Category: 2. Values & principles of the European Union

(EU and UK) The draft renegotiation deal: EU immigration issues

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Tuesday, 2 February 2016)

by  Steve Peers

This is the first in a series of blog posts about the draft deal on the renegotiation of the UK’s EU membership, tabled earlier today. I am starting with the critical issue of free movement of EU citizens (often referred to as ‘EU immigration’). Subsequent posts will be on the other substantive issues (competitiveness, Eurozone relations, sovereignty) and on the legal form of the deal.

The draft deal takes the form of six draft legal texts: a Decision of the EU Member States’ Heads of State and Government (the ‘draft Decision’); a Statement of the Heads of State and Government (which consists of a draft Council Decision); a Declaration by the European Council (which consists of the EU Member States’ Heads of State and Government, although when acting collectively they are legally distinct from the European Council): and three declarations by the Commission. Of these, Section D of the draft Decision and two of the Commission declarations relate to immigration issues.

Having said that, the key feature of the draft deal on immigration is the intention to propose amendments to the three main current EU laws. These three laws are: (a) the EU citizens’ Directive, which sets out the main rules on most EU citizens moving to other Member States: (b) the EU Regulation on free movement of workers, which contains some specific rules on workers who move; and (c) theRegulation on social security, which sets out rules on coordination and equal treatment in social security for those who move between Member States.  The draft Decision

All three sets of amendments are to be proposed by the Commission as soon as the main draft Decision enters into force. That will happen (see Section E of the draft Decision) as soon as the UK announces that it will remain a member of the EU (that would only happen, of course, if the UK public vote to remain in the upcoming referendum). The draft deal includes a commitment from the Commission to make these proposals, and from the other Member States to support their adoption in the EU Council (oddly, the latter commitment does not apply to the proposed amendment to the citizens’ Directive, since that proposal is not referred to in the draft Decision).

However, all three proposals are subject to the ‘ordinary legislative procedure’, meaning that they have to be agreed with the European Parliament. It is also possible that their legality would be challenged before the EU Court of Justice. I can’t appraise the political likelihood of the European Parliament approving the proposals, but I will offer some thoughts about possible challenges to their legality if they are agreed.

Unlike some other parts of the draft deal (on the position of non-Eurozone states, and the clarification of ‘ever closer union’), there is no mention of possible future Treaty amendments to give effect to any part of the text dealing with free movement (immigration) issues. It should be kept in mind that the texts are not final, and at least some amendments might be agreed before their formal adoption – which is planned for later in February.

Although the press discussion has focussed on the ‘emergency brake’ in in-work benefits, there are three categories of issues: benefits (including a couple of points besides that emergency brake); the family members of non-EU citizens; and EU citizens who commit criminal offences. I refer back to Cameron’s November 2014 speech on EU immigration issues (which I analysed here) where relevant.

It should be noted that there is no proposed text in the deal on two of the issues which Cameron had raised: removal of job-seekers if they do not find a job within six months, and a requirement to have a job offer before entry. Both these changes would have required a Treaty amendment, in light of the Antonissen judgment of the CJEU.

Benefits

There are three benefits issues in the draft deal: (a) the ‘emergency brake’ for in-work benefits; (b) the export of child benefit; and (c) benefits for those out of work.

‘Emergency brake’ on in-work benefits

Cameron had called for no access to tax credits, housing benefits and social housing for four years for EU citizens, but later signalled his willingness to compromise on this point. The position of non-workers and job-seekers is discussed below; but the position of workers is legally and politically difficult, since the Treaty guarantees them non-discrimination.

In the end, the draft deal suggests not permanent discrimination on this issue, but temporary discrimination on the basis of an ‘emergency brake’. The Commission will propose legislation on this issue, which will provide that the UK (or other Member States) can apply a four-year ban on in-work benefits, subject to substantive and procedural criteria. Procedurally, the rules will say that a Member State will apply to the Council to authorise the ban, which will approve it by a qualified majority on a proposal from the Commission (the European Parliament will have to approve the legislation, but would have no role on deciding if the brake should be pulled). A Commission declaration states the UK qualifies to pull this ban immediately; but there is nothing in the deal to suggest that Member States – who would have the final word – also agree. As I have already pointed out, there is no legal requirement in EU law that the legislation would have to give the final word to the Council, rather than the UK itself. The restrictions would only apply for a certain number of years (the exact number is not yet agreed), and would have to be phased out during that time. It’s not clear how much time would then have to pass before they could be applied again.

On what grounds could the brake be applied? According to the draft Decision, it would apply where: ‘an exceptional situation exists on a scale that affects essential aspects of [a Member State’s] social security system, including the primary purpose of its in-work benefits system, or which leads to difficulties which are serious and liable to persist in its employment market or are putting an excessive pressure on the proper functioning of its public services’.

There’s certainly a widespread perception that one of more of these problems exist in the UK and are caused by the large increase in the number of workers from other Member States in recent years. However, there are two serious problems with the proposed mechanism. Firstly, as Jonathan Portes has argued, objective evidence for this view is lacking. Secondly, while the CJEU has been willing to accept certain limits to free movement rights on the grounds of protecting health systems (see my prior blog post for details), this proposal would have a much more far-reaching impact on non-discrimination for workers. It’s certainly conceivable that by analogy from the Court’s obvious willingness to keep EU monetary union afloat, along with its endorsement of restrictions for non-workers in recent years (see below), it might accept that these plans do not violate the Treaties. But as EU currently stands, that is probably a long shot.

Export of child benefit

Cameron sought to end payment of child benefit to children living in other Member States. This payment is provided for in the EU social security coordination Regulation, which would have to be amended to change those rules. There was a strong argument that the plan would have breached the Treaties, since in the case of Pinna the CJEU struck down EU legislation that allowed Member States not to export such benefits at all as a breach of the rules on free movement of workers.

The draft deal does not go as far as Cameron wanted: instead child benefit can be limited by indexing it to the standard of living in the receiving State. It’s an open question whether this would breach the Treaties, since there is no case law on the point.

Benefits for those out of work

Cameron sought to end social assistance for job-seekers. The EU legislation already rules out social assistance for job-seekers, so this reflects the status quo. Although the CJEU has said that job-seekers have a right to access benefits linked to labour market participation, if they have a link already with the labour market in question, it took a narrow view of this rule in the judgment in Alimanovic. Pure benefit tourists (who have never had work in the host State) are not entitled to benefits, according to the judgment in Dano. So the draft Decision simply reiterates this case law, which has already satisfied Cameron’s main objectives in this field.

EU citizens’ family members

Under the EU citizens’ Directive, currently EU citizens can bring with them to another Member State their spouse or partner, the children of both (or either) who are under 21 or dependent, and the dependent parents of either. This applies regardless of whether the family members are EU citizens or not. No further conditions are possible, besides the prospect of a refusal of entry (or subsequent expulsion) on grounds of public policy, public security or public health (on which, see below).

In principle EU law does not apply to UK citizens who wish to bring non-EU family members to the UK, so the UK is free to put in place restrictive rules in those cases (which it has done, as regards income requirements and language rules). However, the CJEU has ruled that UK citizens can move to another Member State and be joined by non-EU family members there, under the more generous rules in the EU legislation. Then they can move back to the UK with their family members, now invoking the free movement rights in the Treaties. In 2014, the CJEU clarified two points about this scenario (as discussed by Chiara Berneri here): (a) it was necessary to spend at least three months in the host Member State exercising EU law rights and residing with the family member, before coming back; and (b) the EU citizens’ Directive applied by analogy to govern the situation of UK citizens who return with their family members.

In his 2014 speech, David Cameron announced his desire to end all distinction between EU citizens and UK citizens as regards admission of non-EU family members, by allowing the UK to impose upon the EU citizens the same strict conditions that apply to UK citizens. Since this would have deterred the free movement of those EU citizens who have non-EU family members, there is a good change that it would have required not just a legislative amendment but a Treaty change.  (Note that according to the CJEU, EU free movement law does not just require the abolition of discrimination between UK and other EU citizens, but also the abolition of non-discriminatory ‘obstacles’ to free movement).

However, the draft deal does not go this far. The main draft decision states that: ‘In accordance with Union law, Member States are able to take action to prevent abuse of rights or fraud, such as the presentation of forged documents, and address cases of contracting or maintaining of marriages of convenience with third country nationals for the purpose of making use of free movement as a route for regularising unlawful stay in a Member State or for bypassing national immigration rules applying to third country nationals.’

The Commission Declaration then states that it will make a proposal to amend the citizens’ Directive: ‘to exclude, from the scope of free movement rights, third country nationals who had no prior lawful residence in a Member State before marrying a Union citizen or who marry a Union citizen only after the Union citizen has established residence in the host Member State. Accordingly, in such cases, the host Member State’s immigration law will apply to the third country national.’

That Declaration also states that the Commission will clarify that: ‘Member States can address specific cases of abuse of free movement rights by Union citizens returning to their Member State of nationality with a non-EU family member where residence in the host Member State has not been sufficiently genuine to create or strengthen family life and had the purpose of evading the application of national immigration rules’; and ‘The concept of marriage of convenience – which is not protected under Union law – also covers a marriage which is maintained for the purpose of enjoying a right of residence by a family member who is not a national of a Member State.’

It seems clear that these ‘clarifications’ will not be included in the legislative proposal, since the declaration later concludes (emphasis added): ‘These clarifications will be developed in a Communication providing guidelines on the application of Union law on the free movement of Union citizens.’

Let’s examine the planned legislative amendments, then the ‘clarifications’.

The proposed amendments would exclude two separate categories of non-EU citizens from the scope of the citizens’ Directive: those who did not have prior lawful residence in a Member State before marrying an EU citizen who has moved to another Member State; and those who marry such an EU citizen after he or she has moved to a Member State. It’s possible to fall into both categories; the first category will exclusively apply to those who got married while an EU citizen lived in a non-EU state, or those who got married in an EU State even though the non-EU citizen was not lawfully resident there. For these people, national immigration law will apply.

The background to this proposal is CJEU case law. In 2003, in the judgment in Akrich, the CJEU ruled that Member States could insist that non-EU family members had previously been lawfully resident in the Member State concerned (previously no such rule appeared to exist). But in 2008, in Metock, the CJEU overturned this ruling and said that a prior legal residence requirement was not allowed.

Several points arise. First, the basic definition: what is lawful residence exactly? Presumably it means more than lawful presence, ie a stay of three months on the basis of a valid visa or visa waiver. But what about ambiguous cases, such as a pending asylum application or appeal? EU legislation says that asylum-seekers can usually stay until the application fails (if it fails), and then during the appeal (subject to some big exceptions). According to the CJEU, the EU’s main rules on irregular migrants therefore don’t apply to asylum-seekers whose application is pending.

Secondly, it’s odd to refer to national law alone, since sometimes EU law governs the admission of non-EU nationals. Even the UK (along with Ireland) is bound by the first-phase EU asylum law, and by the EU/Turkey association agreement.  Denmark is bound by the latter treaty. And all other Member States are bound by the second-phase asylum law, along with EU legislation on admission of students and researchers and some categories of labour migrants (the highly-skilled,seasonal workers and intra-corporate transferees).

Thirdly, it’s arguable that the EU principle of non-discrimination applies. That would mean, for instance, that if a German woman already in the UK married her American husband, the UK would have to treat her the same as a British woman in the same situation – but no worse. This would in fact be relevant to every Member State – there’s nothing in this part of the proposal that limits its application to the UK.

Finally, the consequences of the rule need to be clearer. Does the exclusion from the scope of the Directive mean that the family member is excluded forever from the scope of the citizens’ Directive – even if the person concerned is admitted pursuant to national immigration law? That would mean that national immigration law (or EU immigration legislation, in some cases) would continue to govern issues such as the family member’s access to employment or benefits, or subsequent permanent residence. It’s also not clear what happen to children such as the step-child of the EU citizen, or a child that was born to the EU and non-EU citizen couple while living in a third country.

Could this legislative amendment violate the EU Treaties? In its judgment in Metock, the Court referred almost entirely to the wording of the citizens’ Directive. It mainly referred to the Treaties when concluding that the EU had the competenceto regulate the status of EU citizens’ third-country national family members. But it also referred to the Treaty objective of creating an ‘internal market’, as well as the ‘serious obstruct[ion]’ to the exercise of freedoms guaranteed by the Treaty, if EU citizens could not lead a ‘normal family life’. It must therefore be concluded that there is some possibility that the revised rules would be invalid for breach of EU free movement law.

Would the amendment violate the EU Charter right to family life? That’s unlikely. While the right to family life is often invoked to prevent expulsions of family members, the case law of the European Court of Human Rights gives great leeway to Member States to refuse admission of family members, on the grounds that the family could always live ‘elsewhere’ – as the CJEU has itself acknowledged (EP v Council). There is some possibility, though, that the CJEU would be reluctant to follow that case law (EP v Council concerns families entirely consisting of non-EU nationals) in the context of free movement: the idea that you could go away and enjoy your family life somewhere else is antithetical to the logic of free movement.

As for the ‘clarifications’ in future guidelines, they will of course not be binding. They first of all refer to cases where an EU citizen has moved to another Member State and come back to the home State (known in the UK as the Surinder Singh route). The definition of what constitutes a ‘sufficiently genuine’ move to another country is set out in the case law (three months’ stay with a family member) and mere guidelines cannot overturn this.

It should be noted that the Surinder Singh case law is in any event derived from the Treaty. This line of case law does not accept that such movement between Member States is an ‘evasion’ of national law – as long as free movement rights are genuinely exercised with a family member for a minimum time. The CJEU also usually assumes (see Metock, for instance) that a ‘marriage of convenience’ cannot apply to cases where there is a genuine relationship, even if an immigration advantage is gained. (The Commission has released guidelines already on the ‘marriage of convenience’ concept: see analysis by Alina Tryfonidou here).

Having said that, the planned legislative changes will complicate the plans of people who wish to move to another Member State with their non-EU family and then move back, since national immigration law will apply to their move to the first Member State. It will be important to see how the legislative amendments address the transitional issues of people who have already moved to a host Member State before the new rules apply. Can the home Member State say that those families must now obtain lawful residence in the host State for the non-EU family member, before the non-EU family member can come to the home State?

Criminality and free movement law

The Treaties allow for the refusal or entry or expulsion of EU citizens on ‘grounds of public policy, public security or public health’. The citizens’ Directive sets out detailed substantive and procedural rules on this issue, which has been the subject of considerable CJEU case law.

What would the renegotiation deal do? First of all, the draft decision states that: ‘Member States may also take the necessary restrictive measures to protect themselves against individuals whose personal conduct is likely to represent a genuine and serious threat to public policy or security. In determining whether the conduct of an individual poses a present threat to public policy or security, Member States may take into account past conduct of the individual concerned and the threat may not always need to be imminent. Even in the absence of a previous criminal conviction, Member States may act on preventative grounds, so long as they are specific to the individual concerned.’

To this end, the Commission declaration states that it will: ‘also clarify that Member States may take into account past conduct of an individual in the determination of whether a Union citizen’s conduct poses a “present” threat to public policy or security. They may act on grounds of public policy or public security even in the absence of a previous criminal conviction on preventative grounds but specific to the individual concerned. The Commission will also clarify the notions of “serious grounds of public policy or public security” and “imperative grounds of public security” [grounds for expelling people who have resided for longer periods in a host Member State].  Moreover, on the occasion of a future revision of [the citizens’ Directive], the Commission will examine the thresholds to which these notions are connected.’

It’s not clear whether the revision of the Directive referred to at the end here will be as imminent as the planned proposal to amend the rules on a ‘prior lawful residence’ rule for non-EU family members. Otherwise the plan to issue guidelines is clearly not binding. The language on these guidelines partly reflects the existing law, but some features are new: the greater emphasis on past conduct, the lesser need to show that a threat is imminent and the possibility of expelling someone as a ‘preventative’ measure.

These changes fall within the scope of Cameron’s desire to have ‘stronger measures to deport EU criminals’. However, it should be noted that there is no specific reference to his plans for ‘tougher and longer re-entry bans for foreign rough sleepers, beggars and fraudsters’. While a conviction and re-entry ban for fraud might be covered by the guidelines referred to above, there’s no mention of clarifying entry bans as regards those guidelines, or changing the legislation on this issue. Also, as I noted in my comments on Cameron’s plans at the time, EU legislation does not allow for re-entry bans for rough sleepers and beggars, since the EU citizens’ Directive states unambiguously that a ban on entry cannot be imposed where a person was expelled for grounds other than public policy, public security and public health.

Longer waiting periods for free movement of persons from new Member States

Finally, it should be noted that the draft Decision briefly refers to Cameron’s plan to have longer waiting periods for free movement of persons in future accession treaties. It does not incorporate his suggestion, but merely notes it. However, since the details of each new Member State’s adaptation to EU law are set out in each accession treaty, which has to be approved by each Member State, the UK can simply veto any future accession treaties unless longer waiting periods for free movement are indeed included. The next accession to the EU is at least four years away, probably more. So nothing really turns on the absence of agreement with the UK’s position for now.

Conclusion

How to appraise the planned changes to free movement law? The most fervent supporters of the EU are likely to see some or all of them as a betrayal of the EU’s principles that should never be tolerated. But the departure of a large Member State is liable to do far greater damage to the EU’s integration project than acceptance of these changes ever would.

The changes, if they are all implemented as planned, would fall short of afundamental change in the UK’s relationship with the EU. But equally it is clearly wrong to say that they mean nothing – if in fact they are implemented. The changes would be modest but significant: amendments to three key pieces of EU legislation that would for the first time roll back EU free movement law, not extend it. Leaving aside the calls for non-binding guidelines, there would be cutbacks in in-work benefits (albeit for a limited period), significantly more control on the admission of non-EU family members of EU citizens, and more limited export of child benefit.

The plans not only raise questions of interpretation (although most legislative reforms do that), but of political and legal feasibility: the Commission is willing to propose them and the Member States support two of them, but do Member States support the third proposal – and the UK’s intention to pull the ‘emergency brake’? Will the European Parliament support any of them? Which of them would get past the CJEU? My assessment, as detailed above, is that the amendments on family members will probably be acceptable; the child benefit reforms are an open question; and the changes on in-work benefits are highly vulnerable.

Others may reach a different legal conclusion, of course. And British voters will also be making an assessment not only of the rest of the renegotiation package, but also on the broader pros and cons of EU membership.  These changes go nowhere near far enough for the EU’s strongest critics, but much too far for its biggest admirers. Time will soon tell whether the British public believes that they are a reasonable compromise.

Barnard & Peers: chapter 13

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Labels: benefits, Brexit, David Cameron, emergency brake, EU citizenship, EU reform, expulsion,family reunion, free movement of persons, free movement of workers, UK renegotiation

The Charter of Fundamental Rights of the European Union: a tool to enhance and protect the rule of law ?

NB This is an intervention during the  Conference “The Shield of Europe: The European Charter of fundamental rights” , European Parliament Brussels 13.01.2016

 By Giuseppe BRONZINI (*)

 (Original Italian – Translated by Yasha MACCANICO)

1. Fifteen years after the European Charter of Fundamental Rights’ proclamation in Nice and six years after its transformation into a text of EU primary law, now may be the right time to rationally assess its impact on the European legal order (covering both the EU institutions and the Member States when acting under the EU Treaties) in order to evaluate the critical tensions it gives rise to, as well as its unfulfilled potential.

First and foremost this could apply to the Charter as an instrument to implement the principle of the rule of law, which is currently under strain at both the supranational level (see the lack of transparency and democracy in EU economic governance) and at the national level, as emerged recently in the Hungarian and Polish cases, which have drawn the attention of the media and the European Commission.[2]

Despite its current limits, which will be discussed in detail, we must recognise that the Charter Project is, to date, the most significant attempt to upgrade the integration process in the European Union (mainly developed previously in the economic sphere) in order to achieve a deep connection between the European Institutions and European citizens through the constitutionalisation of their rights.

The Charter and the new complementary rules in the Treaties now enable the European Institutions, as well as national governments acting within the EU framework, to be legitimated, at least insofar as the substantial aspect of respect for fundamental rights is concerned. The mere fact that now the legitimacy of public action at a supranational level may derive from the safeguard of fundamental rights which, in modern democratic legislatures, is accompanied by the legitimation deriving from (parliamentary) delegation of political will procedures, criteria of accountability for government bodies, mechanisms for direct public discussion and participation for citizens, could be a basis to overcome the current weaknesses of EU action.

Having stated this, we should not forget that the Charter was first conceived in the 2000 Convention as a “Bill of Rights” which, even without a wider constitutional charter, would operate primarily in the judicial field rather than the political arena. However, even in this ancillary position, the Charter has been incorporated into a successful story involving the gradual establishment of an integrated supranational judicial system. Increasing numbers of national judges work directly as guarantors of European law, under the indirect control of the Court of Justice of the European Union, enacting principles envisaged for decades by the European legal order (which render it independent from national self-protection mechanisms). These include the principles of the direct effect and the primacy of EU law, the duty of compliant interpretation of EU law and, when necessary in specific cases, the possibility of not applying national rules and access to preliminary ECJ rulings.

On the latter aspect of preliminary rulings, it appears that the ECJ wants to add a duty to review national judgements which do not comply with supranational law (even by sanctioning non-compliant national judges) and it is even creating “temporary remedies” which were not originally envisaged to protect the lives of defendants while judgements are pending. Such measures demonstrate a clear effort aiming to force rebel or recalcitrant national jurisprudences to abide with EU law.

These are extremely powerful and consolidated tools. Hence, the Charter’s success has been wisely entrusted to the functioning of these typically European remedies which were clearly not created for this purpose, but are now part of the European judges’ toolbox, used on a daily basis by national (local) judges who people turn to in order to obtain justice.

Well, my view, considering the 1999 Simitis Report [3] which settled the institutional base of the codification process, is that the Charter was meant to have four main institutional objectives. Firstly (objectives 1 and 2), to offer visibility and legal certainty to fundamental rights which were previously only protected on a case-by-case basis by the Court of Justice. The third principle was to make these Charter rights autonomous from the judges of the Luxembourg Court, thus fully legitimating it, so that they may not be accused of creating rather than applying EU law anymore. In this sense, the Charter is allowed to act as a real “Bill of Rights”, that is, as a parameter of the substantive legitimacy of European Law (constitutional review) and of national legal systems when they come into contact with it. Fourth, and finally, the Charter was meant to grant an autonomous legal status to social rights to make them equivalent to first- and second-generation fundamental rights, leading to their protection per se, beyond an ancillary rationale which subordinated them to the pursuit of the main economic goals of the integration process, used in past Court of Justice jurisprudence to guarantee them.

The legal doctrine also envisaged a cross fertilizing effect [4] in view of the Charter’s ability to function as a coordination point and as a factor, in the medium term, for convergence between internal and supranational constitutional horizons beyond the  limits imposed by predefined competences, up to the point of issuing judgements for “failure to act” resembling those by the main European Courts. A positive outcome of the Charter was widely attributed to its so-called “inductive effect”, a concept coined by Habermas, as a means of strengthening European citizenship. By acting to preserve this citizenship’s rights, it would have contributed to developing a European public sphere, which would become the foundation for subsequent constitutional development.

2. As far as the visibility of fundamental rights is concerned, it has clearly been achieved during the Charter’s first six years, as has the full legitimation for the Court of Justice to use the semantics of fundamental rights. Continue reading “The Charter of Fundamental Rights of the European Union: a tool to enhance and protect the rule of law ?”

The ’emergency brake’ on EU citizens’ benefits: Must the Commission or Council control it?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Sunday, 31 January 2016)

by Steve Peers,

One issue that has arisen in the UK’s renegotiation of EU membership is the procedure for the UK (or other Member States) invoking an ‘emergency brake’ to limit access to in-work benefits by EU citizens. Should a Member State be able to pull the ‘emergency brake’ on its own initiative (perhaps with a requirement to notify the Commission and Council)? Or should it only be able to make a request to that effect, with the Commission and/or Council deciding on whether to authorise it?

The following analysis demonstrates that there is no legal rule which requires that only the Commission and/or Council can authorise a Member State to pull the emergency brake. Therefore it is a matter of political discretion to decide on who should pull it.

Treaty rules

There is no general rule in the Treaty governing the use of Member States’ safeguards and derogations. The possible limits on free movement rules on grounds of public policy et al refer only to decisions by Member States’ governments, although the EU institutions have the power to adopt legislation on these issues. Similarly, the power to disapply EU law in times of war, threat of war or civil disturbance is invoked by Member States; the Treaty only refers in this case to discussions with the Commission, and a possible special procedure before the Court of Justice. (To keep this text readable for non-lawyers, I have put the precise details of all the laws referred to in an annex.)

On the other hand, there are some Treaty Articles which provide for authorisation for Member States’ action by the Commission (as regards higher national standards following internal market harmonisation), or by the Council (to authorise a state aid which the Commission has ruled out, or to permit a tax rule restricting movement of capital to third countries).

The Treaty provisions most directly relevant to social security and immigration of large numbers of people give the final say to Member States. In particular, if a Member State pulls an ‘emergency brake’ to stop EU decision-making on social security for EU citizens exercising free movement rights, there is discussion in the European Council, but the proposal can ultimately be blocked if there is no agreement there among all Member States. The case law of the CJEU implicitly confirms that if Member States wish to restrict the free movement of EU citizens on grounds of public health, they may do so without being subject to an EU control procedure (Bressol). And the power to control the volumes of non-EU citizens coming from third countries to the EU to work rests entirely with the Member States.

In certain cases, the CJEU has insisted upon a Community (EU) control procedure for Member States’ derogations. But those cases apply to circumstances where the EU both has exclusive competence, and there are Treaty provisions relating to the control procedure. In Commission v UK, the Court relied on the 1972 Act of Accession and the exclusive EU competence over fisheries conservation to justify its conclusion that Member States have ‘special duties of action and abstention’ where the Commission has made proposals to the Council which had not yet been adopted, entailing prior Commission approval of Member State action. In its subsequent judgment in Bulk Oil, the Court essentially confined the Commission v UK judgment to its particular facts.

In Donckerwolke, the Court stated that national measures relating to trade with non-EU countries needed Commission approval. Again, though, this was in light of the exclusive EU competence in the area, and in particular of Article 115 EEC (since repealed), which detailed this process. The exclusive EU powers over these two issues can be distinguished from the shared power over the internal market.

Secondary law

The most relevant provisions in EU secondary legislation tend to give power to Member States to trigger derogations, with at most an information and consultation requirement for the EU institutions. Most significantly, the EU citizens’ Directive leaves it entirely to Member States to trigger the exceptions to EU citizens’ access to benefits. The EU’s patients’ Directive (more on that Directive here) allows Member States to limit reimbursement of costs incurred by patients in other Member States, subject only to a requirement to inform the Commission.

Equally the legislation referring to movements of large numbers of third-country nationals reserves power to Member States. The asylum procedures Directive allows Member States to adopt a longer deadline to decide on asylum applications where there a ‘large number’ of applications, without even a notification requirement. Also, Member States alone decide on whether to derogate from the rules on border procedures in the event of a ‘large number’ of applications at the border or in a transit zone.

Under the Directive on reception conditions for asylum-seekers, Member States may adopt different rules where the normal accommodation to be provided is ‘temporarily exhausted’, with no control requirement. And under the Returns Directive, Member States can derogate from some safeguards on immigration detention if there are an ‘exceptionally large number’ of irregular migrants; but they need only inform the Commission of this decision.

Finally, an example from outside the field of immigration, free movement and social security proves that Member States are often given sole discretion to decide on derogations in other fields of EU law too. The working time Directive provides for four categories of derogations. The first three categories are entirely up to Member States’ discretion. The fourth category, which sets out transitional rules for doctors in training which have now expired, set out rules requiring only a Commission opinion before Member States extended the relevant transitional period.

Of course, secondary EU law is required to comply with EU primary law in the Treaties, and so the lack of EU control procedures over derogations would be invalid if it violated the Treaties. But as discussed in the first part, the Treaties set out no general rule on the EU political institutions’ control of Member States’ derogations from EU law. Indeed, in the particular areas of free movement and social security, they expressly leave the power to decide on such measures to Member States. This is, however, without prejudice to the possibility of judicial control (by the national courts and the CJEU) to determine whether most of these national decisions (except for the ‘emergency brake’ on social security decision-making) have been validly exercised.

 

 

Annex – Articles in Treaty and legislation referred to

Free movement exceptions: Articles 45(3), 52(1), 62 and 65(1) TFEU

Emergency wartime derogation: Article 348 TFEU

Higher national standards following internal market harmonisation: Article 114 TFEU

State aid authorisation: Article 108(2) TFEU

Tax rule restricting movement of capital to third countries: Article 65(4) TFEU

Social security and free movement of persons: Article 48 TFEU

Volumes of third-country nationals coming to work: Article 79(5) TFEU

Fisheries conservation ruling: Case 804/79 Commission v UK, referring to Article 102 of the 1972 Act of Accession (paras 17, 28 and 31 of the judgment)

Case 174/84 Bulk Oil: para 56

EU competences: Articles 3(1) and 4(1)(a) TFEU

EU citizens’ Directive (Directive 2004/38): Article 24

EU’s patients’ Directive (Directive 2011/24): Article 7(9) and (11)

Asylum procedures Directive (Directive 2013/32): Articles 31(3)(b) and 43(3)

Directive on reception conditions for asylum-seekers (Directive 2013/33): Article 18(9)(b)

Returns Directive (Directive 2008/115): Article 18

Working time Directive (Directive 2003/88): Article 17

Fit for purpose? The Facilitation Directive and the criminalisation of humanitarian assistance to irregular migrants

EXECUTIVE SUMMARY OF A STUDY FOR THE EUROPEAN PARLIAMENT LIBE COMMITTEE (Full study – 128 pages-accessible HERE) 

Authors: Dr Sergio CARRERA , Prof. Elspeth GUILD, Dr Ana ALIVERTI, Ms Jennifer ALLSOPP ,Ms Maria Giovanna MANIERI, Ms Michele LEVOY

The ongoing ‘asylum crisis’, with the tragic experiences and loss of lives among people trying to reach and cross the EU’s external borders, has been the catalyst for renewed EU policy efforts to address the issue of irregular migration and people smuggling  in the scope of the  European Agenda on Migration.

The issue of facilitating the entry, transit and stay of irregular migrants has been politicised at the EU’s internal borders and within Member States during the course of 2015. While migrants remain in transit in areas such as Calais, Ventimiglia and the Serbian-Croatian border, often seeking out the services of smugglers to cross into neighbouring states to reunite with family members or fulfil a personal migration goal, humanitarian actors seek to respond to their human rights and needs in an increasingly ambiguous, punitive and militarised environment. Within many EU Member States, the backdrop of austerity and cuts to public services has placed local authorities and civil society actors in a difficult position as they seek to respond to the basic needs of new and  established  migrants.

In the EU Action Plan against migrant smuggling (2015-2020) (COM(2015) 285), the Commission noted that it would ensure that appropriate criminal sanctions are in place while avoiding the risks of criminalising those who provide humanitarian assistance to migrants in distress. Accordingly, the Commission has at least implicitly acknowledged the inherent tension between assisting irregular migrants to enter, transit and remain in EU Member States and the real risks this poses to those who provide humanitarian assistance of being subject  to criminal  sanctions.

This tension between the criminalisation of people smuggling and those providing humanitarian assistance is a by-product of Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (the Facilitation Directive) and the Council Framework Decision implementing it – collectively known as the ‘Facilitators’ Package’. The tension arises because the Facilitators’ Package seeks to compel Member States to provide criminal sanctions for a broad range of behaviours that cover a continuum from people smuggling at one extreme to assistance at the other, but it does so with a high degree of legislative ambiguity and legal uncertainty.

The implementation of the Facilitators’ Package has been said to face a number of key challenges. There is, however, a lack of on-the-ground information about the multilayered effects of the practical implementation of the Facilitation Directive on irregular migrants and those providing assistance to them. This study aims to address this gap by providing new knowledge on this issue, while also identifying areas for further research. It provides a comprehensive understanding of the implementation of the humanitarian exception provisions of the Facilitators’ Package and their impact on irregular migrants, as well as the organisations and individuals assisting them in selected Member States.

The study finds a substantial ‘implementation gap’ between the UN Protocol against the Smuggling of Migrants by Land, Sea and Air (referred to as the UN Smuggling Protocol) and the international and EU legal frameworks on people smuggling. Chiefly, the latter differs from the UN Protocol in three main ways: i) the extent of the inclusion and definition of an element of “financial gain” in the description of facilitation of irregular entry, transit and stay; ii) the inclusion of an exemption of punishment for those providing humanitarian assistance; and iii) the inclusion of specific safeguards for victims of   smuggling.   As   a   result   of   the   discretionary   powers   granted   to   Member   States    in   the implementation of the Facilitators’ Package, the study further finds variation in the way in which laws are implemented in the national legislation of selected Member States. This results in legal uncertainty and inconsistency, and impacts on the effectiveness of the legislation.

An analysis of available statistics coupled with an in-depth analysis of court cases in selected countries involving the criminalisation of facilitation and humanitarian assistance reveals that qualitative and quantitative data on the prosecution and conviction rates of those who have provided humanitarian assistance to irregular migrants is lacking at the national and EU level. We can therefore identify a significant knowledge gap regarding the practical use and effects of the criminalisation of entry, transit and residence. Domestic court cases in selected EU Member States offer anecdotal evidence that family members and those assisting refugees to enter have been criminalised. Meanwhile, domestic developments in Greece and Hungary suggest that these laws are being applied with renewed rigour but with minimal monitoring of the direct or indirect impact on humanitarian assistance. Irrespective of the actual number of convictions and prosecutions, the effects of the Facilitators’ Package extend beyond formal   prosecutions and the number  of criminal  convictions.

Drawing on primary evidence from an online survey, the study demonstrates that, in addition to direct and perceived effects, the Facilitation Directive has profound unintended consequences (or indirect effects) that have an impact not just on irregular migrants and those who assist them, but also on social trust and social cohesion for society as a whole. Some civil society organisations fear sanctions and experience intimidation in their work with irregular migrants, with a deterrent effect on their work. They similarly highlight the lack of EU funding to support the work of cities and civil society organisations providing humanitarian assistance to irregular migrants. Moreover, we find widespread confusion among civil society practitioners about how the Facilitation Directive is implemented in their Member State, which can lead to misinformation and ‘erring on the side of caution’, thereby compromising migrants’ access to vital services. This is especially true in the context of the current migration crisis, where everyday citizens are obliged to volunteer vital services in the absence of sufficient state provision. This confusion stems in part from a lack of coordination between local and national authorities regarding implementation  of the Facilitation  Directive.

In certain Member States, the implementation of the Facilitation Directive is perceived to contribute to the social exclusion of both irregular and regular migrants and to undermine social trust. Shipowners report that they feel poorly supported by Member States and  are ill  placed  to  help  irregular migrants  at  sea.

In light of the above considerations, the study formulates the following policy recommendations  to  the  European Parliament:

Recommendation 1: The current EU legal framework should be reformed to i) bring it into full compliance with international, regional and EU human rights standards, in particular those related to the protection of smuggled migrants; ii) provide for a mandatory exemption from criminalisation for ‘humanitarian assistance’ in cases of entry, transit and residence; and iii) use the financial gain element and include standards on aggravating circumstances in light of the UN Smuggling Protocol. Clarity and  legal   certainty should  be  the  key guiding  principles  of  this  legislative reform.

Recommendation 2: Member States should be obliged to put in place adequate systems to monitor and independently evaluate the enforcement of the Facilitators’ Package, and allow for quantitative and qualitative assessment of its implementation when  it  comes to the number  of  prosecutions  and convictions, as  well   as  their effects.

 

Recommendation 3: EU funding should be made available for cities and civil society organisations to address the human rights, destitution and humanitarian needs of irregular migrants.

Recommendation 4: Firewall protections should be enshrined for irregular migrants to allow them to report human rights abuses and access public services without fear that they  will  immediately  be  reported  to  immigration  authorities.

Continue ...

 

EU-US “Umbrella agreement”on data protection: an interesting analysis of the US Congressional research service.

NOTA BENE : this blog has already published a detailed analysis of Professor DOUWE KORFF of the envisaged EU-US Umbrella agreement on data protection as well as a comment by Professor Peter SCHAAR a summary of important contributions for the European Parliament Civil Liberties Committee (LIBE) written by Professor Francesca Bignami and other researchers on the same subject. Following these contributions the EP committee has required a formal opinion to the EP legal service and that opinion will probably presented in the coming weeks. In the meantime it could be worth reading the Congressional Research Service document below which is notably focused on the limited scope of protection for the EU citizens even in case of adoption by the US Congress of the Judicial Redress act.

EDC

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INTERNAL NOTE CRS Reports & Analysis – Legal Sidebar

Judicial Redress Act 101 – What to Know as Senate Contemplates Passing New Privacy Law 01/21/2016  Update: The Senate Judiciary Committee delayed the markup on S. 1600, the Judicial Redress Act, previously scheduled for January 21, 2016.

Reports indicate that the Senate may soon vote on the Judicial Redress Act (JRA), a bill that could have major implications on transatlantic data flows and the global economy. The House of Representatives passed the JRA (H.R. 1428) in October (for the House Report on the JRA, see here), and the Senate is currently considering an identical version of the JRA (S. 1600). To understand why the JRA is important, it’s first worth discussing the underlying legislation that the JRA would amend: the Privacy Act of 1974.

The Privacy Act generally regulates how the federal government collects, uses, and discloses “records” – a term of art defined by the Act to refer to information possessed by a federal agency that contains individual identifying information. The Privacy Act provides for civil remedies by private parties to help enforce its provisions in four situations:

  1. when an agency refuses to amend an individual’s record;
  2. when an agency refuses to provide access to an individual’s record;
  3. when an agency has failed to maintain certain records in an accurate, relevant, timely, and complete manner,

resulting in an “adverse effect” on an individual; and

  1. when an agency fails to comply with “any other provision” of the Act or rule promulgated pursuant thereunder resulting in an “adverse effect” on the individual.

The Privacy Act as currently written is limited to the records of an “individual,” a term the Act defines as a “citizen of the United States or an alien lawfully admitted for permanent residence.” As a result, a foreign national who is not lawfully admitted for permanent residence and believes a federal agency is failing to comply with the Privacy Act with respect to his record currently has no judicial recourse under the 1974 law.

The JRA generally would amend the Privacy Act to expand the number of eligible Privacy Act plaintiffs under certain, narrow circumstances to a limited group of foreign nationals. The JRA would not allow every foreign national to obtain civil relief under the Privacy Act; instead the JRA would expand the Act to cover foreign nationals from countries specifically designated by the Attorney General because of formal or informal information sharing arrangements respecting transnational crime. Moreover, even if a foreign national is from a designated country, not all four categories of Privacy Act civil actions are made available by the JRA; instead the proposed legislation would allow foreign nationals to proceed under categories (1) or (2) only if the information at issue was possessed by a designated federal agency that receives information from the foreign national’s home country because of a formal or informal information sharing agreement between the United States and the home country. In addition, the JRA would allow a covered foreign national to pursue one specific cause of action under category (4)—the JRA would allow a plaintiff to recover actual damages if a plaintiff can prove that a federal agency has intentionally or willfully disclosed a covered record without written consent. Finally, the JRA does not allow a covered foreign national to pursue claims with respect to any record; instead the bill would only cover records that have been transferred by an entity within the foreign national’s home country for the purpose of “preventing, investigating, detecting, or prosecuting criminal offenses.”

Attention has centered on the JRA following a major ruling by the European Court of Justice of the European Union (CJEU) invalidating the U.S.-E.U. Safe Harbor Agreement, which generally permitted companies to transfer personal data from the E.U. to the U.S.

The decision centered on an interpretation of the E.U.’s 1995 Data Protection Directive (Directive) which requires member states to establish privacy laws that would bar the transfer of personal data to non-E.U. countries that fail to provide an “adequate” level of privacy protections. The Directive permits the European Commission (EC), an executive body within the E.U., to make general determinations regarding whether other countries offer the needed level of protection in their domestic laws or international commitments. To ensure compliance with the Directive, in the late 1990s, the Department of Commerce and the EC negotiated the Safe Harbor agreement which permits an American company to receive E.U. citizens’ data if it meets certain privacy principles. In order to join the Safe Harbor, a U.S. company typically must self-certify to the Department of Commerce that it will abide by the Safe Harbor principles. Companies that do so were formerly assumed to meet the Directive’s adequacy standard for privacy protection. The EC approved the Safe Harbor agreement in 2000.

On October 6, 2015 the CJEU invalidated the 2000 EC decision approving the Safe Harbor agreement. The Court first determined that even when the EC has concluded that a non-E.U. country has adopted procedures satisfying the adequacy requirements of the Directive, the EC’s determination does not prohibit individual E.U. countries’ data authorities from examining claims that that country nonetheless is failing to provide an adequate level of protection of personal data. Second, the CJEU, interpreting the adequacy standard to necessitate that a non-EU country receiving E.U. data have privacy laws that are the functional equivalent to those in the E.U., raised several concerns about the Safe Harbor agreement, including recent disclosures about the U.S. government’s surveillance activities and the lack of judicial redress in U.S. courts for European citizens’ whose data has been collected by the government. Ultimately, the CJEU found that the EC’s decision approving Safe Harbor did not comply with the Directive because the Commission did not determine whether the United States ensures an adequate level of protection for personal data. While supporters of the JRA hope that providing legal redress in U.S. courts for European citizens whose data is collected by U.S. companies may be a step toward providing the adequate privacy standards required by E.U. law, the question remains whether the JRA, which is focused on providing a limited number of foreign nationals a cause of action under the Privacy Act for information transferred with respect to transatlantic criminal investigations, would satisfy the CJEU’s broader concerns about United States privacy law. (EMPHASIS ADDED)

In addition to the Safe Harbor agreement, the JRA is seen as integral to ongoing negotiations between the United States and Europe concerning data transfers in the context of law enforcement investigations. To that end, the parties have been negotiating the so-called “Umbrella Agreement,” which will regulate all personal data exchanged between the United States and the European Union for the purposes of “prevention, investigation, detection, or prosecution of criminal offenses, including terrorism.”

A critical issue for the E.U. in these negotiations has been access to judicial redress in U.S. courts for European citizens, a provision that was included in the recently released draft agreement. However, it appears that the agreement will not be signed and formalized unless the United States enacts the JRA or a functional equivalent.

Currently, requests and transfers of data between the United States and the member-states of the European Union for purposes of law enforcement investigations are primarily governed by Mutual Legal Assistance Treaties (MLATs) or letters rogatory.

Additionally, various other international agreements, such as the Terrorist Finance Tracking Program (TFTP) and the Passenger Name Record (PNR) Agreement, regulate the request and transfer of data between the United States and Europe in the context of law enforcement investigations. The Umbrella Agreement, which is intended to “supplement” but “not replace” these existing international agreements, would create rules governing, among other things, the purpose and use of collected data; transfers to third-party countries; security measures to protect destruction, loss, or disclosure of data; notification of security breaches; and administrative and judicial redress.

(For a more detailed discussion and analysis of the CJEU Safe Harbor decision and the JRA, CRS has published a general congressional distribution memorandum that is available upon request).

The German Constitutional Court and the European Arrest Warrant: The latest twist in the judicial dialogue

*Reblogged from the ‘Despite our Differences’ (Wednesday, 27 January 2016)

by Daniel Sarmiento, *

The German Constitutional Court (GCC) has fired again, and now in the always sensitive area of fundamental rights. In an Order published yesterday, the GCC has undertaken an “identity control” over the implementation of a European Arrest Warrant (EAW) issued by Italian authorities and intended to be executed in Germany. The person concerned, a US national convicted in Italy in absentia, claimed that his conviction had been ruled without any guarantees, and now, under Italian law, nothing can stop the enforcement of his conviction. Italian procedural law does not provide a remedy at this point.

The GCC has applied, for the first time, its “identity control” to a case fully covered by EU Law. Therefore, the review by the GCC of the challenged judgment, which implemented the Framework Decision and the German implementing act, entailed an indirect review of the Framework Decision itself. The GCC reminds the reader of its traditional case-law on “identity control” and comes to the conclusion that in this particular case it is perfectly possible to do it. In the end, it quashes the decision of the instance court but it states that the Framework Decision and the German implementing act are perfectly in line with the solution it comes to.

I completely agree.

The trial in absentia that took place in Italy was clearly in breach of Convention (ECHR) rights, because the accused had not been informed of the date of the hearing, he was not represented by a lawyer, etc… In other words, the trial was a mess. This contrasts with the facts in the case of Melloni, in which the CJEUruled that the Spanish Constitutional Court could not apply the higher standards of its national constitutional law in order to block the execution of an EAW issued by Italy. On that case, Mr. Melloni had been sentenced in absentia but scrupulously following the minimal conditions required by the Convention. The case before the GCC is a good example of how not to handle a trial in absentia. Therefore the Framework Decision entitles Member States to refuse the enforcement of decisions enacted under such terms.

Therefore, what is the fuss? Why has the GCC made an “identity control” when the Framework Decision solves the case anyway in the same terms?

It seems as if the GCC is sending a message to Luxembourg: it is not willing to buy the Melloni case-law. Therefore, the Court of Justice’s approach in that case to Article 53 of the Charter, which imposes Charter levels of protection in cases totally determined by EU Law (i.e., with no discretion for Member States), is not going to be an easy ride. The GCC is clearly stating that it will undergo “identity control” in any case covered by EU Law, including in areas totally determined by European rules that lower the levels of protection enshrined under national law.

Therefore, it is a harmless judgment on the facts, but a very important one on the symbolic side. In fact, the decision is perfectly in line with the decision of the Spanish Constitutional Court in Melloni, in which the Spanish court decided to lower the domestic level of protection of the right to a fair trial, but not on the grounds of EU Law. The Spanish court highlighted that the judgment of the Court of Justice in Melloni was “a very useful reference”, but not a binding decision. In the end, the Spanish court followed the Luxembourg criteria, but on the sole grounds of the Spanish Constitution. Now the GCC is saying pretty much the same thing, but through the sophisticated means of “identity control”.

This is an unsurprising turn of events. Constitutional Courts have been protagonists of the fundamental rights narrative for more than half a century in Europe. In the case of Germany, Spain, Portugal or Italy, Constitutional Courts have been the guardians of human rights in States with a dubious past track-record in this matter. These are therefore powerful and relevant courts with an important tradition, and they are not willing to step back. European integration is side-lining them, but the events taking place in Europe (and everywhere in the world) are so serious that Constitutional courts feel a duty to keep acting as guardians. This attitude might be interpreted as a sign of nationalism, but it can also be the confirmation of the importance of the issues being now handled by the EU: data protection, the fight against terrorism, immigration, the euro and financial assistance of Member States, etc… Why would these courts decide to become irrelevant now, at a time in which the challenges ahead are as relevant or even more important than those they have faced in the past?

In my opinion, this should not be a cause of concern, but only as long as the Court of Justice handles the situation with care and intelligence. It did a good job in the OMT case (discussed here), but it is obvious that the area of fundamental rights is a thorny one that poses many challenges. Akerberg Fransson andMelloni were a brave but risky start, shortly followed by some cautious decisions. However, Opinion 2/13 and the inability of the Court of Justice to adjust to a future ECHR accession of the EU, including Strasbourg external control, is a damaging and clumsy move that has only made Constitutional courts frown. If they are subject to Strasbourg control, why can’t the Court of Justice accept it too? Many Constitutional Courts are perfectly entitled to think “what are they scared of in Luxembourg?”.

It will not be easy for the Court of Justice to come out of the situation created byOpinion 2/13. However, the Charter is still a very valuable instrument, a source of endless inspiration that could help the Court seduce national Constitutional Courts in the years to come. Also, the current events taking place in Poland are another good opportunity for the Court of Justice to prove how far it is willing to go in assisting national Constitutional courts that come under attack. The current situation is a difficult one, but the Court of Justice has the authority, prestige and background needed to face the challenge.

The GCC has fired once again, but it would be a very reductionist reaction to simply say that it is a mindless and nationalistic claim from Karlsruhe. On the contrary, this is yet another reminder for the Court of Justice of the importance of fundamental rights, and of the importance of its role as interpreter of the Charter. In other words, this is another opportunity for the Court of Justice to forget that phrase so frequently used by its judges in public lectures, according to which “we are not a fundamental rights court”. Whether they like it or not, they have become one. The longer they stubbornly resist this reality, the more painful the awakening will be.

  • Professor of EU Law at the University Complutense of Madrid*

Can Member States seize asylum-seekers’ assets?

Original published on EU LAW ANALYSIS (Sunday, 24 January 2016)

by Kees Groenendijk (Professor Emeritus, Radboud University Nijmegen) and Steve Peers

In recent days, several EU and non-EU countries have been in the news for taking asylum-seekers’ assets upon arrival. Is this compatible with EU law? We examine first of all national practice, then the legislative history of the relevant EU rules, then reach our conclusions.  

Denmark

In November 2015 the Danish government presented among a catalogue of 34 measures to discourage people from seeking asylum in Denmark, to introduce the possibility to confiscate cash, jewellery and other assets of asylum seekers in other to make them contribute in the costs of their reception. They proposal caused heated debate after a Minister suggested that wedding rings could be also confiscated. In January the Social-Democratic Party voiced that it would only support this proposal of the centre-right minority government, only assets above 1,340 euro could be confiscated. The new law is to be voted on 26 January.

Similar practices or rules are to be found in the national law of other Member States.

Switzerland, only few asylum seekers concerned

According to Dutch newspapers, Swiss legislation requires asylum seekers who enter the country with more than 1,000 Swiss francs have report and hand over the surplus to the Swiss authorities. The rule only covers money, not other valuables such as personal jewellery. Of the 45,000 asylum seekers coming to Switzerland in 2015, only 112 had to hand in a surplus, totalling around € 150,000 that year. Not really an impressive amount. Most asylum seekers, apparently, do not carry large amounts of money, once they arrive in Western Europe. Besides, under Swiss law beneficiaries of protection with income from employment, have to pay 10% of that income to contribute to reception costs during ten years.

Germany, an old practice?

The German legislation on reception of asylum seekers, theAsylbewerberleistungsgesetz, provides, already many decades that asylum seekers can be forced to contribute from their own assets and income to the cost of their reception. Asylum seekers have to declare their assets and income. The rules for applicant for public social assistance are applicable. From the assets only 200 euro and the goods necessary for exercising a profession or employment are exempted (§ 7(5) of the law). According to newspaper reports the actual application of the law may differ considerably between the Länder. In certain Länder or cities the police may search the luggage of asylum seekers in other places asylum seekers may just be asked to report about their assets.

Netherlands, only contributions from income not from assets

The Junior Minister for Immigration recently told the press that that he was not going to follow the Danish and German example and force asylum seekers to hand over small amounts of cash and jewellery. His spokesman explained this is not on the agenda right now, since we do not expect that it will reduce the influx.” (Volkrant 23 January 2016)Already for decades asylum seekers in the Netherlands if lawfully employed (only possible after six months and until an asylum status is acquired for 24 weeks per year only) have to pay the surplus above 185 euro of his monthly income as a contribution in reception costs.

Compatible with EU law?

Are such rules and practices on seizure of assets in order to contribute in reception costs compatible with EU law, and especially with the Reception Conditions Directive2013/33? We do not deal here with the question whether such confiscation of valuables and jewellery is compatible with Article 1 of the First Protocol and Article 8 ECHR.

The relevant provisions are to be found in Article 17(3) and (4) of the 2013 recast Reception Conditions Directive, reading:

“3.   Member States may make the provision of all or some of the material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence.

  1. Member States may require applicants to cover or contribute to the cost of the material reception conditions and of the health care provided for in this Directive, pursuant to the provision of paragraph 3, if the applicants have sufficient resources, for example if they have been working for a reasonable period of time.

If it transpires that an applicant had sufficient means to cover material reception conditions and health care at the time when those basic needs were being covered, Member States may ask the applicant for a refund.”

Identical provisions were already present in Article 13(3) and (4) of the originalReception Conditions Directive 2003/9. They returned unchanged in the 2013 recast of the Directive. In order to understand those provisions it may be useful to have a short look at their legislative history. The various drafts are set out in more detail in the Annex, but we will summarise them here.

Legislative history of EU rules on financial contributions by asylum seekers

The Commission in its proposal for the original 2003 Directive (COM(2001)181) inserted an Article 19 on financial contributions. Member States could require applicants who can afford to do so to contribute to the cost of their material reception conditions. The relevant decisions should be taken individually, objectively and impartially and reasons shall be given. An effective judicial remedy against such decisions should be available, making explicit reference to Article 47 EU Charter.

During the first negotiations on this Article reaction eight Member States made proposals for amendments. Six Member States proposed to refer to “the general principle of the real need of the applicant, which would lead to entitlement to material benefits” (document 11320/01, p. 33). Germany proposed that “some of the applicant’s income should be protected in all cases”. That proposal only covered the asylum seeker’s income. But it implied that all the income above a certain threshold could be seized by a Member State. The Netherlands made a similar proposal linking the asylum seeker’s contribution to his income: “if the applicant has a certain income, a contribution may be asked of him to cover some or all of the costs”. Both proposals intended to regulate a possibly contribution in reception costs, but did not include the asylum seekers’ assets as an object of seizure.

In January 2002 the text of Article 19 was consolidated with two other Articles in a new Article 18, entitled ‘Financial means test’ (document 5300/02). The Dutch proposal, concerning contribution out of income from employment was included. The German proposal, implying that a Member State could seize all income above a certain fixed threshold, did not find its way in this and later versions of provisions on financial contributions by asylum seekers. During the negotiations in February 2002 this Article was considerably shortened (a.o. replacing the general means test by the condition that the applicants do not have sufficient means to cover their basic needs, and deleting the reference to income from employment) and it was renumbered Article 17 (document 6253/02). Only three Member States made suggestions: Portugal and Greece pleaded for more reduction of the reception conditions, once an asylum seeker or his family member had been allowed access to the labour market. Germany proposed to integrate Article 17 in the general Article on material reception conditions.

Early March 2002, the Asylum Working Party examined the amended proposal based on drafting suggestions from the Spanish Presidency (document 6906/02). Parts of the former Article 17 were now included in Article 13, apparently following German suggestion.

In April 2002 on suggestion of Germany the words “and health care” were added in par. 3 of Article 13. Moreover, the words “for example if they have been working for a reasonable period of time” were added in par. 4, re-introducing an explicit link with participation in the labour market again (document 7802/02). This version of Article 13 of the amended proposal was accepted by Coreper and by the Council in 2002 and became part of the Directive adopted with unanimity on 27 January 2003.

In addition, the 2013 recast Directive now states that Member States can refuse or withdraw benefits if asylum-seekers have ‘concealed financial resources’ (Article 20 of the 2013 Directive). The CJEU, in its CIMADE and GISTI judgment, has ruled that Article 20 sets out an exhaustive list of grounds for reducing or withdrawing benefits.

Analysis

If this legislative history is combined with the general principles of EU law and the EU Charter, we conclude:

(1) The issue of financial contributions by asylum seekers in material reception costs from their own means was been discussed repeatedly during the negotiations on the Directive.

(2) This issue was discussed repeatedly also in relation to the access of asylum seekers to the labour market in the Member State and the income derived from such employment.

(3) The Directive allows Member States to impose a means test for access to material reception conditions, but this does not entail confiscation of assets.

(4) Since (a) the issue of financial contributions by asylum seekers in material reception costs is covered by the directive and (b) the Directive sets out minimum standards in order to avoid second movements between Member State (recitals 7 and 8), Member States are not allowed to apply less favourable rules only more favourable rules (see recital 15); the Court of Justice repeatedly held that Member States cannot introduce other conditions than those provided for in the EU Directive or Regulation, see the judgments in Ben Alaya, Koushkaki and Air Baltic. Also, by analogy with the CIMADE and GISTI ruling, the grounds in the Directive to refuse or regulate access to benefits are surely exhaustive.

(5) Article 13(3) allows Member States to make the grant of material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence. It follows that such decision to exclude an asylum seeker from material reception conditions can only be made after the Member State first has established that applicants have sufficient means to have a standard of living adequate for their health and to enable their subsistence in the Member State. In accordance with the general principle of proportionality in EU law, it is questionable whether a Member State could refuse any access to the benefits system, just because an asylum-seeker has a small amount of cash or valuables. Access should only be refused where the applicant either has an ongoing alternative source of funds, or the asylum-seeker has so much wealth that he or she could live off it for a considerable period of time.

(6) Article 13(4) allows Member States to require applicants to contribute to the cost of the material reception conditions and of the health care, when the applicants have sufficient resources. The conditions of paragraph 3 explicitly apply here as well. The Commission with regard to Article 19 of its proposal rightly stated: “Decisions on applicants’ contribution should be taken individually, objectively and impartially and reasons must be given if they are negative in order to make possible their review as accurate as possible.”

While, in the final version of the Directive this clause applies to the reduction or withdrawal of benefits, not the obligation to contribute toward costs, the general principles of EU law still require that national administrative decisions linked to EU law must be fair (see the CJEU’s YS and M and S ruling on asylum procedures, discussedhere; and the Mukarubega and Boudjliba judgments on the return of irregular migrants, discussed here). This means that any decision on asylum-seekers’ contributions has to be an individual decision giving reasons, taking into consideration the individual situation of each asylum seeker.

Such decisions must also comply with other general principles of Union law, in particular the principle of proportionality, which means that any confiscation of property must be necessary to achieve a genuine government end. It is hard to see how it is necessary to confiscate property when a less severe measure (delaying or curtailing benefit payments by an equivalent amount, in accordance with the rules on a means test) could achieve the same objective. Again, the principle suggests that asylum-seekers should only be required to contribute where applicants either have an ongoingalternative source of funds, or have so much wealth that they could live off it for a considerable period of time.

It must also be possible to challenge any decision made by a national authority on confiscation, in accordance with Article 47 (the right to an effective remedy) of the EU Charter of Fundamental Rights.

(7) In conclusion: a national rule allowing authorities to confiscate all means of an asylum seeker above a fixed amount, irrespective of the individual circumstance on the grounds mentioned in point 4 and 6 above is not compatible with Union law.

(8) Of course, Denmark and Switzerland are not bound by the Directive, Denmark because of its opt-out and Switzerland because it is not a Member State. Ireland opted out as well. But all other Members State are bound by Directive 2013/33 and the UK is opted in and is bound by the original Reception Conditions Directive 2003/9.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo: Danish police officer and asylum-seeker

Photo credit: www.channelnewsasia.com

Annex

Legislative history of Article 13(3) and (4) of Directive 2003/9 = Article 17(3) and (4) of Directive 2013/33 on financial contributions by asylum seekers in reception costs

In the Commission’s proposal for the original 2003 Directive COM(2001)181 there was a separate Article 19 reading:

Article 19

Financial contribution

  1. Member States may require applicants who can afford to do so to contribute to the cost of

their material reception conditions or to cover it. Decisions to provide material reception conditions not free of charge shall be taken individually, objectively and impartially and reasons shall be given.

  1. Member States shall ensure that applicants have the right to bring proceedings before a court against the decisions referred to in paragraph 1 and that they have access to legal assistance.

The Explanatory Memorandum to this Article 19 read:

“This Article concerns the financial contribution applicants for asylum may be asked to provide if they are provided with material reception conditions.
(1) This paragraph allows Member States to require applicants who can afford it to contribute to the cost of their material reception conditions. The purpose is to meet the Council’s concern regarding the requirement of “inadequate” resources of the applicants for asylum. In any case Member States should ensure that applicants for asylum have the possibility of being housed as even applicants with sufficient financial means might find it impossible to find suitable housing. Decisions on applicants’ contribution should be taken individually, objectively and impartially and reasons must be given if they are negative in order to make possible their review as accurate as possible.

(2) In conformity with the Charter of fundamental rights (Article 47) and in line with the case law of the Court of Justice, this paragraph ensures that the decisions taken according to paragraph 1 can be reviewed by a judicial body (including an administrative judicial body such as the Conseil d’Etat in France) at least in the last instance.”

The first reaction of Member States on this Article was in document 11320/01, p. 33:
“D/E/NL/P/S and UK: reference should be made to the general principle of the real need of the applicant, which would lead to entitlement to material benefits.
D: some of the applicant’s income should be protected in all cases.
NL: stipulate that if the applicant has a certain income, a contribution may be asked of him to cover some or all of the costs.
D and UK: establish a general principle laying down that Member States may decide whether or not the applicant requires material benefits.
L and A: make provision for the case in which an applicant is invited to stay in the territory of a Member State by a national who, if applicable, has served as guarantor for the purpose of obtaining a tourist visa. In this case, it should be possible to call on the national to contribute to the costs.
A: reservation on the second sentence in that it creates an obligation to notify these decisions in writing.
3 A and S: reservation on the financial aspects of legal assistance.
D and UK: a general provision on forms of appeal at the beginning of the Directive should be sufficient.

In January 2002 the text of Article 19 was consolidated in a new Article 18, consolidating several provisions of the proposal (document 5300/02):

“Article 18 (consolidating Articles 14 bis, 15(4) and 19)
Financial means test

  1. Member States may make the grant of all or some of the material reception conditions,

as well as the requirement that applicants and their accompanying family memberscover or contribute to the cost thereof, subject to a financial means test of applicants andtheir accompanying family members in accordance with the provisions of this Article.

  1. Member States may also reduce or withdraw material reception conditions within a

reasonable period after applicants or their accompanying family members commence anemployment activity in accordance with Article 13, applying the test established inparagraph 1.

  1. Applicants and their accompanying family members may be subject to one or more of

the measures provided for in paragraphs 1 and 2 when it is confirmed that they havesufficient means.

  1. Decisions under this Article shall be taken individually, objectively and impartially and

reasons shall be given.”

In February 2002 this Article was considerably shortened (a.o. deleting the means test and the reference to income from employment) and renumbered as Article 17, reading together with the footnote by Member States and the Commission (document 6253/02):

“Article 17 (formerly 18)1
Financial means criteria

  1. Member States may make the grant of all or some of the material reception conditions subject to the condition that applicants do not have sufficient means to cover their basic needs.
  2. If it transpires that an applicant had sufficient means to cover these basic needs at the time

when material reception conditions were being provided, then Member States may ask these to refund.2

  1. Decisions under this Article shall be taken individually, objectively and impartially and

reasons shall be given. 3
1 D : this provision should be placed at the end of Article 15.

2 P, supported by EL, suggested adding the following :

“3. Member States may also reduce or withdraw material reception conditions within a reasonable period after applicants and their accompanying family members have been allowed access to the labour market in accordance with Article 13, applying the test established in paragraph 1.

  1. In the cases referred to in paragraph 3, if they are not financially independent, Member

States shall grant them the food allowance mentioned in Article 8 and access to basic social care.”

(present paragraph 3 would become 5).

3 Cion : reinsert a paragraph which was included in 12839/01 ASILE 49 (former Article 14A(6)) :

“Member States shall ensure that before the decisions referred to in paragraph 2 are notified to the applicants for asylum [and their accompanying family members] the other Articles of Chapter III of this Directive are applied”.

At its meeting on 5 and 6 March 2002, the Asylum Working Party examined the amended proposal based on drafting suggestions from the Spanish Presidency, document 6906/02. Parts of the former Article 17 were now included in Article 13, apparently following the suggestion made before by Germany with regard to that former Article 17.

Article 13

General rules1

  1. Member States shall ensure that material reception conditions are available to applicants when they make their application.
  2. Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health and the well-being of applicants.

Member States shall ensure that standard of living is met in the specific situation of persons who have special needs, in accordance with Article 17, as well as in relation to the situation of persons who are in detention.

  1. Member States may make the grant of all or some of the material reception conditions subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and well-being.2
  2. Member States may require applicants to cover or contribute to the cost of the material

reception conditions and of the health care provided for in this Directive, pursuant to the provision of paragraph 3, when the applicants have sufficient resources.

  1. Material reception conditions may be provided in kind, or in the form of financial allowances or vouchers or in a combination of these provisions.

Where Member States provide material reception conditions in the form of allowances or vouchers, their amount shall be set in accordance with the principles set for in this Article.

1 A : a general rule providing for exceptions to be applied by Member States in extraordinary situations should be introduced.

2 B, D, F and P : the term “well-being” is s too vague and should be defined.

NL, S, UK : say “to enable their subsistence” instead of “to have a standard of living adequate for their health and well-being”.

In April 2002 on suggestion of Germany the words “and health care” were added in par. 3. Besides the words “for example if they have been working for a reasonable period of time” were added in par. 4, introducing an explicit link with participation in the labour market again (document 7802/02).

This version of Article 13 of the amended proposal was accepted by Coreper and by the Council. It became part of the Directive adopted on 27 January 2003

VERBASSUNGSBLOG :A New Page in Protecting European Constitutional Values: How to best use the new EU Rule of Law Framework vis-a-vis Poland

by , , (*)
So 24 Jan 2016

The proceedings so far and the challenge ahead

On 13 January 2016, the European Commission announced its decision to further investigate whether the recent reforms of Poland’s Constitutional Tribunal and Public Service Broadcasters are consistent with the rule of law, a common value of the EU according to Article 2 TEU. On that day, the Commission held a ‘College Orientation Debate’ discussing these developments in light of previous correspondence with Poland. After this meeting, Commissioner Timmermans officially notified the Minister of Justice of Poland, Mr Ziobro, that from now on the Commission would consider the issue under the ‘EU Framework to strengthen the Rule of Law’ (Rule of Law Framework, Rechtsstaatlichkeitsaufsichtsverfahren). On 19 January the matter was lively discussed in the European Parliament, and a vivid public discussion started.

Many media reports focused on the possibility that this initiative might lead the EU to apply the sanctions of Article 7 TEU—often wrongly termed as “nuclear” effects. However, that is far beyond what is politically likely at the moment. The real issue is the deployment of the new Rule of Law Framework as a more conducive alternative, hopefully based on the support by European public opinion.

The Rule of Law Framework was set out by the Commission in the form of a communication to the European Parliament and the Councilin March 2014 as a “pre-Article 7” procedure. It does not foresee binding measures or sanctions, but rather provides for a structured succession of steps that have a double aim: to visibly investigate the possibility that the Commission proposes to the Council the activation of Article 7 TEU, and, in this way, to create a setting in which the Member State concerned mends the critical issues that threaten EU values. Being used now for the first time, it is highly important that the Framework is put on the right track.

In light of the Polish developments, three features of this Framework, which should be seen and developed as a new EU’s mechanism to protect European constitutional values, deserve particular attention. The first has to do with the scope of the Rule of Law Framework, the second with the notion of systemic threat, and the last with the challenge of operating the Framework in a cooperative, non-adversarial way.

“Thick” or “thin” rule of law?

At first sight, and as implied by its title, the new mechanism seems to be dedicated to the protection of only one of the values of Article 2 TEU, the rule of law. However, the Framework adopts a broad reading of the rule of law, citing as part of the rule of law not only ‘independent and impartial courts’, but also ‘effective judicial review including respect for fundamental rights’ and ‘a transparent, accountable, democratic and pluralistic process for enacting laws’. It appears thus that the Framework is also meant to protect fundamental rights and democracy.

This general orientation towards a “thick” rule-of-law concept is in principle reaffirmed in the decision to submit Poland to the Framework, which notes that ‘[t]he rule of law is … a constitutional principle with both formal and substantive components’. Nevertheless, when it comes to the actual reprimands against Polish reforms, priority is given to the formal dimension. In his letter of 13 January, Frans Timmermans makes Poland especially accountable for disregarding decisions of the Polish Constitutional Tribunal. Freedom and pluralism of the media, as questions of democracy and fundamental rights, do form part of the critique, but they take a back seat. It would be however unfortunate if the scope of the Framework is developed minimising other threats to the European constitutional order, such as democracy and human rights.

Respecting and Showing Respect to the EU’s Limited Role

Secondly, the Framework is aimed to counter “systemic” threats to the rule of law, not isolated breaches of fundamental rights or miscarriages of justice. The instrument is reserved for extreme cases that are ‘likely to systematically and adversely affect the integrity, stability or the proper functioning of the institutions and the safeguard mechanisms established at national level to secure the rule of law’. The Commission uses the term ‘systemic breakdown’ in its Communication. “Systemic” emerges thus as a new category of threats to EU values that lie above isolated incidents, but do not necessarily amount to “serious and persistent”, which is required for the activation of Article 7 TEU. The pre-Article 7 character of the Framework implies to avoid getting there, while respecting the EU’s subsidiary role according to the overall system of competences.

However, the Commission’s early steps do not address why the situation in Poland could amount to a “systemic” threat to EU values. The letter to Poland, formally announcing the activation of the Framework, makes no single reference to “systemic”. And Frans Timmermans, in his introductory remarks to the Discussion of the European Parliament, referred to this element by simply saying that ‘[g]iven the central position of the Constitutional Tribunal within the Polish judicial system, we risk seeing the emergence of a systemic threat to the Rule of Law.’ This treatment of the component of “systemic” is unsatisfactory for two reasons.

First, the general reference to “the central position of the Constitutional Tribunal” is too cursory to offer a reasoned justification why the reforms brought forward by Poland qualify as a systemic threat. Second, according to the clear wording of the Framework, a simple “risk” of the emergence of systemic threat is not sufficient to trigger its activation—the systemic character of the threat needs to be present and immediate. As we have shown elsewhere, the systemic component to the violation of the rule of law is indeed fundamental for the legality of the Framework, since it demarcates the scope of action between the EU and Member States under Article 2 TEU. Moreover, if the Commission’s activity is to induce any government to reconsider its policy, it needs to rely on European public opinion—and to mobilize European public opinion, the Commission must indicate the systemic nature of the threat to common values. In our previous work, we shaped this general term using theoretical and comparative considerations. The Commission should do more to clarify its understanding of the concept—not least because this is required by the rule of law to which also the Commission is subject: any rule application needs to be reasoned, in particular in such sensitive issues.

Reasons for a “Systemic Deficiency Committee”

The third characteristic of the new Framework is the Commission positioning itself as the key institution. It is the Commission that sends to the Member State concerned a ‘rule of law opinion’, it is the Commission that engages with it in a dialogue with a view to remedying the problem. If that does not lead to a satisfactory resolution, it is again the Commission that proceeds to the second stage and addresses to the Member State concerned a ‘rule of law recommendation’. It is the Commission, in this recommendation, that sets a fixed time limit and even includes specific indications on appropriate measures. It is the Commission that, if the Member State does not adequately respond to these concerns, will ‘assess the possibility of activating one of the mechanisms set out in Article 7 TEU’. It is the Commission to deploy the naming-and-shaming mechanism, by publishing both the sending of the recommendation and its main content.

This has triggered strong reactions. Hungary and Poland see action under the Framework outside the competences of the EU and the Commission. The Legal Service of the Council has also submitted that the Framework is incompatible with the principle of conferral. It has even ‘officially’ leaked this opinion, which is highly unusual. According to its view, the mechanisms of Article 7 TEU set out the exclusive procedures for protecting EU values.

This is not convincing. The Framework clarifies and makes transparent how the Commission proceeds before submitting a proposal under Article 7. It has the role of prior administrative clarifications that indicate how the Commission will exercise the competence it clearly wields from Article 7 TEU. The Framework foresees no legal sanctions: publishing letters, opinions and recommendations, even if they amount to ‘naming and shaming’, do not require a specific competence. For any legal act, the final word is reserved for the Council and the European Council following the steps set out in Article 7 TEU, including the procedural guarantees for the Member State concerned.

Yet, the Commission, an ever more political institution, needs to be non-partisan in such proceedings and employ the Framework in a cooperative way. One consequence of the current proceedings was a counter-coalition of a broad spectrum of Eurosceptics that see it as a political manoeuvre. To counter such claims, we suggest a “Systemic Deficiency Committee” operating as an independent body within the Commission, building on the proposal of a Copenhagen Commissionand supported by the European Parliament. Such a Committee would alleviate allegations of bias or partisanship from the side of the Commission, provided that its membership has a strong standing in the public sphere. Different to the proposed Copenhagen Commission, however, we suggest embedding such Committee in the current framework.

Outlook

In sum, the application of the Framework in the current Polish case is a step in the right direction. It seems a good instance to develop the Framework as an EU mechanism to protect European constitutional values in a European legal space which is rife with constitutional crises, but short of instruments to address them. Its pertinence appears even more clearly in comparison to the Council’s (in)activity under its own rule-of-law mechanism, hastily put forward after the Commission’s Framework. The activation of the Framework has shown its potential to mobilize European public opinion and orient public discourses to the current condition of EU values. Major EU newspapers have taken up the issue, informed commentary is being produced, and the European Parliament had a promising debate on the issue. Of course, the Framework provides no silver bullet. It will require great political skill to make it a success.

 

(*)  Armin von Bogdandy ist Professor für Öffentliches Recht und Völkerrecht an der Universität Heidelberg und Direktor des Max-Planck-Instituts für ausländisches öffentliches Recht und Völkerrecht in Heidelberg.  

Carlino Antpöhler ist Wissenschaftlicher Mitarbeiter am Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg. 

Michael Ioannidis, LL.M. (Cambridge), ist Referent am Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht in Heidelberg. 

 

SUGGESTED CITATION  von Bogdandy, Armin, Antpöhler, Carlino; Ioannidis, Michael: A New Page in Protecting European Constitutional Values: How to best use the new EU Rule of Law Framework vis-a-vis Poland, VerfBlog, 2016/1/24, http://verfassungsblog.de/a-new-page-in-protecting-european-constitutional-values-how-to-best-use-the-new-eu-rule-of-law-framework-vis-a-vis-poland/

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The European Social Charter in the context of implementation of the EU Charter of Fundamental Rights

EXECUTIVE SUMMARY OF A STUDY FOR THE CONSTITUTIONAL AFFAIRS COMMITTEE OF THE EUROPEAN PARLIAMENT (FULL VERSION AVAILABLE HERE )

by Olivier DE SCHUTTER

The European Social Charter, initially adopted in 1961 within the framework of the Council of Europe as the counterpart to the European Convention on Human Rights, has gained increased relevance and visibility since its ‘revitalization’ in the 1990s, particularly with the entry into force of the Additional Protocol on Collective Complaints in 1998 which, by the end of 2015, 14 EU Member States had accepted. The interactions with the EU have also become more common: EU secondary legislation inspired a number of provisions that were included in the 1988 Additional Protocol to the European Social Charter and in the 1996 Revised European Social Charter, which updated and extended the list of guarantees included in the original instrument; moreover, the European Committee of Social Rights (ECSR), the expert body tasked with supervising compliance with the European Social Charter, routinely is led to assess whether national measures implementing EU law comply with  the requirements  of the  European  Social  Charter.

It is therefore surprising that even the more recent developments concerning the protection of fundamental rights in the EU legal order have largely ignored the European Social Charter. Although the European Social Charter is referred to in the EU treaties, the Convention which drafted the EU Charter of Fundamental Rights in 1999-2000 borrowed only selectively from the Council of Europe Social Charter as a source of inspiration for its social provisions. The impact assessments accompanying legislative proposals of the European Commission, although they refer to the EU Charter of Fundamental Rights since 2005, do not refer directly to the European Social Charter. The Court of Justice of the European Union has not compensated for this: although it has occasionally referred to the European Social Charter as providing guidance for the interpretation of EU law, it has until now refused to align the European Social Charter with that of the European Convention on Human Rights as a source of inspiration for the development of fundamental rights as general principles of law that it ensures respect for, in accordance with Article 6(3) of the EU  Treaty.

This is unsustainable. The current lack of coordination creates the risk of conflicting obligations imposed on the EU Member States, respectively as members of the EU and as States parties to the European Social Charter: for instance, the ECSR found the legislative reforms introduced by Sweden in order to comply with the 2007 Laval decision of the Court of Justice to be in violation with the requirements of the European Social Charter. The failure to take into account the European Social Charter is also the source of tensions that result from the prescriptions addressed to the Euro Area Member States, under the European semester or for Euro Area Member States under financial assistance: thus, the ECSR has found that a number of measures adopted by Greece following the bailouts of 2010 and 2012 were in violation of that country’s undertakings under the European Social Charter.

In order to move beyond the current impasse, four options are explored. First, the Court of Justice could acknowledge more explicitly the role of the European Social Charter in the development of fundamental rights in the EU legal order. At a minimum, it could do so by interepreting the provisions of the EU Charter of Fundamental Rights that correspond to rights of the European Social Charter in accordance with the interpretation given to this latter instrument by the European Committee of Social Rights, which is specifically tasked with the task of assessing from a legal viewpoint the legislation and policies of the States parties. In addition however, the Court of Justice could seek inspiration from the Charter to develop   the   fundamental   rights   that   are   included   among   the   general   principles   of   EU   law, thus aligning the status of the European Social Charter with that of the European Convention on Human Rights. As the Court itself has acknowledged, the European Social Charter has been ratified by all EU Member States (whether in its original version of 1961 or in its revised form of 1996), and thus provides a particularly authoritative list of social rights that  are  consensual   across  the  EU-28.

Second, the European Social Charter could play a greater role in impact assessments accompanying the legislative proposals of the European Commission: such impact assessments could include explicit references to the European Social Charter in the guidelines for impact assessments of legislative proposals prepared by the European Commission. This would go a long way towards ensuring that EU law shall develop in a way that is fully consistent with the obligations of the member States in international law, thus reducing the risk that they may be faced with conflicting international obligations. It would also fulfil the mandate of the Treaty on the Functioning of the European Union, which commits the EU to ‘take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health’ in defining  and implementing  its policies  and  activities  (art. 9  TFEU).

Third, the EU Member States could be encouraged to align the range of their undertakings under the European Social Charter, in order to improve the uniform application of EU law. For the moment, the à la carte system of the European Social Charter results in a situation in which the undertakings of the EU Member States under the Charter remain highly uneven, as they have not all accepted to be bound by the same provisions of the Charter. The European Commission could list the provisions that are most closely connected with EU secondary legislation, and which, if accepted by all EU Member States, would strengthen the  effectiveness and the  uniform  application  of EU law.

Finally, the process of accession of the EU to the European Social Charter could be initiated. Such accession has been envisaged on various occasions, ever since the “Spinelli” Treaty on the European Union of 1984, and the European Parliament has unequivocally expressed itself in favor. Considering the large number of areas covered by the European Social Charter in which the EU has been attributed certain powers by the Member States, as well as the potential for further legislative instruments to be adopted in these areas, the EU could accede to the European Social Charter on the basis of Article 216(1) TFEU: the relationship of the EU to this instrument would be very similar to that it has developed with the UN Convention on the Rights of Persons with Disabilities, which the EU acceded to in 2009. Moreover, the objections raised by the Court of Justice of the European Union in Opinion 2/13 concerning the accession of the Union to the European Convention on Human Rights would not apply to the accession to the European Social Charter, at least if such accession does not extend to the Union joining the mechanism provided for by the Additional Protocol on Collective Complaints. Even if it were envisaged to allow the Union to join that Protocol, many of the concerns raised by the Court of Justice in Opinion 2/13, concerning the autonomy and the specific characteristics of EU law, either would not apply at all (due to the differences between the control mechanism established by the ECHR and the collective complaints mechanism), or could be met by the insertion of appropriate stipulations in the agreement providing for the accession of the Union to the European Social  Charter. ….(continue here)