Sunday 31 January 2016

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

Steve Peers, Professor of Law, University of Essex

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.

Barnard & Peers: chapter 13
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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


  1. I don't agree with this post . The emergency brake -as requested by UK- is against the Treaty.
    Exceptions to the fundamental principles of the EU treaties (such as non discrimination on ground of nationality and free movement of workers) must be restrictedly -not extensively. interpreted.
    All the examples mentioned in this post apply to different situations and cannot be extended "by analogy" in order to justify a general derogation. We aren't speaking of the veto in EU social legislation (which by the way could always be used against any secondary legislation act softening the duties of Member States). And obviously, this isn't neither war, nor the case for the derogations allowed by the Treaty,such as public policy or public health (see the relevant case-law of ECJ). The ECJ could may be acknowledge mandatory requirements, but this would be a case by case ex post justification ,not an airport discretionary power endowed to a Member State with no control of the Commission.
    No new general derogation could be established without an amendment of the treaties which must be accepted by all the Member States (even acting by special revision procedure).
    And what about the principle of equality od Member States affirmed by art.4 TEU?
    Finally, UK must also realize that if EU would go this way, other Member States could ask to introduce an emergency brake on free movement of capitals...

    1. But this post isn't about the *substance* of the emergency brake, and whether or not that would need a Treaty amendment. That's hard to judge until we see the text of what is proposed. It's only about the *procedural* issue of whether the current Treaty requires that the brake would have to be 'pulled' by the EU institutions, or could instead be pulled by the UK. If there has to be a Treaty amendment, this could of course have its own rule on how the brake is pulled. The CJEU has been willing to accept that free movement discrimination is allowed, in the judgment of the Member State (subject to judicial review) if there is a threat to public health in exceptional situations (Bressol); the question is whether that might possibly extend further, and whether (rather implausibly, perhaps) the current situation in the UK constitutes such a case.

      The intention is to offer the brake to all Member States, so no issue of equality of Member States arises. So far there is no report of other Member States asking for an emergency brake on free movement of capital.

  2. I have been issued a Schengen Visa and it states Family member of an EU Citizen. We are planing to move to our host state next month to start our SS journey. Would the changes affect us in any way in host country or the UK?

    1. I can't comment on individual cases. In general, the position depends on the timing. The change to EU law regarding prior lawful entry in the host Member State would not for some months at the earliest. But it is possible (a) that the UK would then claim that there was no prior lawful entry as a barrier to return; and (b) that the UK would also claim that there was an attempt to evade national immigration law, based on the planned Commission guidance. Hard to be sure until we have the wording of the law and the guidance.

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