Category: 1.1 News from the Area of Freedom, Security and Justice

Daily news from the Area of Freedom, Security and Justice.

Mostly Found via:
Statewatch – http://statewatch.org
Eu Logos Athena – http://eu-logos.org/
Euobserver – http://euobserver.com/
Presseurop – http://presseurop.eu
Euractiv – http://euractiv.com/
European Media Monitor – http://emm.newsbrief.eu/overview.html
Réseau Universitaire Européen Droit de l’Espace de Liberté, Sécurité et Justice – http://gdr-elsj.eu/

What Role for the European Parliament under Article 50 TEU?

ORIGINAL ON EU LAW ANALYSIS

by Darren Harvey, (PhD Candidate in Law, Darwin College, Cambridge)

Introduction

Last week, Alyn Smith MEP for Scotland received a standing ovation from the European Parliament following a passionate speech in which he expressed the desire for Scotland to remain within the European family of nations: link here.

This immediately brings to mind a further aspect of the debate surrounding the UK’s position regarding the Article 50 TEU withdrawal process which, to my mind at least, has not been given full consideration to date; namely, the need for consent of the European Parliament before any withdrawal agreement may be completed.

The relevant paragraph of Article 50 reads as follows:

  1. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

Leaving to one side the question of how the Article 50 process may be triggered in accordance with the UK’s domestic constitutional requirements (under Article 50(1)), it is clear from Article 50(3) TEU that once notification to withdraw has been made, the Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2. In other words, the two-year clock starts ticking from the moment notification is made by the UK of its intention to leave the EU, unless of course the European Council votes unanimously with the UK to extend this period, or the UK withdraws the notification (if that is even possible; Article 50 is silent on this point).

This means that, should no deal be reached within the two-year period and should no unanimous agreement be reached in the European Council to extend the negotiations (a distinct possibility in my view), it is clear that the UK’s membership of the EU would simply come to an end.

However, in the event that a deal is reached, not only will its entry into force be dependent upon a qualified majority vote in favour in the Council, but also, and crucially, prior to such a vote taking place, the consent of the European Parliament is first required.

This raises two questions: first, how does the European Parliament give or withhold its consent? And second, what happens if that consent is not forthcoming?

Giving Consent

Turning to the first of these questions, the default decision-making rule for the European Parliament is set down in Article 231 TFEU which provides: ‘Save as otherwise provided in the Treaties, the European Parliament shall act by a majority of the votes cast. The Rules of Procedure shall determine the quorum.’ According to Rule 168(2) of the European Parliament’s Rules of Procedure ‘A quorum shall exist when one third of the component Members of Parliament are present in the Chamber.’

Given that Article 50 TEU is silent on this issue, the default rule in Article 231 TFEU would appear to apply. However, Article 82 of the European Parliament’s Rules of Procedure, entitled “Withdrawal Agreements” provides: ‘If a Member State decides, pursuant to Article 50 of the Treaty on European Union, to withdraw from the Union, the matter shall be referred to the committee responsible. Rule 81 shall apply mutatis mutandis. Parliament shall decide on consent to an agreement on the withdrawal by a majority of the votes cast.’

It therefore appears to be the case that the default quorum rules in Article 168(2) Rules of Procedure apply. This means that, should the full European Parliamentary chamber vote on the UK’s withdrawal agreement (which seems likely), a simple majority of votes cast shall determine the Parliament’s position.

However, unlike the rule for accession treaties set down in Article 49 TEU which requires Parliamentary consent by a majority of its component members: i.e. a number of votes greater than one half of the European Parliament’s total number of MEPs; Article 50 TEU merely requires a majority vote of at least one third of the total number of MEPs.

In other words, provided that more than one third of the total members of the European Parliament turn up to vote on any future withdrawal agreement, a simple majority of votes cast shall be sufficient to determine the European Parliament’s position.

Withholding Consent

What happens if the European Parliament withholds its consent from the UK’s withdrawal agreement? According to Article 50(2) TEU the answer appears clear: without European Parliament’s consent, there can be no move to a qualified majority vote in the Council and thus the withdrawal agreement cannot be concluded. Should this consent be withheld for the duration of the two-year period running from the moment the UK signals its intention to withdraw, it seems that the UK would once again be facing the prospect of having its EU membership come to an end without a deal.

Alternatively, should a deal be reached within the two-year period but the European Parliament signals its intention to withhold consent, it is conceivable that this may prompt a move to extend the negotiating period via a unanimous vote of the European Council and, in so doing, perhaps provide the European Parliament scope to have some input into the substance of the withdrawal agreement.

In light of this, the role of the European Parliament is not to be taken lightly in the months and years that follow – not least because national governments will have much less control over their MEPs than their representatives in the European Council and the Council.

Furthermore, whereas Article 50 (4) TEU makes it clear that for the purposes of Article 50 (2) and 50 (3) the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it, nothing is said about the MEPs of the withdrawing state. Will the UK’s MEPs be involved in the vote to give consent to the withdrawal agreement prior to moving to Qualified Majority Voting in the Council?

To my mind this brings an additional and as yet largely unexplored question to the table regarding the role that Scotland (and perhaps Northern Ireland) can play in the Article 50 withdrawal process. Whilst it may not be possible as a matter of UK domestic law for the devolved governments to block Brexit (see Mark Elliott’s post), there would appear to be scope for Scottish and Irish MEPs to begin building alliances across the European Parliament to withhold consent from any future withdrawal agreement lest their interests be protected. The great risk with this, of course, is that the European Parliament withholds consent, no extension to the negotiations is agreed in the European Council, and Scotland, with the rest of the UK, leaves the EU with nothing.

The above is of course speculative in nature and much negotiating lies ahead before we begin to build up a clearer picture of what any future UK-EU relationship will look like. Following last week’s standing ovation in the European Parliament for a MEP who is a member of the Scottish National Party, however, the European Parliament may yet prove to be a key player in how that future relationship takes shape.

Brexit : questions de frontières entre l’Union et le Royaume Uni

ORIGINAL PUBLISHED ON CDRE SITE 

Henri Labayle

Les commentaires du feuilleton politico médiatique accompagnant le feuilleton du Brexit ne sont pas à la hauteur de ses enjeux. Les mêmes qui stigmatisent les mensonges et approximations de la campagne référendaire britannique, trouvent logique de sacraliser le procédé référendaire qui l’a conclue, comme si cette technique était un modèle à révérer dans une démocratie accomplie. Elle appelle pourtant presque par nature de prendre de telles libertés avec la vérité.

Oublieux qu’ils sont des conditions dans lesquelles les « non » de 2005 s’étaient agrégés, ils persistent à penser que l’on peut répondre de façon binaire à des questions complexes et nourrissent l’illusion démocratique. L’inconséquence de Boris Johnson a-t-elle quoi que ce soit à envier aujourd’hui au « plan B » de Laurent Fabius et mêler les voix de Jean Luc Mélenchon et du Front national avait-il un sens à l’époque ?

C’est dire si les nouveaux chantres de la (dé)construction européenne ignorent l’essentiel. Parmi les questions brûlantes passées par pertes et profits dans le débat et que découvrent les citoyens britanniques, celle de la redéfinition des frontières extérieures du Royaume Uni n’est pas la moindre. Qu’il s’agisse du maintien de situations antérieures, à Gibraltar comme aux abords du tunnel sous la Manche, ou de l’appréhension nouvelle des relations avec la République d’Irlande, les défis sont sérieux. Ils ne sont pas de même nature.

1. La plaie ouverte de Calais

Vu du continent, le Brexit a immédiatement ravivé les polémiques liées à la situation anormale qui prévaut dans la région de Calais depuis plus de dix ans. Au prétexte aisément compréhensible que, le Royaume Uni quittant l’Union, plus rien ne justifierait que la France garantisse sur son territoire le contrôle de la frontière britannique.

La chose est un peu plus compliquée que cela.

En droit, d’abord, le problème est essentiellement placé sous un régime bilatéral et la situation actuelle résulte de la conjonction de différents facteurs réglés par des textes de nature et de portée différente. Le premier de ces facteurs est lié au fait que le tunnel sous la Manche et le trafic l’empruntant réclamaient des solutions particulières en matière de contrôle des flux de personnes, sans parler des contraintes liées au trafic maritime.

Dès 1986 et le Traité de Cantorbery , les autorités des deux Etats, dont François Mitterrand et Margaret Thatcher, avaient convenu de déroger aux procédés classiques de contrôle des frontières. Déconnectant la question de la délimitation de la frontière physique, située en mer sur la ligne de démarcation des deux plateaux continentaux, de celle des contrôles policiers et douaniers, opérés sur le territoire de chacun, respectivement à la gare du Nord et de Saint Pancrace, la coopération bilatérale des deux Etats allait rapidement prendre la forme d’un véritable chemin de croix.

Le 25 novembre 1991, afin de compléter le traité du 12 février 1986, les deux pays signaient le protocole relatif aux contrôles frontaliers et à la police, à la coopération judiciaire en matière pénale, à la sécurité civile et à l’assistance mutuelle, concernant la liaison fixe transmanche, dit « Protocole de Sangatte », texte renforcé par un protocole additionnel relatif à la création de bureaux chargés du contrôle des personnes empruntant la liaison ferroviaire reliant la France et le Royaume-Uni, signé le 22 mai 2000. Ces deux accords visaient à accentuer les moyens de lutte contre l’immigration clandestine, mis rapidement dans l’incapacité de répondre à la situation dramatique de Sangatte, dont la sinistre réputation était justifiée.

Attirés comme des papillons par la lumière pour les raisons que l’on sait par un système britannique vécu par eux comme un eldorado, des milliers de ressortissants de pays tiers, le plus souvent en situation irrégulière et parfois demandeurs de protection internationale aboutissaient en effet à l’impasse du Calaisis. Dans des conditions inhumaines autant qu’indignes, comme la CNCDH eut l’occasion récente de le stigmatiser vigoureusement dans un avis en 2015.

D’où la conclusion du traité du Touquet , en 2003, sous l’impulsion du ministre de l’Intérieur de l’époque Nicolas Sarkozy, permettant de fermer le camp de Sangatte et d’accentuer et de pérenniser la collaboration des autorités britanniques, moyennant compensations financières et humaines. Le tout conservant des conséquences toujours évidentes : enkyster la pression migratoire sur quelques kilomètres carrés situés en France en vue d’un hypothétique passage clandestin vers le Royaume Uni. D’où un renforcement, dans un nouvel arrangement en 2014, des moyens mis en œuvre sans que la pression migratoire se relâche, quoi qu’en prétende l’actuel ministre de l’Intérieur français.

Le plus baroque de cette situation est rarement dénoncé à son juste prix : l’impasse de Calais démontre qu’il est plus facile de pénétrer de façon irrégulière dans l’espace Schengen, ce qu’on fait les migrants présents à Grande-Synthe, que d’en sortir en direction d’un Etat non membre de cet espace, ce qu’est la Grande Bretagne …

Bien évidemment, le caractère strictement bilatéral de cette construction n’a échappé à personne et ce avec une force d’autant plus grande que l’hypothèse d’un départ de la Grande Bretagne se précisait. L’idée d’une dénonciation de ces accords s’est alors posée.

Elle est juridiquement possible, en vertu de l’article 25 §2 du traité franco-britannique qui dispose que « chaque partie peut y mettre un terme à tout moment en informant l’autre par la voie diplomatique, laquelle prendra effet deux ans après la dite notification ». Tout dépendrait alors d’un acte de volonté politique des autorités françaises.

Toujours en droit, la réponse à cette question est moins évidente qu’il n’y paraît. Certes, se dégageant de l’Union, le Royaume Uni a toutes chances de se dégager aussi de sa politique d’asile et notamment du règlement Dublin qui faisait obligation de reprendre les demandeurs d’asile aux Etats par lesquels ces demandeurs avaient transité. Contribuant à permettre aux britanniques de se défausser sur des tiers, malgré quelques gestes timides envers les mineurs isolés justement désignés par la CNCDH, cette situation était scandaleuse mais protectrice de la quiétude britannique.

Il reste que, du point de vue des frontières, la frontière franco-britannique était déjà et demeure une frontière extérieure à l’espace Schengen, dont le Royaume Uni n’a jamais fait partie. Son retrait ne change pas fondamentalement la donne concernant les obligations pesant sur les uns et les autres et d’autres obligations pèsent sur la France.

Ainsi, le Code frontières Schengen, auquel la France est soumise, souligne expressément et notamment dans son article 8 l’obligation de contrôle, même minimal, pesant sur les Etats membres lors du franchissement des frontières extérieures en vue de sortir de l’espace commun… Le tout pour des raisons d’ordre public aisément compréhensibles, indépendamment du traité du Touquet. Que n’a-t-on dit de la libre circulation des terroristes dans l’espace Schengen lors des attentats de Paris et Bruxelles à cet égard …

Au delà de cette situation juridique, dans les faits, il s’ajoute une série de considérations expliquant les prises de position publiques des autorités françaises hostiles à tout changement.

La première est incontestablement liée à la précarité de la situation migratoire en France. Si la lâcheté française sur le front de la crise des migrants de l’année 2015/2016 l’a relativement mise à l’abri de la tempête ayant frappé ses principaux voisins, ce qui est visible dès lors que l’on raisonne en volume et non en pourcentage d’immigrants parvenus en France, Paris entend persister dans ce créneau. Sa crainte est en effet de déclencher un véritable « appel d’air » en dénonçant les accords du Touquet. Cette dénonciation enverrait selon elle un message d’ouverture au monde d’extérieur, quitte à le surévaluer. La difficulté de franchir la Manche demeurant tout aussi grande en pratique avec ou sans coopération franco-britannique, ce message ne se traduirait d’ailleurs pas nécessairement par une amélioration des chances de franchir le Channel. La posture française étant celle de la dissuasion, tout élément allant à l’encontre de cette stratégie est donc proscrit.

La seconde raison est d’ordre sécuritaire. Elle est systématiquement mise en avant par le ministre de l’Intérieur pour balayer les discours qui estiment que les flux migratoires cesseront dès lors que les contrôles au profit du Royaume Uni disparaitront et que les britanniques doivent en quelque sorte « payer » leur sortie. Ce discours est tenu dans l’opposition mais aussi à ses cotés au gouvernement, à entendre le ministre de l’Economie. Incontestablement de ce point de vue, la prise en compte de la traite des êtres humains et des trafics en tous genres, les préoccupations liées au terrorisme comme la sécurisation des lieux et des équipements conduisent au statu quo.

Quitte à mettre en balance les avantages et les inconvénients d’un tel statu quo et d’une dénonciation, malgré le prix politique à en payer auprès de l’opinion publique, la première option paraît avoir été arbitrée si l’on en croit les déclarations concordantes du Président de la République, du ministre des affaires étrangères et du ministre de l’Intérieur. D’autant que la relation franco-britannique n’est pas faite que de cette question et qu’il n’est pas douteux que la partie française tire argument de cette situation désavantageuse pour obtenir compensation dans un autre secteur en discussion.

Enfin, un simple raisonnement de bon sens oblige à la prudence : comment imaginer concrètement un démantèlement des installations portuaires et ferroviaires garantissant actuellement la frontière, au contact de milliers de personnes, immédiatement rejointes par des flux équivalents et prétendant forcer le passage britannique ? Comment envisager sereinement l’hypothèse d’éventuels passages maritimes clandestins à l’image de ceux de la Méditerranée dans l’une des voies maritimes les plus fréquentées de la planète, au seul prétexte de « faire payer » un partenaire défaillant. Les migrants mal traités par la République et refusés par le Royaume Uni ont donc toutes chances de ne trouver durablement que l’appui compatissant des ONG pour toute réponse à leur calvaire.

2. L’imbroglio de l’Irlande du Nord

Vue des îles britanniques, la question la plus sensible est vraisemblablement la question irlandaise. Toute insulaire qu’elle soit, la position des îles britanniques pose désormais problème : deux Etats y disposeront d’un statut différent au regard de l’Union européenne.

Jusqu’à présent en effet, la force des liens qui unissait le Royaume Uni et la République d’Irlande expliquait que, malgré certaines velléités irlandaises contraires, ces deux Etats membres aient adopté une même attitude de refus à l’encontre de l’espace de libre circulation Schengen. D’où une relation transfrontalière très particulière entre ces deux Etats, à la fois de manière générale mais aussi des deux cotés des 500 kilomètres de frontières les unissant et destinées demain, selon toute vraisemblance, à les séparer.

En d’autres termes, la frontière irlandaise deviendrait la seule frontière terrestre extérieure de l’Union avec le Royaume Uni, en réservant la question de Gibraltar, et ceci dans un contexte où, jamais, il n’a existé de contrôle de l’immigration à cet endroit.

Cette relation est faite de deux textes majeurs, l’accord de paix pour l’Irlande du Nord, dit « accord du Vendredi Saint » signé le 10 avril 1998 et, surtout, la Zone de Voyage Commune (Common Travel Area) instituée depuis les années 20 et dont le Protocole sur l’application de certains aspects de l’article 7 A du traité instituant la Communauté européenne au Royaume-Uni et à l’Irlande a officialisé l’importance à Amsterdam, réitérée à Lisbonne.

Son existence signifie que les citoyens britanniques et irlandais circulant entre les deux Etats ne sont pas soumis à des contrôles de passeport, peuvent en être dépourvus mais aussi que les deux Etats ont développé une coopération bilatérale sur les questions relatives à l’immigration et au contrôle des frontières (Amendment Order de 1975).

Faisant contre mauvaise fortune bon cœur, la République d’Irlande s’était donc alignée sur le refus sans concession du Royaume Uni d’adhérer à l’espace Schengen, considérant que les inconvénients d’un renoncement à la CTA l’emportaient. Néanmoins, dans sa déclaration n° 56 jointe au traité sur l’Union, l’Irlande se déclarait « attachée à l’Union en tant qu’espace de liberté, de sécurité et de justice dans le respect des droits fondamentaux et des différents systèmes et traditions juridiques des États membres à l’intérieur duquel les citoyens jouissent d’un niveau élevé de sécurité » et rappelait « que, conformément à l’article 8 du protocole, elle peut notifier par écrit au Conseil son souhait de ne plus relever des dispositions du protocole ».

Que la frontière séparant l’Irlande du Nord et la République d’Irlande ne soit plus une frontière intérieure aux îles britanniques mais devienne une frontière extérieure de l’Union pose évidemment une question majeure. Pour les 20 à 30 000 personnes qui les franchissent quotidiennement bien sûr mais aussi pour l’Union et les deux Etats concernés.

L’Irlande du Nord ne s’y est pas trompée, qui a voté majoritairement pour demeurer dans l’Union, l’impact économique et politique d’un départ lui apparaissant immédiatement. Que le restant du Royaume Uni ait décidé autrement, les sirènes du départ présentant l’exemple norvégien comme un modèle à atteindre, met chacun désormais au pied du mur.

On pourrait en effet concevoir que, dans l’idéal, une zone de libre circulation aussi grande que possible puisse être maintenue entre les deux parties, comme l’ont prétendu certaines autorités nord irlandaises, mais ce souhait se heurte à un obstacle majeur. La libre circulation des personnes faisant partie intégrante des exigences communautaires remises en cause par le « non » britannique, lequel faisait masse de l’immigration intra et extra-communautaire, il est difficile d’imaginer de céder sur cette question de principe. Y compris pour la partie britannique qui a fait du contrôle de sa frontière extérieure un argument de campagne et qui ne saurait oublier, à l’image de Boris Johnson et Nigel Farage, que la Norvège fait partie intégrante, elle, de l’espace Schengen …

Cette impasse ouvre donc un double risque politique, que l’Union devra assumer car il ne s’agira plus là d’un dossier irlandais mené par des négociateurs irlandais mais d’un dossier européen conduit à ce titre, dans la transparence qui convient. Risque intérieur à l’Irlande du Nord d’abord, tant on sait que la pacification opérée dans les deux dernières décennies doit beaucoup justement à ce régime de libre circulation et tant on peut craindre que le retour de la frontière ravive les tensions sur le plan de la paix civile.

Risque interne au Royaume Uni ensuite tant l’Irlande du Nord commence à mesurer les conséquences concrètes d’un départ de l’Union pour son économie, son agriculture autant que pour sa relation avec le voisin du Sud.

3. La menace de Gibraltar

Vue d’un autre Etat membre, le Royaume d’Espagne, le Brexit relance une autre polémique, celle relative au statut de Gibraltar. Peuplés de 33 000 habitants et d’un nombre non négligeable de singes, ses 6 kilomètres carrés sont placés sous souveraineté britannique depuis 1713 et le traité d’Utrecht.

De la gestion d’une partie de sa piste d’aéroport aux incursions des pêcheurs en passant par l’organisation des élections aux Parlement européen vérifiée par le juge européen, tout est régulièrement prétexte et objet de tensions entre les deux Etats membres, allant parfois jusqu’au blocage de la frontière et de l’accès au territoire. Le Brexit devenu réalité, force est donc pour les protagonistes d’imaginer une solution.

Le point de vue espagnol n’est évidemment, pas de dentelle. Son ministre des Affaires étrangères l’a immédiatement signifié : « il faudra désormais trouver quel type de relation Gibraltar veut avoir ». Sa vision est simple et sa conclusion limpide : « notre formule est celle d’une co-souveraineté britannico-espagnole pendant une période limitée, qui débouche sur la restitution de Gibraltar » à l’Espagne et « la perspective de voir le drapeau espagnol flotter sur Gibraltar se rapproche ».

Les autorités du Rocher, quoique farouchement favorables au statu quo depuis le référendum plébiscitaire de 2002, se résignent donc à explorer des voies leur permettant de conserver leur accès au marché commun européen et leur statut de paradis fiscal, quitte à s’aligner sur la position diplomatique de l’Ecosse. Si le spectre des Malouines s’éloigne après le Brexit, faudra-t-il alors revisiter celui du statut de Hong Kong

Leaving the EU: UK Parliament’s Role in the Process

Published Thursday, June 30, 2016

Following the result of the referendum held on 23 June 2016, this House of Lords Library briefing examines what Parliament’s role would be in the process of withdrawing from the European Union in several key areas: invoking Article 50; overseeing the negotiation process; ratifying agreements; repealing and reviewing domestic legislation.

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Following a vote in the referendum on 23 June 2016 in favour of the UK leaving the European Union, the Prime Minister said that this decision “must be accepted”, adding that “Parliament will clearly have a role in making sure that we find the best way forward”. Drawing on parliamentary material and recent legal and constitutional comment, this Library briefing examines what Parliament’s role would be in the process of withdrawing from the European Union in several key areas:

Invoking Article 50—The Prime Minister has said it would be for his successor and his or her Cabinet to decide whether the House of Commons should have a vote on the decision to trigger Article 50, the formal process set out in the Treaty on European Union for member states to follow should they decide to leave the EU. Some legal commentators agree that prerogative powers would enable a Prime Minister to take this decision; some have suggested that Parliament could have a role, and others have gone further, arguing that prior parliamentary approval would be required before Article 50 could be invoked.

Overseeing the Negotiation Process—Formal negotiations between the UK and the European Union would not begin until the UK made a notification under Article 50 of its decision to withdraw from the EU. Parliament’s involvement in overseeing or scrutinising such negotiations has not yet been set out in great detail. The chair of the House of Lords European Union Committee has called for Parliament to be “fully involved” in the process.

Ratifying Agreements—Parliament would have a statutory role in ratifying an eventual withdrawal agreement and any other international agreements arising from the negotiations if they were subject to the usual procedure for ratifying treaties. The House of Commons potentially has the power to block the ratification of a treaty indefinitely; the House of Lords does not. Under the terms of Article 50, the UK’s membership would cease two years after it gave formal notification of its intention to leave, if no withdrawal agreement had come into force by that point, although the two-year period could be extended on the unanimous agreement of all EU member states.

Repealing and Reviewing Domestic Legislation—As part of the process of leaving the EU, decisions would need to be made about how to deal with existing domestic legislation passed to enable EU law to have effect in the UK, a process which the House of Lords European Union Committee has described as “domestic disentanglement from EU law”. Parliament would have an important role to play in reviewing, repealing, amending and replacing legislation, a process which is predicted by many to be complex and time-consuming. Once the UK had formally triggered Article 50, its timescales would apply independently of Parliament approving domestic legislative changes associated with leaving the EU.

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What next after the UK vote to leave the EU?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Professor Steve Peers

Many of the consequences of the UK’s vote to leave the EU will not be clear for some time. However, here’s my initial take on some of the key issues, in their broader political context.

1 Is the referendum vote binding?

Legally, no. But it is politically unthinkable that it will be ignored, in particular by MPs whose constituency voted to leave.

2 Could the UK simply renegotiate its EU membership again, and then hold a referendum on those results, rather than actually Leave the EU?

This is technically possible, and some on the Leave side hinted at this as a possibility. However, a lot of Leave voters might resent this idea, as they probably thought that they were actually voting to leave the EU – although they would of course have the chance to confirm that position in the second referendum. This option would also require the remaining EU to be willing to offer such a re-renegotiation, and it might also be difficult to put into effect, since it would probably need a Treaty amendment (limiting the free movement of people, for instance) ratified by all Member States.

3 What is the process to leave the EU?

The official process is set out in Article 50 of the Treaty of European Union. I’ve blogged about that in detail here, and there’s a shorter version of my analysis here. It would also be possible to leave the EU by amending the Treaties, although it is hard to see why that would be an attractive option to the UK, since it would require long ratification periods and unanimous voting on the EU side.

Some on the Leave side have hinted that they think there is some alternative mystery process to leave, although they have not defined why they think this or what that would entail. The likelihood is therefore that Article 50 will be used. Any alternative approach would likely face a successful legal challenge.

4 What does Article 50 say?

The UK notifies a withdrawal decision to the EU. That triggers a two-year period at the end of which the UK is no longer an EU member. That time can be shorter (if an EU/UK withdrawal treaty provides for this). It could also be longer if all Member States and the UK agree.

It is up to the UK when exactly to notify the withdrawal decision. It could delay making the notification, although a very long delay could possibly increase economic uncertainty and fuel distrust by Leave voters.

The negotiation concerns a withdrawal agreement. It is not clear if this is a technical agreement limited to the fiddly details of the UK leaving, or whether it would also govern the EU-UK future relationship. The point is relevant since otherwise the EU-UK relationship would have to be negotiated separately, and different rules would apply. While the withdrawal agreement is subject to majority voting among the remaining EU Member States, it is more likely that a separate deal would be subject to unanimous voting and national ratification.

It is also not clear if a notification to leave the EU can be withdrawn after it is made. That would be relevant if the plan were to negotiate the future UK/EU relationship, then ask the public in another referendum whether they wanted to leave on those terms or not.

5 Can the UK amend laws relating to EU membership already? Continue reading “What next after the UK vote to leave the EU?”

EU Referendum Briefing 6: A Bonfire of Rights? EU Employment and Equality Law after Brexit

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by  Steve Peers

It’s been suggested that there would be a ‘bonfire of rights’ if the UK left the EU – in particular rights relating to employment and equality. As a response, some have suggested that the EU has nothing to do with employment and equality law in the UK – that all such rights are actually home-grown.

As I will demonstrate in detail in this blog post, it is undeniably the case that EU law has significantly raised the level of employment and equality rights in the UK – particularly as regards equality for women in the workplace.

My study of all the cases reaching the EU court concerning UK law on these issues shows that 60% of all the EU court cases about equal treatment of women in Britain resulted in a finding that UK law breached EU law – therefore raising the standards of protection for women in the workplace. 62% of the other cases on workers’ rights led to the same result.

As for what would happen in the event of Brexit, we cannot be absolutely certain – but a large number of the most prominent supporters of Brexit have admitted in detail their intention to lower those standards.

I’ll first summarise the main points, and then set out the facts in detail.

Summary

The EU has not set uniform standards on every aspect of employment and workplace equality law – and it never will.  Its role, according to the Treaties, is to set minimum standards in certain areas of employment and equality law. So where the EU hasn’t acted at all – such as on zero hours contracts, trade union laws or minimum wages – Member States can do as they like. The blame (or credit) for the choices which the UK makes on those issues must go entirely to this country’s government.

On the other hand, where the EU has acted – such as on holiday pay and equality in the workplace – Member States can set higher standards, but not lower ones. The EU rules in effect set a floor below which Member States can’t go; but there is no corresponding ceiling.

It’s been argued during the referendum that because the UK has sometimes adopted laws on certain employment or equality issues before the EU did, the EU therefore added nothing. This argument profoundly misunderstands the law in this area. Just because the UK put the Equal Pay Act on the statute books before it was covered by EU laws on equal pay for men and women doesn’t mean that those EU laws had no added value. That’s because British laws in this area have often contained many exclusions or exceptions, and EU law has often removed them.

In this blog post, I prove that point by looking at every single ruling of the EU court concerning UK law on employment or equality issues. As I noted in the introduction in 60% of cases, regarding women’s equality at work, and 62% of other workers’ rights cases, UK law fell below EU standards.

In practical terms, this increased protection regarding (among other things): equal pay for work of equal value for women; protection at work during pregnancy and maternity leave; better protection of pensions when an employer goes broke; and extension of paid holidays to include more workers.

However, a significant number of the relevant laws have been targeted for removal by serious supporters of Brexit.

In conclusion, European Union law has significantly increased the level of protection in a number of areas of employment and equality law. Leaving the EU would not automatically mean that those protections are lost, but they would no longer be guaranteed – and many of the most senior figures supporting Brexit have expressed their intention to remove some of them.

Detailed analysis

The following analysis looks at (a) the main features of EU involvement in employment and equality law; and (b) the prospect of the rules stemming from EU law being repealed after Brexit.

Mainly the EU’s impact in this area has been in the form of laws that set minimum standards on some workers’ rights issues, and on discrimination against workers on some grounds. EU law also bans discrimination outside the workplace on grounds of sex or race. In a lot of these areas, the UK had its own laws beforehand. For instance, the Race Relations Act dates back to 1965. However, there have been some areas where UK law changed because of a new EU law which the UK implemented, or because of a ruling of the EU courts, or the UK courts interpreting EU law. A complete list and summary of all the relevant EU court cases is set out in the Annex. Some of the key cases are discussed further in the main part.

While some argue that the rights concerned anyway derive from Conventions (international treaties) agreed within the framework of the International Labour Organisation (ILO), ILO treaties are not enforceable in British law. The very fact that the EU court has ruled on UK breaches of EU employment and equality law proves that the existence of ILO treaties does not by itself guarantee employment or equality law protection in individual cases.

Employment law

The EU does not deal with every employment law issue. In fact, it can’t. The EU treaties rule out any EU laws on pay or trade union rights. So there are no EU laws on those issues, although in some cases the EU has an indirect impact on these topics.  There are also some areas where the EU could act if all Member States agreed, such as rights on the termination of employment. But it is hard to reach unanimous agreement on employment law issues, and so there are few laws in these areas either.

What topics does EU law address? First and foremost, there are a number of EU laws on health and safety. The most prominent of these is the law on working time, which guarantees a minimum amount of four weeks’ paid holiday. Although the UK had a law in force on this issue before the EU law, it did not guarantee paid holidays for all workers. The EU court case law has specified in particular that the UK has to ensure paid holidays for fixed-term workers (BECTU), and to include allowances (Williams) and commissions (Lock) in holiday pay.

Next, there are EU laws on major changes to workers’ employment contracts. In particular, there are EU laws on three issues: rights in the case of mass redundancies; rights when an employment contract is affected by the transfer of the employer; and rights when a business goes broke.

The mass redundancies law doesn’t ban or limit the grounds for redundancies, or provide for rules on redundancy payments – so the UK and other EU countries can regulate those issues however they want to. First and foremost, this law it sets out a waiting period before large numbers of redundancies can be made, once the employer has decided in principle to make a lot of its workers redundant. The employer must give a detailed explanation of its plans to the workers who are set to lose their jobs. During the waiting period, the workers’ representatives and the employer must hold discussions with a view to helping as many affected workers as possible, for instance by saving jobs or retraining. If the employer fails to do this then there must be some form of sanction.

The EU court has ruled that the UK had not applied this law properly when it said that employers only had to consult the workforce when there was a trade union recognised by the employer. This was a breach of the EU law because that law required workers to be consulted about mass redundancies whether there was a trade union representing the workforce or not, and whether the trade union was recognised by the employer or not. Also the UK had not provided enough of a sanction for employers who breached the law. While employers were in principle subject to a fine for breaking the law, they could deduct it from the redundancy payments which they had to pay to workers anyway.

If a business goes broke, EU legislation provides that a minimum amount of workers’ back pay which may be owing at the time of insolvency has to be guaranteed. This law also requires a basic protection of occupational pensions where businesses go broke. The key EU court case of Robins said that the UK was not doing enough to protect pensions in such cases. British law was changed as a result.

Another issue addressed by EU law is so-called ‘atypical work’. This refers to work which is different from the traditional full-time open-ended contract with one employer. In particular, there are different EU laws for three types of atypical work: part-time work, fixed-term work and agency workers. There are no EU laws on ‘zero-hour’ contracts or internships, however.

Basically these EU laws say that the atypical workers who are covered by them should be treated equally with regular employees as regards their pay and conditions. Also, employers should make it easier for part-time workers or agency workers to join the regular workforce, and for full-time workers to switch to part-time work if they wish.  For fixed-term workers, there must be limits on the number of times a contract can be renewed over and over, to protect against exploitation.

Finally, another issue addressed by EU laws is worker consultation and information. There is both a general law on worker consultation and information in large companies, and a specific set of rules of ‘European works councils’, which applies to multinational companies with over 1000 employees across the EU. These laws allow the employers and the workforce to reach alternative arrangements if they wish. There are no EU rules requiring small businesses to inform and consult their workers, except in the special case where the employee contracts are transferred.

Discrimination law

There are EU laws banning discrimination on six grounds: sex, race, age, disability, religion and sexual orientation. The laws on sex and race discrimination go beyond employment, and also ban sex or race discrimination in access to goods or services, like insurance. However, the laws on the other four grounds only extend to discrimination in employment.

These laws ban direct discrimination, ie discrimination purely based on someone’s age, race, sex, etc. However, they also ban indirect discrimination: unequal treatment for another reason, but which mostly affects people of a particular age, sex, etc. For instance, unequal treatment of part-time workers will affect both male and female workers, since there are some men working part-time. But it mostly affects women, since they make up the majority of part-time workers. So it would be an example of indirect sex discrimination, although since the adoption of an EU law devoted to the issue of part-time workers (see above in this chapter), the sex discrimination angle is no longer as relevant.

How do these laws affect the UK? As noted above, the UK usually had laws on these issues before the EU did. However, the EU laws have had an impact on some of the details that are important to large numbers of individual cases.

Looking at the case law of the EU court, there have been important rulings which improved UK standards in particular on:

  • equal pay for work of equal value;
  • prohibiting the dismissal of women earlier than men due to retirement age difference;
  • effective remedies (removing the cap on damages for sex discrimination);
  • dismissal due to pregnancy;
  • equal treatment after returning from maternity leave; and
  • dismissal of transsexuals.

Effect of Brexit

Leaving the EU has no automatic effect on employment law. But a number of Brexit supporters, including cabinet ministers like the employment minister, havespecifically stated that they want to use the opportunity that Brexit would create in order to remove protections guaranteed by EU law.

In particular, in their own words, they aspire to scrap the laws on:  collective redundancies; atypical workers; working time (including paid holidays); driving time limits for the self-employed; rights for pregnant workers and women on maternity leave;  and worker consultation rights.

For his part, Nigel Farage has argued that women who have children are ‘worth less’ to an employer.

It should be noted that changes like these would not even have to go through as an Act of Parliament – Vote Leave supporters plan to fast-track the abolition of EU laws after Brexit.

Conclusion

As we have seen, EU law has had a demonstrable impact on UK employment and discrimination law. It is not the source of all UK law but it definitely provides protection which would not otherwise exist in certain areas, such as holiday pay and equality for women in the workplace. It is highly likely, based on the expressed intentions of senior supporters of Brexit, that there would be a ‘bonfire’ of some of these rights after Brexit.

Further reading:

Analyses of EU effect on UK employment law by:

 

Annex

EU court cases: UK employment and equality law

The following is a list of all EU court cases involving UK employment and equality law. I have grouped them by topic and indicated for each case what the subject matter was, and whether the UK law was in breach of EU law or not in each case.

Equality at work – 32 breach, 23 no breach: breach of EU law in 55% of cases
(Sex equality: 32 breach, 21 no breach: breach in 60% of cases)
Burton – no breach – sex discrimination – voluntary redundancy
Garland – breach – art 119 – after-work benefit
Jenkins – breach – art 119 – part-time work
Worringham – breach – art 119 – pension contributions
McCarthys – breach – art 119 – previous employee
Commission v UK – C-165/82 breach – sex discrimination – private household, small business
Commission v UK – C-61/81 breach – art 119 – job classification
Johnston – breach – sex discrimination – women on police force
Marshall – breach – sex discrimination – dismissal at retirement age
Roberts – no breach – pension age sex discrimination
Newstead – no breach – pension contributions
Drake – breach – social security directive
Clark – breach – social security directive
Barber – breach – art 119 and occupational pensions
Foster – breach – sex discrimination – dismissal at retirement age
Johnson – no breach – social security directive
Jackson and Cresswell – no breach – income support and sex discrimination
Ex parte EOC – no breach – social security contributions
Smithson – no breach – social security and housing benefit
Neath – no breach – actuarial benefits and occupational pensions
Thomas – breach – social security and invalidity pension
Marshall II – breach – limits on compensation for sex discrimination
Coloroll – breach – occupational pensions
Enderby – breach – Art 119
Birds Eye – no breach – occupational pensions
Bramhill – no breach – social security
Johnson – no breach – social security
Smith v Avdel – breach – occupational pensions
Webb – pregnancy dismissal – breach
Gillespie – art 119 and maternity leave – no breach
Graham – social security – no breach
P v Cornwall CC – transsexual dismissal – breach
Richardson – social security – breach – prescription charges
Atkins – social security – bus concessions – no breach
Meyers – sex discrimination and family credit – breach
Sutton – social security and interest – no breach
Magorrian – art 119 – breach – time limits
Levez – sex discrimination – breach – remedies
Grant – sex discrimination – no breach re sexual orientation
Boyle – pregnancy – breach in part
Brown v Rentokil – pregnancy dismissal – breach
Sirdar – women in military – sex discrimination – no breach
Coote – sex discrimination – breach – remedies
Seymour-Smith – sex discrimination – no breach
Preston – sex discrimination – breach
Hepple – social security – no breach
Taylor – social security – breach – winter fuel
KB – transexuals and pensions – breach
Allonby – equal pay – (mostly) no breach
Alabaster – maternity leave and pay rise – breach
Cadman – art 119 – no breach
Richards – transsexual and pension – breach
Coleman – disability discrimination – breach
Age Concern – age discrimination – no breach
CD – surrogate mothers and maternity leave – no breach
 

Employment law: 13 higher standards, 7 no breach, 1 lower standard: 62% higher standard
Comm v UK – breach – collective redundancies
Comm v UK – breach – TUPE
Everson – insolvency – breach
Allen – TUPE – breach
BECTU – working time and fixed-term work – breach
Bowden – working time and transport work – no breach
Martin – TUPE and early pensions – breach
Celtec – TUPE and transfer date – breach
Robinson-Steele – working time and ‘rolled-up’ holiday pay – breach
Comm v UK – working time – breach
Comm v UK – health and safety – employer liability – no breach
Robins – insolvency and pensions – breach
Stringer – working time and sick leave – partial breach
Williams – working time and allowances  – breach
Nolan – collective redundancies and US airbase – no breach
Alemo-Herron – TUPE – breach (but case in favour of employer)
Lock – working time and commissions – breach
Lyttle – collective redundancies – no breach
USDAW and Wilson – collective redundancies and Woolworths – no breach
O’Brien – part-time work – breach
Greenfield – part-time work – no breach
Viking Line – trade unions and freedom of establishment – not included in stats; case left to national court to decide, then settled

Openness, Transparency and the Right of Access to Documents in the EU

THIS IS AN  “In-depth analysis” FOR THE PETITIONS COMMITTEE OF THE EUROPEAN PARLIAMENT. FULL TEXT ACCESSIBLE HERE 

AUTHORS : Deirdre CURTIN, Päivi LEINO-SANDBERG.

Abstract . Upon request of the PETI Committee, the Policy Department on Citizens’ Rights and Constitutional Affairs commissioned the present analysis, which examines the situation in relation to openness, transparency, access to documents and information in the EU. Case law and developments in the jurisprudence of the CJEU are examined, notably for legislative documents, documents relating to administrative proceedings, to Court proceedings, infringement proceedings and EU Pilot cases, protection of privacy and international relations. Current and future challenges, as well as conclusions and policy recommendations are set out, in order to ensure compliance with the Treaties’ and Charter of Fundamental Rights’ requirements aimed at enhancing citizens’ participation in the EU decision-making process, and consequently stronger accountability and democracy in the EU.

  1. OPENNESS, TRANSPARENCY AND THE RIGHT TO ACCESS DOCUMENTS IN THE EU

The Treaty of Lisbon, in force since December 2009, includes a number of reforms emphasising open-decision making, citizen participation and the role of transparency and good administration in building up the democratic credentials of the European Union (EU).

As regards democratic decision-making and transparency in particular, a specific Title in the Treaty on the European Union (TEU) now includes a number of core provisions on democratic principles, applicable in all areas of Union action.

They underline the principle of representative democracy through the European Parliament, representing the citizens directly at Union level, and through the governments forming the European Council and the Council and that are democratically accountable either to their national parliaments, or to their citizens.1

Even participatory democracy enjoys a pivotal role in the new Treaty framework; in order to guarantee the right of ’every citizen’ to ’participate in the democratic life of the Union’, the Treaty establishes that ’[d]ecisions shall be taken as openly and as closely as possible to the citizen’ and that both citizens and representatives should be given opportunities to ’make known and publicly exchange their views in all areas of Union action’.2

These provisions have a linkage both with the new citizens’ initiative3 and with Article 15 TFEU, which places the legislature under an obligation to act publicly, and establishes that citizens have the right to access documents held by all Union institutions, bodies and agencies.

The right of access to documents, and its nature as a fundamental right, is further emphasised by Article 42 of the EU Charter of Fundamental Rights, which now enjoys ‘the same legal value as the Treaties’.4

In practice, open decision-making is to a large extent realised through the right of the general public to access documents. Regulation No 1049/2001 on public access to documents held by the EU institutions (Access Regulation),5 builds on the principle of ‘widest possible access’, and has together with case law been instrumental in operationalising the right of citizen access by establishing procedures and standards for the exercise of their democratic rights.

All documents held by the European Parliament, Council and Commission are public, as the main principle, but certain public and private interests are protected through specific exceptions under Article 4. But as exceptions derogate from the principle of the widest possible public access to documents, they must, according to established case-law, be interpreted and applied narrowly.6

Article 15(3) TFEU extends the public right of access to documents of all the Union institutions, bodies, offices and agencies. The Court of Justice, the European Central Bank and the European Investment Bank are subject to this provision only when exercising their administrative tasks.

The original 2001 Regulation only directly applies to the European Parliament, the Council, and the Commission. However, its application has been extended to the agencies by virtue of a specific provision in their respective founding acts. Furthermore, a number of institutions and bodies have adopted voluntary acts laying down rules on access to their documents which are identical or similar to Regulation No 1049/2001.

It has been 15 years since the adoption of Regulation No 1049/2001. In the same time frame the Commission and the Council set about adopting internal rules based on their rules of procedure on security and other classifications for documents. Such rules continue to exist in amended form today and exist alongside the legislative rules on access to documents.

Discussions on the reform of Regulation No 1049/2001 have been pending since 2008.7

While one would think that the tendency was – in line with the recent Treaty reforms – to strengthen the rights of citizens further, in fact the opposite seems to be the case, with discussions on reform mainly circulating around new ways to limit citizen access,8 many of them in rather fundamental ways that seem to be at odds with the letter of the Treaties.

These discussions bear witness to what seems to be a change of paradigm and priorities.

The tendency since the Treaty of Maastricht has been to strengthen the rights of citizens,9 now this objective seems lees squarely at the forefront of either the policy agenda or actual institutional practice. Staffan Dahllöf, a journalist specialising in freedom of information, describes the situation as follows: The voices asking for openness and citizen’s involvement are today weaker and fewer than they were when the present rules were decided in 2001 – at least amongst the Member State governments, and definitely in the Commission. It’s more like the Empire strikes back.10

Since there is a complete impasse in the legislative procedure (already for a very long time) on amending the 2001 Regulation, the role of the CJEU is very much centre-stage with litigants attempting to challenge a range of embedded secretive practices across a range of institutions and tasks.11

From a democratic point of view this can be considered problematic as it shifts responsibility from the EU legislator to the courts who cannot re-design the system in the required manner but deal with issues on a case by case basis, as and when they are brought before it. The same applies to the European Ombudsman, although her work is increasingly significant in bringing specific secretive practices to light and tackling them both on a case by case basis and more structurally through a growing number of own initiative enquiries.

Keeping in mind Dahllöf’s accurate observation quoted above, opening negotiations on the reform of Regulation No 1049/2001 naturally brings with it a risk of discussions leading to a further tightening of the EU transparency regime. The current Commission is not necessarily positively disposed to increasing transparency (as evidenced in legal observations before the CJEU in particular), and it has the backup of the majority of Member States in the Council.

Despite this, we think that there should be an open discussion about the possibilities of increasing openness. If this proves to be impossible, the Parliament can always block any reform that could result in negative outcomes or a levelling down.

In this note we discuss recent developments in jurisprudence and the challenges that currently exist in the application of the Regulation No 1049/2001 with a focus on public access by citizens. We conclude with a number of policy recommendations for consideration.

CONTINUE READING...

NOTES (to the section above)

1 Article 10(1) and (2) TEU.
2 Article 10(3) TEU, Article 11 TEU.
3 See Regulation No 211/2011 on the citizens’ initiative, OJ L [2011] 65/1.
4 Article 6(1) TEU.
5 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145/43.
6 See e.g. C-280/11 P Council v Access Info Europe para 30 and the case law quoted in the paragraph.
7. See e.g. Ian Harden, ‘The Revision of Regulation 1049/2001 on Public Access to Documents’, 15(2) European Public Law (2009) 239-256.
8 See the open letter by Beatrice Ask, Minister for Justice, Sweden and Anna-Maja Henriksson, Minister of Justice, Finland, published at http://www.wobbing.eu/sites/default/files/Open%20letter.pdf.
9 For one account of the EU’s transparency development so far, see Deirdre Curtin, ’Judging EU Secrecy’, Cahiers de Droit Européen, 2012 (2) 459 – 490.
10 Staffan Dahllöf, ‘Guide to the battle of transparency – UPDATED’, 09/06/2012, available at the EU wobbing website http://www.wobbing.eu/news/guide-battle-transparency-%E2%80%93-updated. On the varying positions of the Member States to the reform process, see M.Z. Hillebrandt, D.M. Curtin and A.J. Meijer, ‘Transparency in the EU Council of Ministers: An Institutional Analysis’, 20(1) European Law Journal, 2014, 1-20.
11 For a discussion, see Päivi Leino, “Transparency, Participation and EU Institutional Practice: An Inquiry into the Limits of the ‘Widest Possible’”, EUI Working Paper (LAW 3/2014).

EU Referendum Briefing 4: Immigration

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Steve Peers

Introduction

What impact does the UK’s membership of the European Union (EU) have on immigration and asylum? This post examines that controversial issue, looking in turn at migration to the UK by non-EU and EU citizens.

Non-EU migration

It’s central to distinguish between non-EU and EU migration in the referendum debate for two reasons. First of all, because while EU migration is obviously closely connected to the UK’s membership of the EU, non-EU migration is not. That’s simply because the UK has negotiated and used opt outs from EU laws on non-EU migration and asylum, particularly from the EU’s borderless Schengen zone. This means that the UK can control its borders with the rest of the EU as regards non-EU citizens, applying its own law to admit them or to refuse them entry. So it’s false to say that the UK has ‘lost control of its borders’ as far as non-EU migration is concerned.

As I noted in the first EU Referendum Briefing, these opt-outs could only be removed by a Treaty amendment which the UK government and parliament agreed to. Moreover, the Schengen opt-out can only be removed by a public referendum.

Secondly, the distinction is important because non-EU migration actually accounts for agreater share of net migration to the UK than EU migration does, as demonstrated here:

Moreover, for those who would like to see net migration to the UK reduced to the level of (say) 50,000 or below 100,000, it is self-evident from this graph that leaving the EU will not, by itself, accomplish this. Even with no EU migration, non-EU migration alone would still be well above the 100,000 level, as we can clearly see. Conversely, some would like to see more non-EU migrants admitted to the UK. Fine: the UK can admit them any time it likes. It’s entirely the government’s decision not to. But doing so would clearly move the UK further away from a target of 100,000 migrants, even if the UK leaves the EU.

A small minority of non-EU citizens in the UK are covered by EU law. First of all, non-EU family members of EU citizens are covered by EU free movement law. However, the UK’s renegotiation deal (as discussed here) would allow it to restrict their numbers considerably, by tightening the rules on their entry.

Secondly, the UK opted into the ‘first phase’ of EU asylum law, in 2003-05. At that time, though, it had a veto over asylum law proposals, and used it to insist that the EU rules would not change UK law. Although the ‘Leave’ side claims that the EU court ‘controls Britain’s asylum system’, in fact the only British asylum cases which the EU court has decided concern the ‘Dublin’ system of allocating responsibility for asylum applications between EU countries.

This system allows the UK to insist that other Member States take back asylum-seekers who have entered their territory before they got to the UK. If the UK left the EU, it would no longer be subject to these Dublin rules, unless the EU agreed to sign a treaty with the UK to that effect. This is pretty unlikely, since the EU has only signed such treaties with countries like Norway and Switzerland, for the sole reason that those countries also signed up to be part of the Schengen area at the same time.

Let’s think about what all this means in practice. Some non-EU migrants who have travelled through the rest of the EU do attempt illegal entry into the UK, or would probably like to do so (those in Calais and Dunkirk, for instance). But why would that change if the UK left the EU? The people concerned wouldn’t suddenly lose all desire to come to the UK. Their intended illegal entry would not become harder in any way. It would be against the law – but it already is now. Brexit would not actually move the UK further away from the continent geographically. People do attempt illegal entry into non-EU countries, like the USA; and refugees flee to and stay in non-EU countries (like Turkey, Kenya or Lebanon) too.

Some on the Leave side have suggested that the UK is vulnerable to sexual assault from non-EU migrants on the continent. Let’s unpack that. None of the non-EU migrants concerned have the right of entry into the UK. The UK can simply refuse them entry at the border. In contrast, the Orlando killer was a US citizen, who could have come to the UK without a visa, on the basis of the UK’s visa waiver for US citizens.

It’s sometimes suggested that non-EU migrants in the rest of the EU will all gain EU citizenship and come to the UK shortly afterward. But as shown in three separate analyses – by Full Fact, BBC Reality Check, and Open Europe – gaining EU citizenship is very difficult for non-EU citizens. It requires a long wait, a clean criminal record and satisfaction of many other criteria. If non-EU citizens don’t have legal residence status, or their asylum application fails, they can be deported. Nearly 200,000 non-EU citizens are in fact expelledfrom the EU every year.

Finally, let’s apply this analysis to this poster produced by some on the Leave side, unveiled last week:

No one on the poster has any right to enter the UK. All of them can be refused at the border. Brexit would change nothing in this regard – besides making it harder to remove to the EU those who do manage to enter illegally and apply for asylum. The prospect that many of them would gain EU citizenship and move to the UK is remote.

So the poster is essentially unrelated to the referendum. As such, it is not an attempt at rational argument – but rather an appeal to irrational fear.

EU migration

In contrast, as noted already, the migration of EU citizens is indeed relevant to the referendum debate. Much of this debate is about the economic impact of EU migration, including its impact on public services. I’ll leave that side of the debate to the economists. But there are some important legal issues that should be clarified, related to access to benefits and exclusion on grounds of criminality. The key point is that the free movement of EU citizens, while generous compared to ordinary immigration laws, is not unlimited.

What are these limits? First of all, EU citizens have to meet the criteria to stay. The main legislation on the free movement of EU citizens – known as the ‘Citizens’ Directive’ – provides that EU citizens and their family members can move to another member state initially for a period of three months. But it also says explicitly that the EU citizen has no right to any social assistance benefits during this time. Indeed, the UK has removed EU job-seekers’ access to job-seekers’ allowance during the first three months of their stay.

After three months, the Citizens’ Directive says that EU citizens and their family members can stay subject to further conditions: they are either workers or self-employed; or have ‘sufficient resources’ not to burden the social assistance system, along with health insurance; or are students in a post-secondary institution, if they have health insurance and declare that they will not be a burden to the social assistance system. The EU court hasconfirmed that there is no right to stay just to obtain social assistance without ever working in the host country. Recently it also confirmed the UK government’s refusal to pay child benefit or child tax credit to those who did not qualify to stay.

It’s sometimes suggested that ‘500 million people can move to the UK’ under EU free movement law. Yes – if there were 500 million jobs for them to come and do. Or 500 million university places available. Or if all of those 500 million people had a small fortune stashed away. Obviously nothing like those numbers of jobs, university places or self-sufficient people exist.

What about EU migrants who come to the UK and look for work? David Cameron has suggested they can be automatically removed after six months if they don’t find work. This isn’t correct: the Citizens’ Directive says that they can stay if they ‘can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’. But as mentioned already, they are not entitled to any benefits from the UK while looking for work. Also, they must meet the criteria of self-sufficiency, otherwise they would not be entitled to stay after three months anyway.

What if an EU migrant works in the UK for a time, then becomes unemployed? It is possible that they can retain status as a (former) worker, and therefore keep access to social assistance benefits. There are limits to this, however.  In particular, if the EU worker has been employed for less than one year in the UK, he or she would only retain ‘worker’ status for six months after becoming unemployed. At that point the UK can cut off access to their benefits, as the CJEU has confirmed.

Workers are entitled to equal treatment as regards benefits, including top-up benefits paid to those in work, which are a large part of the UK tax and benefit system. However, thedeal on the renegotiation of the UK’s EU membership specifies that if the UK votes to stay in the EU, the current EU rules will be changed so that the UK can apply a four-year ban for workers from other EU member states on in-work benefits.

There renegotiation deal also says that the UK will be able to limit on the child benefit exported to EU workers with children in other member states, fixing the rate of that child benefit to the cost of living in the country of the children’s residence.

After five years’ legal stay on the basis of the Citizens’ Directive, EU citizens and their family members can obtain permanent residence status, meaning that they no longer have restricted access to social benefits.

As for criminality, it is sometimes suggested or inferred that the UK cannot refuse entry or expel EU migrants on criminal law grounds at all. This is clearly false. The Citizens’ Directive allows for expulsion, entry bans or refusal of entry for those who are a threat to ‘public policy, public security or public health’. There are limits, however. Restrictions must be proportionate and ‘based exclusively on the personal conduct of the individual concerned’. People cannot be excluded on general preventive grounds, but on ‘personal conduct’ which ‘must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’.

British authorities can check on an individual’s police record after entry, and can also issue an entry ban preventing that person from coming to the UK in the first place. For those who are on the territory, there is greater protection against expulsion over time, but there is never any absolute ban on expulsion.

It has been suggested that the EU court has prevented 50 EU criminals from being removed from the UK. This is false. Any such judgments were made by UK courts or the European Court of Human Rights.

To prove that point, let’s look at a list of all the cases which the EU court decided on EU citizenship in the last five years. There are 53 cases, and only five of them concern expulsion or exit bans of EU citizens due to criminality. Of those five cases, just three concern the UK.

In those five cases, the Court decided that:

  1. a) time spent in prison in the UK  by an EU citizen’s family member did not count toward getting permanent residence under EU law (Onuekwere);
  1. b) an EU citizen convicted of child cruelty could not count prison time toward a ten-year threshold giving extra protection against expulsion (G case);
  1. c) the UK does not have to give an EU citizen information which could compromise national security during an expulsion proceeding (ZZ case);
  1. d) people with a drug trafficking conviction can be banned from leaving the country (Gaydorov); and
  1. e) child abusers can be expelled on grounds of ‘public security’ even if they have been resident for over ten years (I case).

So in every single relevant judgment in the last five years, the EU Court confirmed that Member States could limit the rights of convicted criminals or terrorist suspects.

The ‘Leave’ side has referred to another supposed EU court ruling, about the daughter-in-law of a terrorist in the UK. In fact there is no ruling in that case yet – only the non-bindingopinion of an ‘Advocate-General’. And according to that opinion, the person concerned can indeed be expelled, if a British court believes that she is a risk to public security.

It is also possible to expel EU citizens on grounds that they rely on social assistance.

One final point about the free movement of EU citizens. The Leave side has referred several times to the possibility of Turkey joining the EU. It’s sufficient to point out, as I discussed in a previous Referendum Briefing, that: a) every Member State has a veto on this; Turkey has agreed 1 out of 35 negotiating chapters, in 11 years of talks; and there would also be a lengthy period after Turkish accession before the free movement of persons applied.

Meijers comments on the proposed reforms of Dublin, Eurodac and of the new Asylum Agency

ORIGINAL PUBLISHED ON THE MEIJERS COMMITTEE SITE (*)

Comments on the Dublin recast proposal  (COM (2016) 197)

  1. General observations

The Meijers Committee would like to take this opportunity to comment on the proposed reform of the Dublin Regulation, as set forth in the 6 April 2016 EC communication to the EP and Council (COM (2016) 197) and the 4 May 2016 proposal for a regulation of the EP and Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (COM (2016) 270). The later proposal will be further referred to here as Dublin III recast.

On page 4 of the 6 April 2016 communication, the Commission succinctly lists the shortcomings of the Dublin regulation: “difficulties in obtaining and agreeing on evidence proving a Member State’s responsibility for examining the asylum application, leading therefore to an increase in the number of rejections of requests to accept the transfer of applicants. Even where Member States accept transfer requests, only about a quarter of such cases result in effective transfers, and, after completion of a transfer, there are frequent cases of secondary movements back to the transferring Member State. The effectiveness of the system is further undermined by the current rules which provide for a shift of responsibility between Member States after a given time. […] A further impediment to the effective functioning of the Dublin system results from the difficulty in transferring applicants to Member States with systemic flaws in critical aspects of their asylum procedure or reception conditions. The effective suspension of Dublin transfers to Greece since 2011 has proved a particularly critical weakness in the system. […] The Common European Asylum System is also characterized by differing treatments of asylum seekers, including in terms of the length of asylum procedures or reception conditions across Member States, a situation which in turn encourages secondary movements.”

The Meijers Committee wishes to add that Dublin’s ineffectiveness not only results from the difficulty of effectuating transfers but also from a general failure to initiate Dublin procedures, because asylum seekers have not been registered upon entering the EU. It is well known, not only that asylum seekers may seek to avoid registration, but that some Member States also disregard their obligation to register asylum seekers – some even on a large scale. It has been estimated, for example, that only half the persons entering Italy and applying for asylum somewhere in the EU were registered in that country1 In 2014, the proportion of physical Dublin transfers to the number of applicants for international protection in the EU was about 4 %, which suggests that Dublin is applied in far fewer cases than all those to which it is in fact applicable.2

To remedy these shortcomings, the Commission proposes two options:

  1. Supplementing the present system with a corrective fairness mechanism, or
  2. A new system for allocating asylum applications in the EU based on a distribution key.

Because the second option would be difficult to envisage in the short or medium term, the Commission has chosen to pursue the first one.

The Meijers Committee would first of all like to point out that none of the shortcomings listed by the Commission will be remedied by the first option, since it is essentially a continuation of the present Dublin system, which is demonstrably a failure. Why continue with a broken system instead of fixing the shortcomings, even though this may not produce significant results in the short term? Additionally, the Meijers Committee points to the fact that the Dublin regulation was only very recently recast (19 July 2013), so this recast has been undertaken within 3 years of the entry into force of the last recast regulation, while that recast came 10 years after the entry into force of the Dublin II regulation.

The Meijers Committee points out that at present there are two infringement procedures ongoing with regard to the Dublin regulation (in respect of Italy and Hungary), as well as four infringement procedures regarding the closely related Eurodac regulation (in respect of Croatia, Greece, Italy and Cyprus). Additionally, the Commission has recently sent a second supplementary letter to Greece expressing concerns over the persistence of serious deficiencies in the Greek asylum system, as well as a 10 February 2016 recommendation.

The belief that the Dublin system allocates responsibility unsustainably is widely held and is mentioned on page 3 of the explanatory memorandum to the Dublin III recast proposal. It is no coincidence that the infringement procedures mentioned above concern Member States on the EU’s external borders. These Member States have for a long time complained that they cannot process the large numbers of asylum seekers entering the EU through their territories. While the suggested corrective fairness mechanism can go some way to remedy this situation, it will not change the fact that it is these Member States who will bear the brunt of new arrivals. The corrective fairness mechanism will not be triggered until a Member State has received 150% of the maximum allocated number of applications deemed fair on the basis of that State’s GDP and population size. This only partly corrects disproportionate burden sharing, without addressing the fundamental shortcomings of the Dublin system, namely that this system wrongly presupposes that the asylum procedures are adequate and up to standard in all Member States. On the contrary, Member States still continue to display systemic deficiencies, which make Dublin transfers impossible. As has been accepted by the ECtHR in several recent judgments, there are significant national differences in the quality of reception and asylum systems, which continue to exist and which encourage secondary movements.3 Additionally, the Commission must take stock of the fact that its similar attempt of September 2015 at such a mechanism has so far not been successful: of the 160,000 asylum-seekers who should have been relocated, only 1,500 (909 from Greece and 591 from Italy) have been relocated.

The proposals under Dublin III recast do very little to address this unsustainable burden sharing, focusing instead on the risk of abuse of the rules laid down in the Dublin III regulation by individual asylum seekers, including their absconding.

  1. Detailed observations

Continue reading “Meijers comments on the proposed reforms of Dublin, Eurodac and of the new Asylum Agency”

Referendum Briefing 3: Does the EU have a ‘democratic deficit’?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Professors Laurent Pech and Steve Peers

The EU is regularly accused from suffering a ‘democratic deficit’. In particular, it is often asserted that all EU decisions are made by the EU Commission – who are ‘unelected bureaucrats’.

As we demonstrate in this post, this criticism is clearly invalid. It fundamentally misunderstands (a) the powers that the Commission has – and more generally how decisions are made in the European Union; and (b) the way in which the European Commission gets into office. We will examine each of those issues in turn.

Who does what? Does the Commission adopt all EU laws?

The crucial thing about the EU system is that the Commission does not have anywhere near as much power as many people think it has. The standard EU’s decision-making process is: the Commission alone makes legislative proposals. Those proposals are thenconsidered by the Council (the intergovernmental body representing elected national governments), jointly with the elected Members of the European Parliament (representing EU citizens), whose powers have been gradually and significantly increased over the last three decades. Some people say that the Council and European Parliament simply rubber-stamp Commission proposals, but that is not true: they sometimes reject them and almost always amend them.

This graph illustrates the EU decision-making process: Continue reading “Referendum Briefing 3: Does the EU have a ‘democratic deficit’?”

EU Referendum Briefing 1: Can the UK control the EU’s future if it stays a member?

 ORIGINAL PUBLISHED ON EU LAW ANALYSIS BLOG

by Steve Peers

During the EU referendum campaign, a number of arguments have been made that staying in the EU is risky, because of possible future developments of the EU itself. While there will always be someone somewhere who says they would like to see an EU army, or some development related to the single currency, such an expression of opinion is meaningless by itself.  The fundamental issue is whether the UK could control such developments – either by vetoing them or opting out.

So what’s the worst that can happen? In this post, I’ll examine in turn the main alleged risks to staying in the EU. As we’ll see, in every single case the UK has control, either by an opt-out or a veto. In other words, none of these things can happen without the British government’s consent. Nearly all of them would also need our Parliament’s consent. And the large majority – all the fundamental possible changes to the EU that many are concerned about – would actually need the consent of the British public in another referendum. (Anyway, there’s nothing to stop the UK holding another referendum on EU membership in future, if it wanted to).

All of these safeguards for UK control of further developments of the EU exist in the current law of the EU – as I will show in detail. None of them are first created by the renegotiation of EU membership agreed this February.

I’ll look at seven issues where the UK has control over future EU developments:

a) defence;
b) transfers of power;
c) new Member States, including Turkey;
d) taxation;
e) non-EU immigration, asylum and criminal law;
f) the single currency; and
g) the EU budget, including the UK rebate.

There’s also an earlier blog post on the controversial issue of the planned EU/US trade deal (TTIP) and the NHS.

a) EU Defence and foreign policy Continue reading “EU Referendum Briefing 1: Can the UK control the EU’s future if it stays a member?”