated ‘fundamental rights’ as a component of a more or less national nature to be ‘weighed up’ against European economic concerns. |
Topic 9: Workers’ rights
As noted in Topic 8, one of the most controversial features of the Charter of Fundamental Rights is its section on employment rights. This area is especially interesting as one in which there is considerable national discretion, and so there is some diversity between Member States as to what ‘employment rights’ look like; however, it is also an area in which there have been some ‘harmonising’ pressures attributable to the single market. |
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Fears of emboldening rights
Some Member States are about upward harmonising pressures. Different institutions obviously take different standpoints – hence the UK government during negotiations over the DCT and Lisbon Treaty made clear its aversion to being bound by new or strengthened employment rights, given the different patterns of employment rights that exist in other Member States and the different constitutional importance laid upon e.g. a primary ‘right to work’. |
As a result a employment policy appears in Article 151 of the TFEU as separate to areas of shared competence suggesting a rather weaker (woollier?) Union input (Article 153 provides for the Union to have supporting competence); the Union and Member States:
“Shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.” |
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There is an emphasis on Member State particularity and prerogative:
“To this end the Union and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Union economy.” These provisions are further subject to specific exclusions in Article 153(5): “The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs.” |
With regard to the Charter of Fundamental Rights the UK and Poland Protocol states that ‘for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.’
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Title IV is the ‘Solidarity’ chapter, which deals with, inter alia, workers’ rights – including the ‘right of collective bargaining and action’ and ‘fair and just working conditions’. The protocol further makes clear that references to ‘national laws’ only apply if such national laws exist – i.e. they cannot be interpreted to require such provisions into existence. It is worth recalling here that the very nature of a right to strike, for instance, has long been in contention in the UK, where it is sometimes framed not as a protected positive right, but merely a negative concession – an agreement to waive liability for strike action in approved circumstances. Union wide provisions on employment rights have thus been neutralised as much as possible to avoid pressures of upward harmonisation.
However, case law on free movement of services trade unions in the UK have come to view Union law with suspicion, not as an instrument for improving, but instead for eroding existing employment righ |
Fears of eroding rights
There have long existed a number of fears, which have not so far been allayed, of the realisation of the ‘race to the bottom’ theory. This theory suggests that producers ‘unhampered’ by certain employment regulations gain a competitive advantage, which other producers seek to emulate, either by out-sourcing labour to exploit ‘laxer’ laws in other Member States (a practice called ‘social dumping’), or by challenging national laws as being obstacles to the free movement of services. |
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Double-edged employment rights?
This ambivalence is partly due, perhaps counter-intuitively, to a set of cases in which the ‘right to strike’ was recognised as a fundamental right. An important CJEU case in this respect is Case C-341/05 Laval. |
Laval is a case dealing with posted workers, (workers employed by a company in Member State A, to work in Member State B) and involves some fairly complicated arguments about the Posted Workers Directive. Basically, the workers posted from Latvia to Sweden were being paid a lower wage than that provided for in the Swedish collective agreement, and so Swedish workers boycotted the site, effectively preventing the work from continuing.
One of the main issues arising from the case was the perceived conflict between a right to strike and to collective action, and the Latvian company’s right to freedom to provide services in other Member States. The CJEU recognised collective action as a European right, but added that such action must create a disproportionate interference with fundamental free movement rights. This finding has fuelled ongoing debates not only about strike-rights in particular, but about ‘fundamental rights’ in general. Several commentators have criticised the way in which the balance has |
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Topic 10: The economic underpinnings of the free movement of persons
The most prominent individual right derived from Union law is one of mobility – the freedom to move and reside in other Member States. This section will consider the origins of this freedom. Sometimes, when practices or rights have become established it is easy to forget, or even think about, their rationale – simply accepting tautologically that we can do ‘x’ because ‘z’ gives us a correlative right. In the same way, the question ‘why can a UK national move freely between EU states’ might be answered ‘because the UK is a member of the EU’. However, it is important to think about why membership of the EU creates this European space and personal right. This question can be broken down further – why was free movement of persons ever considered a part of economic union? Was it a means or an end in itself? Has that changed at any point? If it has been a means, have the ‘ends’ in sight changed over the life of the EC/ |
The beginning: the bare bones
The free movement of workers was one of the four ‘fundamental freedoms’ in the Treaty of Rome (Title III, Article 48). The name of the freedom – movement of workers – was important as it comprised not only a minimum mobility but a freedom to work in other Member States – hence stipulated a principle of non-discrimination on the grounds of nationality ‘as regards employment, remuneration and other conditions of work and employment.’ |
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Why was this equal treatment of workers considered necessary? What would the effect of the loss of this provision on the other rights – to accept offers of employment and to move and reside for the purpose of employment?
As a result of these provisions cross border employment became a real, and relatively realisable, possibility for many workers. But why was this a component of an economic treaty (note it established the European Economic Community)? While some narratives employ a fairly simplistic approach – the EEC was an economic entity with purely economic ends, which bit by bit, since becoming the EC and then the EU, has acquired more ‘social’ or ‘societal’ policy objectives – this is arguably misleading. Some commentators point to the clear ‘social’ and political ambitions that the founding fathers had for the Community; others point to the Title heading – ‘Persons, services and capital’ to show that ‘workers’ - the only ‘persons’ addressed therein, were conceived of on |
Traditionally free movement has depended upon three elements:
• Nationality • Cross-border element • Economic activity Nationality is relevant because to fall within the original Treaty provisions on free movement an individual has to be a national of a Member State. This means that the ‘gateway’ to Union law has effectively been governed by Member States. |
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Article 48(2) of the original Treaty of Rome provided for ‘the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.’ It is clear from the secondary legislation – Regulation 1612/68, which is the ‘specific expression’ of the provision of free movement of workers, that ‘workers of the Member States’ must be nationals of Member States to benefit from the freedom. Article 1(1) of that Regulation stated that:
‘Any national of a Member State, shall, irrespective of his place of residence, have the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals of that State.’ |
The nationality hurdle remains the case following subsequent Treaty amendments and additions, and including the introduction of Union citizenship – which is in turn dependent on Member State nationality (see Topic 13). As Catherine Barnard points out, ‘one Member State is not in a position to criticize another member State’s attribution of nationality’ – whether another Member State is perceived to be too strict – so entrenching exclusion of racial minorities – or too lax, so allowing an ‘easy’ way in to the rest of the Union.
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A case in which a Member State’s rules on gaining nationality were so contentious as to be altered swiftly afterwards is Case 200/02 Chen [2004] ECR I-09925.
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Cross border element
The rights of residence and equal treatment associated with migrant work are exactly that – migrant rights. This is increasingly causing some concerns with regard to the apparent incongruity with Union citizenship and non-discrimination – that some citizens cannot access rights because their situation is considered to be a ‘wholly internal’ situation and so without the scope of Union law. See Topic 15. |
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Economic element
This condition is especially interesting because of its broad definition – both in terms of what counts as ‘work’ – see Topic 12 – but also in terms of which other activities have come to justify free movement rights. In the early 1990s free movement rights extended 7beyond workers to cover also students, retirees and self-sufficient migrants. In each of these can be discerned some ‘economic element’; students may be considered as economic consumers, but also as potential economic actors; retirees have a former economic activity link; while the self-sufficient are economically ‘well off’ and as such may contribute to the economy (e.g. through consumerism) whilst not being a drain (e.g. by claiming benefits). The piece of legislation covering this last group came to be known colloquially as the ‘playboy directive’. |
This narrative pre-supposing net economic gain from migrants might not ring true when considering the extent of the rights that came from fairly early on to be associated with work – rights that lend some credence to the ‘social union by the back door’ thesis. Following the creation of a broad free movement right for ‘citizens’ it would seem that the free movement framework had moved substantially away from being a ‘worker’ right to a ‘person’ right. The citizen right of free movement was established in the Maastricht Treaty (then Article 8 of the EU Treaty; now Art. 21 TFEU), but arguably did not come to very much until it was combined with the notion of non-discrimination in Martinez-Sala and subsequent cases (see Topic 13).
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However, non-economically active citizens are required to not be a burden on the public purse. As a result we can see an emerging hierarchy of migrant categories with those who have the stronger claims to economic activity – workers – at the apex, and increased limitations and conditions further down the economic hierarchy.
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Free movement is not just about physical mobility and permission to reside elsewhere – it is about facilitating that movement, making it possible by removing obstacles to movement and reducing disadvantages that might otherwise be suffered on moving to another Member State. Hence free movement comprises a set of social rights. There is a circular relationship between the concepts – i.e. because free movement is about encouraging mobility of workers, some social dimension is necessary, but also because free movement includes social rights, some restriction – or justification is necessary. Work provides that justification. The next section will look at the work related social right to not lose the value of your social security contributions (mainly made by workers) when moving between Member States. Topic 12 will then look at the social rights of migrant workers in the host Member State. We will then look at the ‘gatekeeper concept’ of migrant worker to ask who qualifies and how good a job it does of
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Topic 11 Taking welfare rights to another Member State
If migrants were to lose a right to welfare benefits on moving between Member States, such loss would create quite an obstacle to free movement; the Union has long recognised that a basic right of movement and residence is not enough to make such a freedom meaningful. The Treaty of Rome contained a provision prohibiting discrimination on the grounds of nationality, and also required that the Council ‘adopt such measures in the field of social security as are necessary to provide freedom of movement for workers’. |
Free movement thus implies some social rights, and looks to maintain migrant worker rights to welfare benefits. There are two possible sources for such rights – the home Member State, and the host Member State. This section will concentrate on keeping rights established in the home Member State through ‘social security coordination’, which is premised on the principle that migrant workers should be treated by their state of origin as equal to workers who stay in the home state. In other words, Member States should not penalise their nationals for exercising their free movement rights.
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What is social security?
This right was based on a construction of the EU migrant as a worker and so looks at benefits not awarded on the basis of ‘need’ – which may be classed as ‘social assistance’. Social security benefits are defined according to their purpose – they should fit into one of the categories listed in the Regulation (883/2004) – e.g. sickness, maternity, old age benefits, and they should be ‘granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position’. The benefits mostly affected by coordination are in fact contributory benefits – e.g. such as a state pension. In other words, workers who have been paying their national insurance should not lose that value on moving between Member States. |
Some benefits can be moved between Member States. These have traditionally been limited to closely work-related benefits – i.e. benefits that have been ‘earned’ through contributions (such as State Retirement Pensions). This is what we mean by social security ‘coordination’, and two principles are here important – (i) exportation – taking a benefit you are claiming with you to other Member States and (ii) aggregation – meaning that your contribution record goes with you between Member States, so that if you later claim a contributory benefit, contributions made in other Member States are taken into account. The legislation covering social security coordination (Regulation 883/2004) now applies to all nationals of Member States who are, or have been, subject to the legislation of one or more Member States – not just workers (as did Regulation 1408/71). The general idea is one of obstacle removal – avoiding creating disadvantages, by removing entitlements, for people purely as a result of t
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How is co-ordination different to harmonisation?
The co-ordination of social security systems also reveals an early presumption that workers would be the people who benefited from free movement, as it was persons making social security contributions – people who either are or have been workers – whose movement was facilitated. ‘Social assistance’ benefits – typically benefits ‘of last resort’, were explicitly excluded. However, some non-contributory benefits are also classed as social security and so fall into the co-ordination system. To determine whether a benefit will be treated as social security, and so exportable, or as social assistance – so not ‘exportable’, a number of factors are considered. It is not enough for a Member State to declare that certain benefits are social assistance and so cannot be taken to another Member State for that to be the end of the discussion. If a benefit has elements of ‘social security’ – e.g. if it is for one of the purposes in the Regulatio |
In 2000, the EU Administrative Commission published an explanation of what makes a benefit ‘special’ enough to allow a Member State to refuse to allow it to be taken to another Member State:
“The following cumulative criteria are particularly relevant in determining whether a benefit is "special": (a) The benefit has the characteristics of a social security benefit of a "mixed type", in that it gives the beneficiary a legally defined right to benefit which is a characteristic of a social security benefit but also contains features of social assistance, in that the particular financial and/or other needs of the individual are taken into account. (b) The characteristics of the category of benefit are closely linked to a particular social and economic context in the Member State where the beneficiary resides. (c) In the case of insufficient economic resources, the benefit is designed to provide assistance. (d) The award could be subject to means testing, although due to its general nature it is not alway |
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The UK has relatively recently had to adjust its rules on Disability Living Allowance, Carers Allowance and Attendance Allowance. These benefits are not contribution based, and had been classed as benefits that could only be claimed by persons in the territory of the UK.
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Fairness
There is possibly another, as yet undeveloped, condition, which is that it must conform with the general principles of Union law (and possibly not lead to unfairness) to refuse to export it. As a result of these conditions, numerous non-contributory benefits have been found to be exportable, potentially facilitating free movement beyond persons with contribution records. |
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Topic 12 Equal treatment of migrant workers and national workers in the host Member State
Having looked at the possibility of retaining some welfare rights in the home state, this section now looks to the other avenue – of obtaining social rights in the new, host Member State. Instead of being based on the value of national insurance contributions already made, migrants can invoke the principle of equal treatment to gain access to non-social security benefits – which means that migrants are placed on a generally equal playing field with nationals when it comes to being able to subsist, and so to work, in a Member State. |
These twin avenues require us to think about what a system of welfare means to us, and how we allocate membership – and to what degree we make that membership of a ‘solidarity network’ conditional. Home state benefits may indicate reliance on past contributions, or on nationality as a crucial ‘link’, while host state benefits may suggest that residence – or current contributions accrued through work – are what is important.
The key here is that Member States may in effect create systems that allow migrant workers equal access to benefits – but that such equality begins to evaporate if work ceases – which paradoxically may be the major time that migrants would need to call upon the welfare system. |
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The concept of equal treatment of migrant workers and national workers built into the original free movement right was elucidated in Regulation 1612/68/EC, which outlined the areas in which migrant workers should be able to invoke the principle of equal treatment. These areas were not necessarily narrowly confined (see Article 7(2) on social and tax advantages), but they could have been interpreted narrowly as referring purely to closely work-related rights. However, an increasingly broad approach has been taken in the case law, as it has been argued that it is only by a broad approach to equal treatment that migrant workers will really find themselves equally able to take up jobs in host Member States. Inadvertently or not, migrant workers have increasingly gained ‘social rights’. As those rights develop it is natural to ask whether it makes sense to conceive of those rights as merely social ‘means’ to economic ‘means’ (cross-border labour) to an economic end (establishment of the single market)
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Equal treatment – the scope
Article 45 TFEU makes clear that migrants ought to have equal access to employment, and equal working terms and conditions; benefits linked to work have been fairly uncontroversially included in Regulation 1612/68, with specific measures on equal right to involvement in trade unions, (Art. 8) equal ‘rights and benefits in matters of housing’ (Art. 9), and equal access for the children of migrant workers to education in the host state ‘under the best possible conditions’ (Art. 12 - this phrase will re-emerge later this term and reveal considerable consequences – look out for it!). |
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However, when it comes to claiming welfare benefits in the host state that are not closely linked to work or necessarily to the performance of work – in the same way that enabling access to housing and schooling might be said to facilitate the movement of workers – such ‘other’ benefits not expressly included in the Regulation have been increasingly included in Article 7(2), which states that an EU migrant worker ‘shall enjoy the same social and tax advantages as national workers.’
This provision has been interpreted broadly so as to effectively entitle EU migrant workers to equal treatment with nationals in the welfare context, in spite of the apparent exclusion of ‘social assistance’, as a matter for Member States, from the realm of Union law and competence. While the principle that the management of welfare arrangements is a national matter holds, Article 7(2) has been found to encompass a broad range of benefits, and to represent a strong undercurrent of Union law – a presumption of equ |
A. P. Van Der Mei outlined the reach of Art 7(2) in Free Movement of Persons within the European Community: Cross Border Access to Public Benefits (2003, Hart: Oxford) noting its coverage of social security like benefits – childbirth loans, minimum income benefits for old people, social assistance benefits, unemployment benefits, family benefits, student finance, family railway discounts, benefits to cover funeral expenses, right of residence for unmarried partners, and to request a change of language in court proceedings.
In Case 207/78 Even [1979] ECR 02019, Article 7(2) was found to comprise all advantages ‘which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory’. This gives a clear steer for a broad interpretation which would include some social assistance benefits; it seems that there is an ever diminishing number of benefit |
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For rights, privileges or benefits that do not fall into the ‘social advantage’ category, there is always the possibility of invoking the general principle of non-discrimination of migrant workers on the ground of nationality implied by Art 45 TFEU – which potentially carries greater clout than Article 18 TFEU, as it requires, according to the Court, equal access to rights or benefits which are essential to a worker’s wellbeing and which may be regarded as a corollary to freedom of movement (Case C-334/94 Commission v France [1996] ECR I-1307). It is now difficult to imagine any sort of benefit that could be withheld from migrant workers. (See war benefits cases for exceptions - Case C-386/02 Baldinger [2004] ECR I-08411).
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Is ‘nationality equality’ a fundamental right?
There are several possible reasons for the increasing ‘fundamentalisation’ of the principle of equal treatment on the grounds of nationality. By rewarding migrant work, Union citizens are encouraged to be ‘good Europeans’ – i.e. be economically active and to engage in cross border economic activity. Also, without the straightforward facilitation of cross border work, it would be an unattractive option for many. It seems that the equal treatment measures also go beyond facilitating ‘spells’ of work abroad, to allow migrants to option to settle in other Member States. In fact, arguably the provisions do too little to facilitate complicated migratory practices, with frontier workers, and pendular migrant workers disadvantaged by slightly cumbersome coordination mechanisms. Instead, the provisions look to people who move ‘wholesale’ for substantial lengths of time, and explicitly aim to facilitate the ‘integration’ of migrant workers in the |
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The principle of non-discrimination on the ground of nationality has been elevated beyond the purely economic to signify something more affective. It is here worth noting that difference resulting from nationality per se has not traditionally provoked the kind of moral opprobrium resulting from other forms of discrimination (other than where it is an indirect form of race discrimination). Nations have always been permitted to accord some degree of preferential treatment to their own nationals – there may be cases where such preference is actually considered necessary from a humanitarian point of view. Hence a nation cannot deport its own nationals but it clearly can deport non-nationals. And it is also clear that Art. 45 TFEU has its limitations. Non nationals can be kept out of public service roles – for reasons such as concerns about national security. However, if a Member State chooses to allow nationals of another Member States to work in those roles, then they are entitled to equal treatment once t
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If we combine those differences with the conditions attached to the equal treatment rights outlined above we can see that nationality-based equal treatment might be characterised as a rather ‘thin’ right. Hence while migrants who can conform to the definition of worker within Regulation 1612/68 are automatically entitled to social advantages without being subjected to ‘any requirement as to nationality, residence or duration of employment’, as stated by AG Ruiz-Jarabo Colomer in Case C-138/02 Collins [2004] ECR I-02703, the obvious flip-side to this is that migrants who are not workers may be subjected to conditions.
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For worker and non-worker EU migrants alike, there exists a right of non-discrimination on the grounds of nationality following from Art. 45 TFEU. Direct discrimination, which would be different rules according to nationality, can only be justified on the grounds of ‘public policy, public security or public health’, Article 27 Directive 2004/38 [2004], while indirect discrimination – which is setting conditions that migrants and nationals alike must meet, but are more difficult for migrants, is more broadly justifiable.
The various hurdles that the Court has encountered, created by Member States to effectively withhold benefits from non-nationals, suggests that while the popular media may engage in rather generalised ‘benefit-bashing’, it is foreign benefit claimants that present the most challenging ‘sell’ to their own nationals. Following the ‘Big Bang’ accession, (ill-informed) complaints about Eastern Europeans taking jobs, houses and benefits were rife in the UK. |
The opening up of labour and associated welfare systems gives us an opportunity to reassess what it is that we think ‘justifies’ welfare and whether a shared nationality really is that special. Ferrera suggests that we need to sense a ‘clearly demarcated and cohesive community, whose members feel that they belong to the same whole and that they are linked by reciprocity ties vis-a-vis common risks and similar needs’ in order to ‘approve’ of the welfare state. (See M. Ferrera ‘Friends, not Foes: European Integration and National Welfare States’ Working Paper Florence 10/2006 (Europea Unita di Ricerca sulla Governance URGE 2006) ).
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A potentially ‘challenging’ area in terms of equal treatment is that of frontier workers.
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Topic 13 Who is a worker?
The expansion of ‘advantages’ covered by the free movement provisions, which then become accessible to migrant workers, has been accompanied by an expansion of those persons covered by the term ‘worker’. The definition of ‘work’ is moot and mutable, but has always been important because of the package of rights (not only for the workers but for their families as well) that is associated with it – in comparison with the historically ‘excluded’ category of economically inactive EU migrants. At one extreme it is clear and uncontroversial that persons in full time employment are entitled to equal treatment in the host state on the grounds of their ‘work’. However, questions about the requisite nature, duration, productivity, and self-sufficiency of that work have arisen over the years. |
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The issue of what constitutes work is sensitive, because of the ‘complete’ nature of equal treatment to which workers are entitled. Member States have typically taken restrictive approaches – possibly not simply to minimise the social rights of migrants, but to minimise the ‘cost’ of migrants; i.e. restricting rights to those whose work has an economic value outweighing any benefit uptake. However, it has become clear that (a) Member States are not entitled to devise their own ‘test’ for work as work and worker must have a ‘Union meaning’, and (b) that such a Union meaning must be broadly and not restrictively interpreted.
(a) The need for a Union meaning of work Member States are not free to set their own definition of work, and so to limit the scope of migrants fitting within Art. 45 TFEU. This may be seen as an intrusion into the construction of welfare systems – a national matter, but allowing the reach of Union law – and rights stemming therefrom – to be curbed nationally would |
In spite of the apparent ‘arrival’ at a Union definition, delimiting the scope of the migrant worker definition has not really been straightforward. Moreover, wherever a possible ‘condition’ might be found, there are dangers of disproportionately excluding certain demographics. For instance, part time work tends to be more prevalent generally amongst women than men, and is especially important to lone parents - who are firstly more likely to be women, and secondly more at risk than the general population of social exclusion.
However, the balance between a Union-wide system and Member State ‘sovereign’ rule over social security systems continues to be struck. In Germany for instance, there have been rules about who (including nationals) can join the social security system in the first place – i.e. persons should work more than 15 hours per week to be eligible. Where this was challenged in the context of sex discrimination, the Court acknowledged that such persons had to be considered workers |
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The economic model and the issue of ‘care’
One area in which the broad definition of work runs into some logical difficulties is that of care provided by non-professional carers. In Züchner, a man was refused entitlement to care allowance on becoming too ill to work, because his carer – his wife – had not had to give up work to care for him. The rule that carers allowance only be paid to formerly employed carers was thus challenged on the ground of indirect sex discrimination, as women were more likely to be already ‘at home’; at the material time such a claim could only be made by a worker, so the Court had to determine whether Mrs Züchner was a worker and so entitled to protection from sex discrimination. The German rule is problematic from a number of points of view; someone who was not previously working may be more likely to wish to find to work on their spouse becoming incapacitated to make up for lost income, and this loss of opportunity to seek work due to caring duties has significan |
What about in more formalised situations, where a care allowance is used in lieu of ‘payment’ to remunerate a carer?
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