Tuesday, 26 April 2016

Keeping up with the (Turkish) family: integration requirements for family reunification in Genc

Silvia Adamo, Postdoctoral Fellow, bEUcitizen – Barriers to European Citizenship/Faculty of Law, University of Copenhagen

What are the legitimate expectations regarding integration before family reunion in a Member State, and what is the position of Turkish citizens in that equation? The EU Directive on family reunion for third-country nationals gives Member States an option to impose such integration requirements before entry of the family members, and the CJEU dealt with the limits to the discretion of Member States in imposing such requirements in a 2015 judgment (K and A, discussed here). Moreover, in the Dogan judgment of 2014 (discussed here), the Court assessed the reach of the standstill clause in the protocol to the Association Agreement between EU and Turkey in relation to the conditions for family reunification for self-employed Turkish nationals. There’s an important distinction between the two legal instruments: all Member States are bound by the EU/Turkey association agreement, whereas the UK, Ireland and Denmark opted out of the family reunion Directive.

In that context, the Dogan case attracted the attention of the Danish Ministry of Justice. After all, Turkish nationals are the largest immigrant group in the country, and the issue of family life with a third country national in Denmark is very controversial. In a legal note commenting on the case shortly after the judgment in Dogan, the Ministry found that the national rules on family reunification (significantly restricted since 2002) could be evaluated as constituting new and more stringent conditions that are not allowed to be introduced for Turkish nationals, in light of the standstill clause. (Note that the protocol to the association agreement has applied since 1973 for the first nine Member States – such as Denmark and the UK – but at the date of accession for the 19 Member States which joined the EU later). At the same time the Ministry did not advise to amend them. Instead, it assessed that there were ‘doubts’ as regards the reach of the restriction test, including the proportionality test, for the manifold requirements for family reunification in Denmark. One of the requirements to fulfil for family reunification is that of potential for successful integration (for the child) and of achieved integration (for the sponsor parent).

The question that has now found its way to the courtroom is the following: Can a Member State require Turkish children to fulfil a successful integration evaluation, before granting them family reunification with their economically active parent? The CJEU recently answered this question in the Genc case. Its judgment is relevant to family reunion with Turkish nationals in all Member States – and would apply by analogy to other forms of new restrictions on family reunion with Turkish citizens besides integration requirements.


Mr. Genc is a Turkish national born in 1991. His father moved to Denmark in 1997 and obtained a permanent residence permit there in 2001. After the divorce of his parents, his father had obtained legal custody over him; however Mr. Genc continued to live in Turkey with his grandparents. In 2005, when he was fourteen years old, he applied for family reunion with his father in Denmark, who was at the time in active employment.

Mr. Genc’s application was denied in 2006 by the Danish Immigration Service, and again in 2007, by the Ministry of Integration. The reasons for the denial were twofold: having lived in Turkey all his life and being able to speak only Turkish, the Ministry stated that Mr. Genc had no possibility of establishing sufficient ties with the Danish society to allow a successful integration. The other reason given was that his father was not considered well integrated either, and thus he was referred to continue family life through visits to his son in Turkey, as he had been doing already.

Mr. Genc brought the case to the court of first instance and later to the Eastern Regional Court, which decided to refer the case to the CJEU in 2014. The Danish national courts are generally reluctant and not particularly active in referring cases to the CJEU, but since the Dogan case had stirred the waters around the conditions for family reunification for Turkish nationals, the time was ripe to submit to the Court’s evaluation the condition for successful integration before family reunion – at least as far as this group of foreign nationals is concerned.

The Danish Aliens Act establishes that a residence permit can be granted upon application to a child under the age of fifteen who wants to live with the parent having full or partial custody, but only if the child has not established her own family yet. The sponsor parent living must be the holder of either Danish citizenship, citizenship in one of the Nordic countries, refugee status, a permanent residence permit, or a temporary residence permit that has the possibility of becoming permanent. Other conditions are: self-sufficiency (the sponsor parent should not be receiving State help or social security subsidies); adequate housing; no conviction for abuse against children; and respect for the best interest of the child. Different conditions may apply for refugees.

Finally, the requirement for successful integration demands that if the child and one of her parents are living in their home country or another country, the residence permit will be given only if she already has, or has had, a possibility to obtain such an attachment to Denmark that will constitute a basis for a successful integration. The integration requirement is only applied when more than two years pass from the moment a parent becomes eligible to apply for family reunification to when s/he finally files the papers.


The referring court formulated four questions, requesting clarification on the earlier case law of the CJEU on the standstill clause vis-à-vis the Dogan judgment. As a whole, the questions referred reflected the doubts expressed in the Ministerial note and concerned the restriction test and proportionality assessment of the integration requirement for family reunification with respect to Article 13 of Decision No. 1/80 on the development of the Association Agreement (prohibition on introducing new restrictions on the conditions of access to employment to legally resident and employed nationals). Unlike the standstill considered in the Dogan case, this standstill relates to workers, not self-employed persons, and has applied since 1980 for the first nine Member States.

The CJEU decided to consider the questions referred together, and to focus on evaluating whether the integration requirement in Danish law was to be considered a new restriction. The Court started by affirming that the situation in question related to the freedom of Turkish workers within the EU, and thus it was covered by Article 13 of Decision 1/80. The CJEU then affirmed that its interpretation in Dogan that applied the standstill obligation to spouses could also be transposed to other family members, since restrictions to family reunification would affect the exercise of the economic freedom of (in this case) workers.

Thus the CJEU insists on the fact that -national legislation that restricts family reunification for Turkish workers is covered by the standstill clause, denying that this is equal to granting a right to family reunification or a right of establishment and residence for family members (para 44–45).

In order to sustain the exercise of the economic activity of Turkish nationals, a requirement that further restricts the possibility of obtaining family reunification must be considered a new restriction. As such, according to the Court’s case law since Demir, national provisions that impose conditions more stringent than the ones applicable at the time of entry into force of Decision No. 1/80 can only be allowed if the requirement is justified on public interest grounds, and is proportional, i.e. apt to achieve a legitimate objective and not going beyond what is necessary in order to attain it. In fact, after Dogan and the reach of the standstill requirement there established, any new integration requirements for family reunion can only be introduced on the grounds of public interest.

The Court invokes Article 79 (4) TFEU, which refers to the prospect of EU measures on integration of non-EU citizens, to establish that an integration objective can indeed constitute an overriding reason in the public interest (para 55– 56). However, the Danish law at stake in this case did not pass the proportionality test. In the eyes of the Court, the two year deadline which imposes the integration requirement is not indicative of the potential for successful integration of the child, nor of the intentions of the parents as regards ‘shielding’ their children from the host country’s society (of note is also the opinion of Advocate General Mengozzi on the non-existence of correlation between a prolonged stay in a third country and the possibilities for integration, at para 48–49 of the opinion). To the contrary, the deadline imposed does not consider the individual circumstances of the case, may lead to automatic and systemic refusals of family reunification which are not suitable to be appealed, and may lead to discrimination against children in similar situations.


Denmark introduced the requirement of successful integration for family reunification with children in 2004. The rules had a dual objective: to get rid of the practice of children’s so called ‘re-education journeys’ to the parents’ homeland, as well as to prevent children from being left outside of Denmark as long as possible before they reach adult age, in order to be educated and influenced by their homeland’s culture, traditions, values, and norms. The maximum age at which a child living abroad can obtain family reunion was lowered to fifteen years old. In order to make sure that those children who would live in Denmark as adults would be integrated, they are expected to relocate with their parents as early as possible in order to be exposed to the national culture, language, norms, and values, especially through schooling.

From a critical perspective, the objections that can be raised against the national law are essentially three.[1] First, when applying the requirement for successful integration, the lack of the integration of the sponsor parent weighs more than the appraisal of the integration potential of the child. Integration in Danish law is connected to participation in the labour market, but also to assimilation of national values and norms. Unemployed and non-integrated immigrants are rarely granted the possibility to be family reunited with their children in Denmark. Family sponsored migration from non-Western countries has been reduced via a string of convoluted rules that have diminished this channel of legal migration. Integration requirements are in this context employed in order to limit migration via family reunification.

Second, as also noted by the CJEU, the national authorities have employed a narrow and literal interpretation of the rules, funding the evaluation on the detailed requirements listed in the  preparatory work to the national law (duration of stays in Denmark and in the home country, in which country the child has spent most of her upbringing and gone to school, which language the child speaks, etc.). This limits the discretionary power of the authorities and impairs genuinely considering the individual circumstances of the case, including the best interest of the child. The requirement of the potential for a successful integration thus looks more like a legal construction that renders possible the automatic rejection of family reunification applicants that have spent too many years in their parents’ home country and who do not speak Danish, and where the parent has not been able to prove that s/he is well integrated.

Third, the requirement will always be applied to children of eight years or older, where the child has stayed with the other parent outside of Denmark, when more than two years have passed since the parent could legally apply for family reunification. In these cases, it will be impossible to fulfil the requirement of potential for successful integration. In this optic, integration becomes a key factor for evaluating also the best interest of the child. The child's legal status is made dependent on the parent's, and the instrumental interpretation of the principle of the best interest of the child entails that it is the opportunity for the child to develop a social connection to the host country’s culture and society which weighs more than the possibility to live with a parent. Yet, this also means denying family reunification to children as young as eight years old.

In this light, the limits of the Genc judgment are two, in my view: First, it only concerns Turkish nationals, possibly leaving space for continuing to enforce the arbitrary and non-proportional integration requirement onto other third country nationals and their children. The second limit is that it only concerns employed Turkish nationals, perhaps regrettably highlighting that the right to family life is precluded for non-economically active citizens. A week after Genc, the CJEU held the same stand and stated in Khachab that a national rule requiring a (non-EU and non-Turkish) sponsor parent to be in possession of sufficient resources (basing that prediction on previous income) before granting family reunification is compatible with the Family Reunification Directive. Hence at the same time that the protection of the family life of Turkish workers in the EU appears to increase, other third country nationals may still experience discrimination and limits to their family life.

Barnard & Peers: chapter 26
JHA4: chapter I:6

[1] Adamo, S. What is ‘A Successful Integration’? Family Reunification and the Rights of Children in Denmark. Retfærd. Nordic Journal of Law and Justice, Year 39, Volume 1/152, 2016, 38–58.

Monday, 25 April 2016

Goodbye, cruel world: visas for holidays after Brexit?

Steve Peers

Until yesterday, I have consistently argued that the prospect of British citizens being subject to visas for short-term visits to the EU after Brexit was highly remote. In fact, I even told off some ‘Remain’ supporters who suggested that this might happen. EU policy is consistently to waive short-term visa requirements for wealthy countries (like the USA, Canada and Japan) as long as those countries waived short-term visa requirements for all EU citizens in return. I couldn’t imagine that it was likely that anyone on the ‘Leave’ side would wish to advocate short-term visa requirements for EU citizens visiting the UK after Brexit, thus damaging the British tourist industry and leading to a reciprocal obligation for UK citizens to get visas for short visits to the EU.

Incredibly, I was wrong on this. Yesterday, Dominic Raab, a senior figure on the Leave side, suggested that the UK might want to introduce visas for EU citizens after Brexit, and accepted that UK citizens might be subject to visa requirements for visits to the remaining EU in turn. It can’t seriously now be suggested that it’s ‘scaremongering’ to consider that this might become UK policy after Brexit – unless there’s such a thing as ‘self-scaremongering’ by the Leave side.

Let’s be clear about this. The idea of short-term visa requirements after Brexit is utterly and profoundly stupid. It is by no means a necessary consequence of Brexit, and would cause the maximum possible damage to UK businesses and the ordinary lives of British citizens who seek to visit the EU after Brexit, with little or no security benefit in return.

Background: EU visa policy

As an EU Member State, the UK allows short-term entry to EU citizens without a visa, as well as longer-term free movement of people – although the latter issue is severable from short-term visas. The reverse is also true, of course: simplifying the leisure, family and business visits of millions of British citizens to the EU every year. While there is an earlier treaty from the Council of Europe (a body separate from the EU) which abolishes visa requirements between European states, the UK is not a party to that treaty – and presumably would not become one under Raab’s plans.  

The EU has agreements on free movement of people with Norway, Iceland and Switzerland, but it seems clear from official statements by the Leave side that the UK would not sign up to these after Brexit. But as I said, short-term visa waivers are a severable issue: the EU does have reciprocal short-term visa waiver treaties with a number of non-EU countries, as well as a unilateral policy of waiving short-term visa requirements for other wealthy countries who reciprocate. Therefore, all it would take for British citizens to retain the visa waiver for short-term visits to the EU after Brexit would be a British government policy not to impose short-term visa requirements on EU citizens, or a UK/EU treaty to this effect. This seemed highly likely – until Raab’s rant.

The EU decides visa policy as a bloc, so there is no possibility that the UK could do separate deals on short-term visas with individual EU countries. As an exception, Ireland (like the UK at present) has an opt-out from the EU’s visa policy, so the UK and Ireland could retain their separate Common Travel Area arrangements – if they wished to. It’s not clear if Raab also wants to impose visa requirements for Irish nationals (which might also then be reciprocated). If that happens, then border controls would have to be reimposed between Northern Ireland and the Irish Republic, as some on the Leave side have already called for (though others have taken a different view).

EU visas: the legal framework

The EU (apart from Ireland) has a standard short-term visa policy, which entails issuing ‘Schengen visas’ valid for all the Schengen states.  So in legal terms we know what the impact would be of the EU imposing visas on British citizens. The basic rules are set out in the EU visa code, although a few EU countries (Romania, Bulgaria, Cyprus and Croatia) don’t apply that code yet as they are not yet fully part of Schengen. While the Schengen system currently has many well-known problems as regards border control, this has not affected Schengen visa policy, and there is no reason why it would do.

To get a Schengen visa, the visa code requires an application at a consulate, although in practice the applications are often made through a private service provider. Applications can be made up to three months before the date of travel, or six months for multiple-entry visas. Applicants need to provide fingerprints, except for children under twelve and some other limited exceptions. They must also provide documents supporting the reason for their travel, obtain medical insurance and pay a fee of €60 per applicant, along with an extra fee if the applicant uses a private service provider. The fee is reduced to €35 for children between six and twelve, and waived for younger children, as well as pupils and teachers on study trips, researchers and representatives of NGOs. It may be waived in a small number of other cases; but it is always payable for tourist or business trips.

Most applications for Schengen visas are accepted, but applications are scrutinised for subsistence and intention to return, so it may be more likely that unemployed or low-waged British citizens find their visa applications refused. Any rejections will be registered in the EU’s Visa Information System for five years, which may make it less likely for a future application to be accepted. Usually a visa is valid for a period of three months over the next six months, but it is possible to get a multiple-entry visa (valid for several trips over a five year period) if there is a proven need to travel frequently. Visas can’t usually be obtained at the border, so British citizens would have to apply for a visa at least several days in advance to be sure of being able to travel. Without a visa, they would be denied boarding planes, trains or ferries, due to the EU law on carrier sanctions.

Back in 2014, the Commission proposed amendments to the EU visa code. They would, for instance, simplify the rules on getting multiple-entry visas, and allow for earlier applications. But such visas would still not be standard. Recently, both the Council and the European Parliament adopted their positions on this proposal, and so it will likely be agreed later this year. I’ve blogged separately on the main changes that the Commission proposed, as well as the chance to add rules on humanitarian visas, and on the specific proposals affecting UK citizens’ non-EU family members. But if the new code ultimately applies to all British citizens, its impact will be obviously be much greater.

The EU has signed some treaties on visa facilitation with non-EU countries. These treaties don’t waive the visa requirement, but they reduce the application fee and simplify the process. Of course they are reciprocal – the UK would have to cut the fees and simplify the process for EU citizens applying for short-term visas to visit the UK too.

Practical consequences: the unbearable madness of visa requirements

There’s no doubt that visa requirements reduce travel for tourism, business and other purposes. There are detailed estimates of the scale of the economic impact in a report drawn up for the Commission before it proposed the revised visa code. Think of it at the individual level: if there’s no visa facilitation treaty, a British couple with two teenagers would have to pay an extra €240 for a family holiday in the EU in visa application fees, with fees often paid to service providers on top. Even with a visa facilitation treaty like the one with Ukraine, the family would pay €70 in fees (€35/adult, under-18s exempt from fees), and again possibly service providers.

Raab argues that all this is justified on security grounds. Is it? First of all, the vast majority of terrorist (or other) offences in the UK are committed by British citizens. But some foreign visitors do commit crimes. How best to screen them out? The basic problem is that imposing a visa requirement doesn’t, in itself, increase our capacity to determine if a particular individual is likely to pose a threat. It simply, in effect, moves the decision on entry in time (to a date before arrival) and space (away from the border to a consulate – although individuals will still be checked at the border to ensure that there is a visa in their passport). The best way of knowing if a particular individual is a threat is by checking the available data.

That information is easy to find if the visa applicant has previously committed a crime in the UK, because in that case there ought to be a criminal record accompanied by an entry ban. But in this scenario, the entry ban information should in principle not only be available to consulates considering a visa application, but also to border guards deciding on entry at the border. So the visa requirement adds nothing. Nor does it add anything as far as EU citizens are concerned: the EU citizens’ Directive allows the UK to impose an entry ban on EU citizens who have committed serious crimes; and the UK can (and does) refuse entry to EU citizens at the border.

What if the visa applicant has committed a crime in another country? Whether people have to apply for a visa or are checked at the border, there is no general access to other countries’ criminal records. However, the UK does have access to some relevant data as an EU Member State. Last year, it gained access to the Schengen Information System, which includes information on wanted persons, including some terrorist suspects. From 2012, the EU system for exchange of information on criminal records was set up (known as ECRIS: the European Criminal Records Information System), and the EU Commission recently reported that it had greatly improved the flow of information on this issue. The ECRIS law provides for criminal records to be exchanged more easily as regards a country’s own citizens (so we now have more information on UK citizens who have committed crimes abroad). Furthermore, the UK opted into the newly adopted EU law on passenger name records.

These laws don’t provide perfect security, of course. Not all terrorist suspects’ names appear in the Schengen Information System, for instance. The passenger name records law is likely to be challenged on human rights grounds, since it gathers information on all passengers, not just suspects. The criminal records law was unable to stop a tragic killing two years ago, because British police unfortunately did not ask another Member State about the killer’s criminal record (on the basis of a separate EU law) when they had the opportunity. As I suggested at the time, it would be desirable to provide for automatic circulation of the criminal records of EU citizens who have been convicted of very serious crimes, if they have been released from prison, so that they can be stopped and validly rejected from entry at the border.  The upcoming amendments to the Schengen Information System would be an opportunity to do this.

But how would Brexit, with or without a visa requirement, improve this situation? It would not give the UK any more access to EU databases, or to other Member States’ criminal records systems; indeed, it might mean less access. The EU has not extended ECRIS to any non-EU countries; the Schengen Information System has only been extended to those (like Norway and Switzerland) that are fully part of Schengen. The EU has some treaties on exchange of passenger name data with non-EU countries, but this policy is being challenged on data protection grounds in the EU court.

More broadly, the EU court has ruled in the Schrems case that personal data can only be transferred to non-EU countries that have data protection law ‘essentially equivalent’ to EU law. The UK would have to commit to continue applying a law very similar to EU law, or risk disruptions in the flow of personal data – affecting digital industries as well as exchange of data between law enforcement authorities. This restriction can’t easily be negotiated away, since the case law is based on the EU Charter of Fundamental Rights, which has the same legal effect as the Treaties. The UK’s compliance with the EU rules would almost certainly be challenged in practice: see by analogy the Davis and Watson case already pending before the EU court. Outside the EU, the effect of a ruling that the UK did not comply with the rules would be a potential disruption of the flows of personal data.

One final point. Let’s remind ourselves that the UK already allows nationals of over fifty non-EU countries to visit for a short period without a visa. So obviously we have found a way to reconcile the possible security threat this might pose with the needs of the UK economy. Why should that be so difficult to do as regards EU countries after Brexit? The mere existence of that policy anyway creates a loophole: any EU citizen with the dual nationality of one of those non-EU states (or perhaps Ireland) would be able to visit the UK without a visa anyway. Or is the intention to require a visa for everyone?

Of course, this loophole would work the other way around too. As a dual citizen of the UK and Canada, I could still visit the EU visa-free on a Canadian passport. So could any other British people who are also citizens of a Member State, or a non-EU country on the EU visa whitelist. But many others (including my family, for instance) could not. Let’s conclude on the utter absurdity of this: a British citizen contemplating the use of a Canadian passport to visit the European Union. Is this really the vision of an open, liberal, global United Kingdom after Brexit that the Leave side want people to vote for on June 23rd?

Barnard & Peers: chapter 13, chapter 26
JHA4: chapter I:4

Photo credit: welcome2britain.com

Sunday, 17 April 2016

The NHS, TTIP, and the EU referendum

Tamara Hervey, Jean Monnet Professor of EU Law, The University of Sheffield

Who would have thought that the NHS would be such a significant aspect of the debate on the UK’s membership of the EU?

With campaigns for the referendum on 23 June 2016 underway, all sorts of claims are being made about the effects of EU membership on the NHS, and people have been rightly wondering whether they are accurate. Here are some of the questions that I have been asked (others are covered here):

Q1.  What influence does the EU have on the NHS now – does the EU make decisions about our NHS?

Q2.  What – if anything – do EU membership; the Transatlantic Trade and Investment Partnership (TTIP); and the NHS have to do with each other?

Q3.  Assuming the EU agrees to the TTIP, how does EU membership impact, or not, on ‘privatisation’ of the NHS?

Q4.  How – if at all – would it be different if the UK left the EU?

Q5.  Would being in the EU prevent a future government from ‘renationalising’ the NHS?
In answering these questions, I want to make clear that this is not just an argument about facts, or a disagreement about how to interpret the data.[Note 1]

It is also a discussion about interpretation of texts. Those who are not lawyers may find this frustrating, and may be looking to lawyers to ‘just tell me, what is the legal position’. However, I will insist that the craft and professional skill of lawyers (in practice and in the academy) is to provide credible and convincing interpretations of legal texts, a matter on which there can be justifiable and mutually respected disagreement. Lawyers do not simply state ‘what is the law’. So my answers to the questions are – in that sense – not definitive.

However, the answers I give in this blog are based not only on my political convictions: I am convinced that, on balance, to remain in the EU is by far the best outcome from the June 2016 referendum. My interpretations are also based on over 20 years of researching and teaching EU law, and how it applies in health contexts. My collaborator Professor Jean McHale and I were among the first to think about health and EU law. Of course, I will also freely admit that I think my answers are the best interpretations of the legal texts.

In summary, here are my answers. The analysis supporting these conclusions follows below.

A1.  The EU does not tell our government how to run the NHS. Some EU rules affect the way in which the NHS may be run, but those rules are interpreted in ways which respect national decisions about how national health systems are organised and the values they express.

A2.  The EU and its Member States will be bound by TTIP, if it is agreed. To the extent that the TTIP rules apply to public national health systems across the EU, and to our NHS in particular, if we remain in the EU, the TTIP rules will apply. However, TTIP only applies where there is a market element to the provision of services. That means that it does not apply to some aspects of any of the national health systems in the EU, including our NHS. Even where it might apply to NHS services, it is still open to our government, which will likely have a veto over TTIP as an EU Member State, to negotiate a ‘reservation’ (opt out) from TTIP or parts of TTIP. And even where no reservation has been negotiated, TTIP still permits regulation limiting free trade for ‘legitimate policy objectives’.

A3.  Assuming the EU agrees TTIP, EU membership would not require continued existing ‘privatisation’ or further ‘privatisation’ of the NHS except to the extent that TTIP applies to national health services in general, and our NHS in particular, as outlined above.

A4.  If the UK left the EU, it would not be bound by TTIP, but as I’ve already said, TTIP is not the danger to the NHS that some people claim.  Anyway, the UK will seek a free trade deal with the US if it leaves the EU, raising the TTIP issues again, but outside the context of the EU’s respect for the ways European countries organise their national health.

A5.  No. Being in the EU does not prevent a future government from ‘renationalising’ the NHS.

The starting point in considering the EU’s influence on the NHS is that the NHS is a matter of national competence. Article 168 (7) of the Treaty on the Functioning of the EU clearly states that the organisation and delivery of health services is a national responsibility, not even a matter of shared competence between the EU and its Member States. Nothing in EU law requires governments to organise health systems in any particular way. Choices about the way our NHS works are national – they are the decisions of our government(s) [Note 2], enacted in law by our Parliament(s), and interpreted by our courts and administrative bodies. Other EU countries organise their health systems in very different ways, and are entitled to do so, although we share common values about national health systems.

That said, there are features of EU law that have an impact on aspects of our NHS. The Single Market – which is regularly cited as one of the main reasons to Remain – requires free trade in products and services across EU borders, and fair competition between market actors operating within the EU. EU law is based on market liberalisation: as its ‘better regulation’ shows. This has been heavily criticised from the political left, for instance, by those seeking to protect labour rights. But EU law also includes labour rights: for instance, all employers including hospitals must comply with EU rules on working hours. Note also that recently-commissioned legal advice to the Trades Union Congress is that remaining in the EU is a better way to protect labour rights than leaving.

For a long time, it was thought that EU rules applied only to private health service providers, so not to national health systems. But all EU Member States have elements of market provision within their national health systems – these are part of a broader liberalization agenda being promoted by the World Bank since the 1990s. EU law applies to those market actors in the NHS.

But it does so in ways that respect national decisions. EU law does this through three legal mechanisms:

·     In some instances, EU law leaves national health systems outside the scope of its application. For instance the Services Directive excludes health services altogether.

·    Relevant EU laws that do apply have significant exceptions for ‘services of general interest’ and health is such a service.

·      Restrictions on free movement of products or services that would otherwise breach free trade law, and cartel-like or monopolistic behaviour that would otherwise breach competition law, can be justified under EU law, if they are necessary to protect ‘legitimate public interests’ such as effective organisation of hospital care in a particular region.

In an analysis of scores of decisions of courts and competition authorities, across all the EU’s Member States, our Cambridge University Press book European Union Health Law found that the closer a health institution is to the ‘heart’ of a national health system, the more readily national preferences are respected through the way that EU rules are interpreted. Funding arrangements, hospitals, laboratories, blood and tissue centres all enjoy a protected position in EU law; pharmacies to some extent; dental clinics and opticians less so.

Like EU law, the TTIP (along with all other trade agreements) is based on an ideology of free trade. If such an agreement were to apply the ordinary rules of free trade to all sectors of the EU, then it would indeed represent a significant threat to the European ways of organising health services.
But it doesn’t.

All the EU Member States have national health systems based on dignity in terms of how patients are treated; solidarity in terms of how systems are funded; and equality in terms of access. So it is not surprising that the EU is negotiating a trade deal that will respect those values. Each government normally has a veto in EU trade deals: if we don’t get the deal we want in TTIP, our government could oppose it. [Note 3] What is intended by the parties to the agreement in TTIP (the EU, its Member States and the US) is important, because it is taken into account when interpreting the legal texts. Safeguards for public services are embedded in EU law, so they were probably assumed in the EU’s negotiating position with the US over TTIP from the start. We don’t have those early negotiating texts, so we can’t tell for sure.

But we do have the more recent negotiating texts – thanks to the response of the EU to significant grassroots pressure for transparency.[Note 4] The ways in which the latest (March 2016) texts express support for those European values in health services involve the scope of the agreement; exceptions; and justifications for departing from its general rules. 

·         Exceptions and justifications include:

·         The opening provision in the chapter of TTIP on services and investment liberalisation, which confirms that the EU, its Member States and the US may ‘adopt, maintain and enforce’ national measures that restrict services or investment liberalisation, as ‘necessary to pursue legitimate policy objectives’. In other words, states may adopt justifiable regulation. A non-exhaustive list of such regulatory policy objectives includes protecting public health; securing dignity, solidarity and equality within the NHS constitute such an objective.
·         Similarly, the ‘general exceptions’ clauses include agreement that nothing in the TTIP should be interpreted in such a way as to prevent the EU, its Member States, or the USA and its states, from adopting or enforcing measures ‘necessary to protect human … health’.
·         Neither of these provisions is explicitly about the NHS, but they will be taken into account when interpreting the TTIP should it apply to future US service providers or investors in the NHS. It is hard to think of a service of general interest with a stronger claim to legitimate and justifiable regulation.

·     The TTIP will include Annexes in which existing national laws ‘derogating’ from the liberalisation provisions (permitted exceptions to those rules), and areas in which individual national governments reserve the right to make future derogations, are listed. I say more about these ‘reservations’ below.
·      It’s important also to understand that non-discriminatory rules, such as a requirement to be licensed, quality standards, obligation to provide a universal service, or language proficiencies, are all allowed under TTIP – they are justifiable regulation. So none of these, or similar, aspects of the NHS would be affected.

·   The approach being proposed in TTIP to determining the scope of application of the services and investment provisions is a variant of ‘negative lists’, in which the EU and US will (if they can agree) explicitly exclude certain sectors from the TTIP.

·    TTIP will also probably include ‘standstill’ or ‘ratchet’ clauses, to prevent reintroduction of national rules restricting, eg foreign ownership of firms.

How should we interpret the TTIP provisions in the context of our NHS? A legal opinion prepared for Unite, based on the July 2015 negotiating texts, concluded that ‘TTIP proposes a real and serious risk to future UK government decision-making in the NHS’. (Incidentally, Unite’s position on the referendum is Remain.) The advice proposed ‘a blanket exception’ for the NHS in the main text of TTIP, or a reservation in one of its Annexes, as the solution. The negotiating texts explicitly reserve the right to make changes at any time prior to the conclusion of the negotiations, so such an exception or reservation could still be included.

But so far, the TTIP text does not do so. 

Austria, Germany, Greece and Italy all have explicit reservations in the text from the services and investment provisions of TTIP for existing rules about some health professions. France has a general reservation limiting the nature of legal entities through which foreign investors can provide health services.  But the UK hasn’t entered any reservations in either category in this part of the TTIP text. (Cyprus seems more worried about US hairdressers than the UK is about this. It has a reservation for hairdressing services.) In the context of market access, the UK’s reservation is only to state that ‘establishment for doctors under the National Health Service is subject to medical manpower planning’.  As should now be clear, these reservations clauses of TTIP express preferences of the UK government. They are not a function of the EU’s negotiation of TTIP per se.

The UK has entered reservations for possible future provisions which restrict cross-border provision of health services, pharmaceuticals, or medical and orthopaedical products, where the provider is not legally established or physically present in the UK. These could be used to restrict access of US-based firms to these aspects of the UK market in the future.

The EU itself has entered reservations for future provisions in the publicly funded or state supported health sector:

“with regard to the provision of all health services which receive public funding or State support in any form, and are therefore not considered to be privately funded …. The EU reserves the right to adopt or maintain any measures with regard to all privately funded health services, other than privately funded hospital, ambulance, and residential health services other than hospital services … with respect to requiring the establishment of suppliers and restricting the cross-border provision of privately funded hospital, ambulance, and residential health services other than hospital services …”.

The text here embodies the notion of European national health services, which regardless of exactly how they are funded, or the form in which state support is given, are not considered to be part of the ‘private’ sector. Market access under the TTIP is only for privately funded health services. This is consistent with the values of EU health law.

The EU’s position is also expressed in an important general exclusion from the market access and investment rules of TTIP for ‘activities considered as public utilities at national or local level’, which may lawfully be public monopolies and enjoy exclusive rights to supply public services. The text explicitly says that these include health services. Future sales of nationally-held equity interests in or nationally owned assets of state enterprises providing health, social, or education services may prohibit or limit sale to or ownership by US firms. EU countries may also introduce rules on nationality of management or board members, or limiting suppliers. Furthermore, although TTIP is all about greater regulatory coherence between the EU and the US, the TTIP texts explicitly embody the right to regulate to pursue legitimate public policy objectives. The EU can be expected to exercise that power consistently with its approach to public national health services. The European Commission has assured the House of Commons Health Committee that this is so, in a formal letter in December 2014.

The rationale for the Unite legal advice was that the TTIP texts did not provide sufficient assurances that the UK government would not be required to pay substantial compensation to US investors in the national health sector in the event of a decision of a future UK government to change the way the NHS is organised. The threat of litigation, or worse, the use of the widely-criticised investor-state dispute settlement mechanism involving private and secret arbitration, would provide a ‘chilling effect’ on a future government’s discretion, for example, to take back ‘in house’ certain services now provided by private contractors.

It is the case that, under TTIP, governments would be obliged to protect foreign investments, respect contractual commitments, and not to expropriate property through nationalisation without fair compensation for ‘market value’ of investments made.  But this is true in existing international trade or investment agreements, and would apply in any future trade or investment deals that the UK were to negotiate if it left the EU. There’s a nice summary explaining this here.

The obligation to compensate also applies, of course, to compensation for national firms, were a future UK government to breach contracts with such firms by renationalising the NHS. In this regard, the EU and TTIP are a red herring. 

But if under a future renationalised NHS, which provided health services through publicly owned entities, contracts with private providers were simply not renewed, claims in contract law would not apply.  The idea of a potential ‘chilling effect’ comes from the fear that there might be a claim under TTIP for foreign investors.  The argument has been made that a US investor in a private provider contracting with a Clinical Commissioning Group (CCG) under the Health and Social Care Act 2012 might claim that their investment in England and Wales was on the basis of a secure future market for such contracts. Investment decisions made on the basis that, although each contract was time-bound, there would be many future opportunities to contract with CCGs, and so to remove all possible future contracts would deprive the US investor of its property.

That argument assumes that the new national law would be a breach of TTIP, notwithstanding the UK’s right to adopt justifiable regulation to achieve legitimate policy objectives embodied in the TTIP text.  As I have already argued, a better interpretation of the TTIP text is that such regulation is permitted. The 12 November 2015 negotiating text on Investor Dispute Settlement begins with the ‘right to adopt justifiable regulation’:

“The provisions of this section shall not affect the right of the Parties to regulate within their territories through measures necessary to achieve legitimate policy objectives”

“the provisions of this section shall not be interpreted as a commitment from a Party that it will not change the legal and regulatory framework, including in a manner that may negatively affect the operation of covered investments or the investor’s expectations of profits.”

The text confirms that expropriation of private property may take place ‘for a public purpose’, and it is undoubtedly the case that a decision of a government to renationalise the NHS would be for such a purpose.

The ‘right to adopt justifiable regulation’ clause is general, and in itself doesn’t provide explicit protection for a decision of a government to take an action that indirectly results in expropriation of property. What I am suggesting here is that the proper interpretation of the text of TTIP (especially of the exclusions from the scope of TTIP, the reservations clauses, and the ‘right to adopt justifiable regulation’ itself) would take into account all of the above arguments about the place of health services within EU health law: not as an ‘ordinary’ service, subject to the rules of free and fair trade, but as a service of general interest, for which significant exceptions, flexibilities, and exclusions apply. This is what the EU’s Court of Justice has done (see Hervey & McHale). It is what the TTIP investment courts should understand as the intention, and meaning, behind the legal texts.

Moreover, even if the TTIP court concluded that there had been a breach, it would still have to decide what is a ‘fair market value’ for compensation for the relevant investment.

The original idea in the TTIP’s proposed procedure for settling such disputes was to use international arbitration. This has been criticised as lacking in the transparency and respect for the rule of law associated with decisions made by courts. The EU’s November 2015 negotiating text indicates a different approach. Disputes about investment settlements would be resolved by an ‘investment court system’, consisting of a tribunal and an appeal tribunal. The 15 first instance judges (sitting in panels of three) and 6 appeal judges would be independent of any government, qualified to hold judicial office in their own countries, and would have appropriate experience. They would either be paid a retainer fee, or would be salaried judges. A code of conduct would require disclosure of judicial interests, independence and impartiality. Judges would not be permitted to hear claims where they had a conflict of interest, and a specific procedure to assert such conflict of interest would be available. The proceedings and documents would be made transparent, subject to redacting confidential information. All of these rules are designed to secure a system respecting the principles of judicial process. While it is impossible at this stage to assess the possible future working of such a system in practice, the legal texts suggest something more akin to a court than to a private dispute settlement mechanism, with the concomitant expectation that a properly judicial approach would be taken to textual interpretation.

So, to recap, as for whether being in the EU would prevent a future government from ‘renationalising’ the NHS, of course that question is based on the premise that a future UK population elects a government that seriously proposes renationalisation. Others are better judges of the likelihood of that, but I note that even the Blair government continued with the NHS ‘marketisation’ agenda. It should be apparent from what I have already said that I do not think that EU law prevents such renationalisation. Indeed, in general EU law does not prevent nationalisation of business.

I have written about this in the past, taking the opposite view. It is certainly possible to argue that EU law ‘locks in’ arrangements for liberalized service provisions. This is sometimes known as the ‘aquarium to fish soup argument’ (you can make the latter from the former but not the other way around). But I now have a different understanding of the ways EU law includes significant flexibilities and exceptions for ‘services of general interest’. EU law cannot simply be said to promote competition at the expense of other NHS values, such as dignity, solidarity and equality. On the contrary, those values themselves are embedded into the legal texts of EU competition and free market law, and the ways in which they are interpreted.

Furthermore, the UK government could agree a TTIP reservation clause for the NHS. Many other Member States have done so, reflecting the way they organise their national health systems. For instance, Germany, one of the countries which has gone some way towards liberalizing its national health system, has many such clauses already in the negotiating texts. Nothing prevents the UK government from including such reservations while continuing to be part of the EU.

In summary: Is Brexit ‘necessary to protect the NHS from TTIP’?  No.

My view, along with that of many in the health policy community, is that the greatest threat to the NHS remains the policy of successive British governments, based on the idea that a market is the best approach to efficiency, and undermining the historic approach to the NHS as a service based on need and dignity, with no place for austerity narratives. Staying in the EU keeps us within that kind of vision for a public national health service.

Photo credit: NationalHealthExecutive.com
Barnard & Peers: chapter 21, chapter 24

[Note 1]
Conflicting data has been presented on, for instance:
·         numbers of incoming patients from other EU countries who are treated within the NHS;
·         how much that costs;
·         how much is reimbursed to the NHS by other countries, or by insurance or other private means;
·         how much they spend on other services while they are here;
·         how many UK citizens access free health care when in other EU countries on holiday;
·         how many UK citizens live permanently in another EU Member State, accessing health care there [1] [2] [3] [4] [5];
·         how many non-UK EU doctors, nurses, or other health professionals work in the UK [6] [7] [8];
·         how many new private providers there are within the NHS and;
·         how many of those are incorporated in the USA? (I couldn’t find any report on that, although it would seem that the contractual clauses seeking to block tax-avoiding incorporation have been abandoned recently, and the links with shareholding MPs reported here seem interesting). 
Disagreements about how to interpret that data concern, for instance:
·         what is its consequence for hospital trusts’ budgets;
·         how might we expect clinical commissioning groups to behave;
·         or health professionals from other EU countries who work here [9];
·         are the EU’s working time regulations bad for quality of care when applied in hospital contexts (see the arguments supporting the Private Members Working Time Directive (Limitation) Bill);
·         does the UK get more than it gives through EU-funded research collaborations, including in medical fields [10] [11] [12];
·         on balance, is EU membership a good thing for the NHS or not?

[Note 2]
Responsibility for health services is a devolved matter in Scotland; Wales; and Northern Ireland. This blog refers to the UK government, because this is the body that negotiates international trade deals. But decisions about the organisation of health services, including the extent to which health services are subject to market liberalisation, differ between the UK’s nations.

[Note 3]
The European Commission is negotiating TTIP with the USA.  But it can only negotiate on the mandate given by the Council. The Council is the governments of the Member States, including the UK government. The Council votes unanimously on general trade agreements like TTIP, since they include non-trade issues as well, so our government has a veto.  The negotiation is supervised by a special committee appointed by the Council (ie the Member States), to which the European Commission has to report regularly. The European Commission also has to report to the European Parliament. The European Parliament has a veto.  See Article 207 TFEU.  It is likely that each Member State will also have to individually ratify the TTIP too (because it is what is called a ‘mixed agreement’, not entirely within EU competence), giving national parliaments a de facto veto in most Member States, including ours. This blog is written on the basis that the TTIP is a mixed agreement – see further [1] [2] [3].
[Note 4]
This is highly unusual for trade deals, which are normally negotiated entirely in secret. So one possible implication of Brexit is that we may have less access to negotiating texts of future UK trade deals, unless our government chooses to adopt a similar approach to transparency.
None of this analysis would have been possible without access to the negotiating texts.

Thursday, 14 April 2016

The Dutch referendum on the EU/Ukraine association agreement: What will the impact be?

On 6 April 2016, the Dutch voters – not surprisingly according to the recent polls – rejected the EU-Ukraine association agreement with 61.1 percent of votes against. While the voters came just above the 30 percent threshold, the result itself seems to be quite a convincing “nee”.

The EU has so far concluded numerous association agreements with other countries, for example with Algeria, Tunisia, Morocco, Israel, Egypt, Chile and, most recently, Kosovo. So why was the referendum organised exactly regarding Ukraine?

Summer fun?

The reason is both banal and worrying. The so-called ‘Citizen’s Committee-EU’ (Burgercomité EU), which was behind the initiative, publicly and boldly stated prior to the vote that they ‘did not care about the Ukraine’: the referendum was meant solely to weaken the EU, as well as to put the relationship between the EU and the Netherlands under pressure. The Association Agreement was simply one of the ‘actionable’ items picked from the list maintained by the Dutch Voting Council and so became a scape goat for undermining Dutch-EU relationship.

In order to be able to organise a referendum and to make it subject to the new law on referenda, entering into force just a few days after the association agreement with Ukraine should have been voted upon, the campaigners petitioned the Socialist Party (SP) and the Freedom Party (PVV) in the Dutch parliament to postpone the voting on AA in the Parliament. And it happened. Subsequently, the committee contacted the popular right-wing weblog ‘Geenstijl’ to help organise the campaign to raise the necessary signatures for a referendum. The latter agreed, calling the initiative ‘Een leuk zomerdingetje’, a summer fun thing to do.

Legal consequences at the EU level: a ticking bomb?

From a legal perspective, several issues need to be addressed. The EU-Ukraine Association Agreement falls within the category of mixed agreements, meaning that, on the side of the EU, both the EU as well as its Member States are parties to the agreement. In practice this means that all the signatories have to ratify the agreement before it can enter into force. From the side of EU Member States, they have to ratify the agreement in accordance with their constitutional tradition. From the side of the EU, the European Parliament has to give its consent and the Council needs to vote with unanimity (Article 218(8) TFEU). The question is, of course, what legal consequences the NO vote will have for the actual Agreement.

On the one hand, it is yet to be seen whether the Dutch government takes the public opinion into account and whether or not it will nevertheless ratify the agreement. The referendum is what is termed ‘advisory corrective’: a non-binding plebiscite addressing the desirability of laws enacted, including those approving certain international treaties. As such, legally, there is no obstacle to Dutch ratification of the Association Agreement. Politically, however, the matter is a different one: the government, and the ruling coalition, already lack popular support. Prime Minister Rutte can therefore not afford to simply ignore the result. Indeed, he has already promised to take the ‘nee’ seriously and announced that would not ratify the agreement ‘as [it] is’. Nonetheless, it remains hard to predict how seriously one should take this: the Dutch lack a constitutional tradition as regards referenda, with the only other referendum held at national level being the 2005 referendum on the Treaty Establishing a Constitution for Europe.

On the other hand, the NO vote might have an impact on the agreement itself. It is possible that the Dutch government will require a renegotiation of the agreement in the sense of softening the clause on potential accession of Ukraine to the EU. However, with regard to other parts, since the arguments of the NO campaign have little to do with the content of the agreement itself, it is rather unclear which parts of the agreement would need to be renegotiated. In fact, in the Netherlands, the politicians are still trying to unravel what exactly is the message that the voters were trying to cast. In addition, as all other Member States of the EU have already ratified the agreement it is unlikely that the Netherlands would find much support for extensive amendments to the text.

Another option is to draft an opt-out for the Netherlands. Although this option is not used very often, it could potentially be a plausible solution for the current conundrum. A comparable opt-out is the one of Ireland and the UK not being signatories of the Schengen Agreement. Within the EU, there are other important opt-outs: Denmarkand UK have opted out of the monetary union and those two countries together with Ireland have an opt out from the area of freedom, security and justice.

 However, it is not sure whether such an opt-out of the Netherlands should be limited only to certain provisions depending on the type of competence of EU for a particular policy matter. With regard to the provisions of the Association Agreement relating to Common Foreign and Security Policy, an opt-out would be legally possible, for example by using a protocol stating that the Agreement does not apply for the Netherlands except for parts that are already subject to provisional application.

However, with regard to provisions that fall within EU exclusive competence, such as common commercial policy (trade), an opt-out would be both legally and practically difficult. Legally because in the area of exclusive competence, the Netherlands would need to get a special empowerment from the Union in order to be able to act on its own (pursuant to Article 2(1) TFEU). Practically, opting out from trade provisions would face immense difficulties. Not only would this be difficult because this part of the Association Agreement already provisionally applies, but also for another reason: if Ukrainian goods were imported to EU under lower customs tariffs, how could the goods circulate freely within the EU if the Netherlands would not apply these lower customs tariffs due to its opt-out to the Association Agreement? In essence, the EU would become a free trade area rather than a customs union.

It therefore seems most likely that the content of the agreement will remain unchanged. It is most probable that the Agreement will (continue to) be provisionally applied until the final solution on the Dutch position is reached. Provisional application of an agreement is namely, according to Article 218(5) TFEU, possible before its entry into force. The EU-Ukraine association agreement was adopted in 2014 and is already being applied provisionally. Since 2014, the titles on Justice, freedom and security (Title III), on Economic and sector co-operation (Title V), on Financial cooperation, with anti-fraud provisions (Title VI), and Institutional General and Final Provisions (Title VII) have been provisionally applied. The title on Trade and trade-related matters (Title IV) has had provisional application since the beginning of 2016. A provisional application is common with regard to international agreements and has happened on more than one occasion, including for the Association Agreements with Georgia and Moldova. Such provisional application of association agreements requires unanimity in the Council following Article 218(5) juncto 218(8) TFEU.

Potential influence on Brexit and Turkey’s membership in the EU

Perhaps an even more important question is whether a Dutch NO vote could have an influence on other high profile association and accession agreements. A pertinent example in this regard is Turkey. Recently, the EU leaders promised to reopen a chapter of the long-frozen accession negotiations in return for Turkey’s help with the EU refugee crisis.  Turkey, which applied for the full EU membership already in 1987, became an official candidate country in 1999. Accession negotiations started in 2005, but were not progressing, with both sides dragging their feet. With the current renewed impetus, and the opening of some chapters for negotiation, future EU membership of Turkey again seems a real, albeit currently remote, possibility.

There is no direct legal link between the EU-Ukraine Association Agreement and the potential future Accession Agreement with Turkey. The link between the two, however, goes over the political bridge of the Brexit where the results of the referendum on 23 June 2016 might be influenced by both the results of the Dutch referendum as well as by the question of potential accession of Turkey to the EU. The UK public debate already confirmed that voters would be likely to vote in favour of leaving the EU should Turkey join. Politically, it is therefore to be expected that the accession negotiations with Turkey will slow down and may even come to halt before the Brexit referendum. Also, both France and Austria are determined to hold referenda for accession of Turkey, and to that list one might – in the light of recent events - perhaps also add the Netherlands. Moreover, the Cyprus question will probably also slow down the negotiations with Turkey, regardless of Brexit.

Legally, however, the Dutch rejection of the EU-Ukraine Association Agreement will have no implications for the potential negotiation of an Accession Agreement with Turkey. The two types of agreements show rather differences than similarities. While the EU-Ukraine agreement is a mixed agreement concluded with the consent of the European Parliament and unanimity in the Council (Articles 218(6 and 8) TFEU), the accession agreement is concluded only between the Member States of the EU and the acceding state (Article 49 TEU). Furthermore, with regard to the legal base, the EU-Ukraine Association Agreement was based on Articles 31(1), 37 TEU and 217 TFEU. While Article 217 TFEU gives the Union a general competence to conclude association agreements, the other two Articles concern the Common foreign and security policy (CFSP). The Accession Agreement, however, not being a mixed agreement, is a classical international agreement between several states and thus has no legal base as such in the European treaties: Article 49 TEU simply stipulates the basic requirements and procedure for accession. Moreover, an Accession Agreement– contrary to Association Agreements – has to date not been provisionally applied. Therefore, the procedure for conclusion as well as ratification requirements of these two types of agreements are different, with accession agreements needing to be ratified (only) by EU Member States and the future Member State.

In conclusion, the Dutch referendum should be taken as a warning for the European Union leaders that things can rather easily go wrong if the EU does not sufficiently engage with the domestic level in the context of some of its more controversial decision-making. The almost complete apathy of the Dutch government towards the referendum and the lack of serious attempts at defending the decision to sign the agreement almost certainly contributed to the rejection of the Association Agreement with the Ukraine. The lesson that should be therefore drawn for the future is, as the House of Lords EU committee recently argued for the UK, that Member States should actively take responsibility for their EU Membership, and the decisions they take in that context, and be prepared to defend them at the national level.

Barnard & Peers: chapter 2, chapter 25
Photo credit: www.dawn.com