tag:blogger.com,1999:blog-8704899696538705849.post2964779012457475473..comments2024-03-28T02:32:17.979-07:00Comments on EU Law Analysis: The nine labours of Cameron: Analysis of the plans to change EU free movement law Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.comBlogger19125tag:blogger.com,1999:blog-8704899696538705849.post-103035347746439222022-03-08T21:01:33.732-08:002022-03-08T21:01:33.732-08:00This comment has been removed by a blog administrator.Milari Organicshttps://www.blogger.com/profile/06551750920103427045noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-20910605743868812492016-03-06T12:37:59.672-08:002016-03-06T12:37:59.672-08:00You can see my separate blog post on that from Feb...You can see my separate blog post on that from February 2016. I think it is a challenging argument in light of prior case law but the CJEU has never ruled directly whether it would be valid to change EU legislation along the lines of the renegotiation deal. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-10615867315024849492016-03-06T05:10:47.187-08:002016-03-06T05:10:47.187-08:00Hi Steve.
Thanks for your blog post!
I take it...Hi Steve. <br /><br />Thanks for your blog post! <br /><br />I take it you do not think direct discrimination re. the proposal to ban EU workers claiming in work benefits, or indirect discrimination re. the proposal to ban export of child benefit, can be justified as a proportionate means of achieving a legitimate aim?<br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-53727145944820951042015-12-08T09:01:18.763-08:002015-12-08T09:01:18.763-08:00If Cameron wanted to scupper his EU Referendum neg...If Cameron wanted to scupper his EU Referendum negotiations there are many areas that British Public want that he hasn't even mentioned, such as return fishing ground back to EU. Remove ratchet clause from Lisbon Treaty. Remove EU Regional Policy. Ensuring UK Parliament can override EU Law. Allow Britain to enter bilateral trading agreements or go back to Common Market onlty principles. etcAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-62189777054423977392015-05-18T16:50:43.485-07:002015-05-18T16:50:43.485-07:00Er, first of all I am a British citizen since birt...Er, first of all I am a British citizen since birth. A resort to ad hominem comments is a sure sign that you don't have a valid argument. No one group of people has a monopoly on Britishness. Are you suggesting that the 87% of voters that did not cast a ballot for UKIP are not truly *British*?. <br />Secondly, you haven't comprehended the very nature of the discussion above, which is solely about the legal feasibility of Cameron's proposals, not about whether they are desirable or not. But as to those merits, the arguments for British economic security all point in favour of migration of EU citizens to the UK, which has been a significant net benefit to the UK, as a study for UCL last year pointed out. And there *are* significant numbers of UK citizens who move to other Member States, not vastly different from the numbers from other EU countries that come to the UK. The NHS was overstretched in the 1990s already, well before the increase in numbers coming to the UK from newer Member States. Are you suggesting that the schools were half-empty before 2004? <br />But having said that, I do believe that it's necessary to make some changes to the rules on free movement of EU citizens to address public concerns, although I expect they would not go as far as the changes you would wish to see.Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-68914740514637244842015-05-18T15:04:22.019-07:002015-05-18T15:04:22.019-07:00Oh my days Mr Steve Peers...can't we tell your...Oh my days Mr Steve Peers...can't we tell youre not British?<br />Wanting to protect the future economic security of ones country shouldnt be a crime! I have enjoyed many friendships with people of all cultures over the years, either through work (back in the days when there was enough jobs to go around) or social meetings and believe that variety is the spice of life-as humans we are all equal no matter where we are from.<br />But the fact is, when it comes to our homelands wealth, we are far from equal. Other EU countries may well have the same laws regarding benefits, etc but I doubt id get a house and decent weekly payments to keep me going. If so, maybe us Brits would be the one's doing the re-locating and it would be the Polish or Latvians complaining? NHS is so stretched because we're funding EU citizens. My childrens schools are fit to burst and dont get me started on the bill for interpreter's needed for non English speaking student's! If all this was readily available in other EU countries I would have no complaints; I'd emigrate! <br />But they don't, which is why peeps flock here in the thousands. And it may seem dated to believe in keeping Great Britain 'great', but I had relatives who died trying to help other countries protect their heritage. Why is it wrong to look after our own?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-18651942375572989402014-12-10T02:01:47.179-08:002014-12-10T02:01:47.179-08:00Is there evidence as to how many citizens of other...Is there evidence as to how many citizens of other EU Member States would be affected by your proposed change, as compared to citizens of the UK? The application of indirect discrimination rules in cases where the difference between the categories of persons being compared was not huge was discussed by the CJEU in the Seymour Smith case. In any event, your suggestion isn't what Cameron is proposing (for now).Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-30238094056825067472014-12-08T11:40:22.913-08:002014-12-08T11:40:22.913-08:00I'm well aware of that change - it came in whi...I'm well aware of that change - it came in while my wife was on maternity leave with my second child, so took a big and unexpected chunk out of our disposable income - your reference to "several years" made me think you meant something else as this change only took effect from Jan 2013.<br /><br />In terms of the Pinna case, the conclusion there was based on the fact that "the problem of members of the family residing<br />outside France arises essentially for migrant workers", which wouldn't be the case with my suggestion.<br /><br />Now it could be argued that the indirect impact of my proposal would be indirect discrimination, but I think that would be stretching the concept of indirect discrimination a little far. <br /><br />Could you imagine a ruling such as ""the problem of members of the family residing at a different address arises roughly equally UK national and migrant workers, but the consequent problem that their family can then only claim a lower amount of child benefit under their local system of social security which has a lower cost of living, arises essentially for migrant workers"?<br /><br />If this were the case, then surely a similar argument could be applied to Housing Benefit, i.e. should a low-income migrant worker be able to claim housing benefit based on the total cost of their room in the UK as well as their families home in another member state? Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-1350636320656345382014-12-08T10:05:42.148-08:002014-12-08T10:05:42.148-08:00Come on now. If one parent earns more than £50K, t...Come on now. If one parent earns more than £50K, they receive less child benefit, and if that person receives over £60K in income, they get no child benefit at all. Whether it's claimed and then clawed back, or (in most cases, I believe), not claimed in the first place, is immaterial. The result is the same: the parent gets less or no child benefit because of the parent's income. So denying that child benefit is dependent upon a parent's income is sophistry; and it's also quite irritating to those of us who no longer receive the benefit. You can defend the change if you like, but don't deny that it's happened. <br /><br />As for indirect discrimination, it exists where there is a greater impact of a rule upon non-UK citizens; the intent of the measure concerned is relevant at the stage of whether it might be justified. The rule against discrimination is not only in the Regulation, but in the Treaties itself. As regards child benefits for non-resident children in particular, see the Court's interpretation of what is now Article 45 TFEU in Case C-41/84 Pinna I, where the EU legislation which justified such unequal treatment was invalidated by the CJEU for violating the Treaty rule on equal treatment for workers: http://curia.europa.eu/juris/showPdf.jsf?text=&docid=92950&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=173757Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-90137651844579602212014-12-08T09:44:36.343-08:002014-12-08T09:44:36.343-08:00On a point of fact, UK Child Benefit is absolutely...On a point of fact, UK Child Benefit is absolutely not dependent on parent's income. There is a recent provision where it is progressively clawed back through taxation where one parent has a high income (over £50k), but it can still be claimed. Child Tax Credit is similar and is means tested, but it is not the same benefit, and govt statistics show a much lower sum being claimed in respect of children in other member states.<br /><br />Anyway, I am very interested in the point about indirect discrimination. Does this mean that no change can be made to any member state's benefit system if it would disproportionately impact migrant workers, even if there was no question that this was the intent? If so, does this mean the UK would not be able to move to a more contribution based system?<br /><br />Under the current system, Child Benefit can be claimed by either<br />1) a person that has a child living with them<br />2) a person that is contributing to the cost of providing for a child<br />However only one person can be paid in respect of an individual child, and there is a detailed set of rules as to who is paid if more than one person claims.<br /><br />My suggestion would be to remove the second grounds for entitlement, on the basis that it is open to abuse and increases the cost of administration, and as such has a negative impact on child poverty given both directly and indirectly as a result of there being a limited amount of government funding to spend on the payments and administration of child benefit.<br /><br />Specifically it is open to abuse because:<br />- the non-resident parent may exert undue influence over the primary carer to prevent them from claiming<br />- if both parents claim, then two payments can be made at the higher "first child" rate<br /><br />Looking at the regulation 883/2004, there is nothing in there that states that Family Benefits must be paid to migrant workers, only that their entitlement is "as if they [family members] were residing in the former member state [the UK]". If the rules say you cannot claim for children that you don't live with, then surely the UK would be in compliance as long as it didn't allow payments to non-resident parents whose children were libing in the UK.<br /><br />Would you say that this would still fall foul of rules on indirect discrimination, and if so under what regulation? <br /><br />As an ex- Whitehall civil servant, I still believe that most of the UK's issue with EU law is that we are far too conservative (with a small c) about how we could frame our own legislation such that we could get the policy we want while complying with our treaty obligations.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-24054118920243194052014-12-08T05:21:41.441-08:002014-12-08T05:21:41.441-08:00David Cameron's speech was based on the assump...David Cameron's speech was based on the assumption that the benefit changes he wants to make would entail a renegotiation of EU law. I agree that there's a subtle difference between a rule about residence on the territory and your suggested rule about residence with a parent. But the outcome is likely the same, in that more non-UK citizens than UK citizens would be affected by the rule. So it would be indirectly discriminatory, and I think that would be hard to justify given that the intention of the benefit is to combat child poverty. I think the UK might be able to try to defend a policy of paying child benefit at reduced rates where the children live in countries where costs are lower, arguing that it was still combating relative child poverty in those cases. But I wouldn't bet a lot on winning before the CJEU. Incidentally, UK child benefit has been dependent upon a parent's income for several years now. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-25687234645084786342014-12-05T01:27:11.016-08:002014-12-05T01:27:11.016-08:00Interesting...
Surely the UK would have to make s...Interesting...<br /><br />Surely the UK would have to make some change to benefit legislation to exclude migrant workers, so to my mind the question is whether this can be done in a way that complies with treaty obligations. <br /><br />The two judgements you cite do differ in that they applied to laws that included a requirement that some activity (be it residence or burial) take place in the UK as distinct from another member state. <br /><br />My suggestion on Child Benefit would not include any such requirement, and would apply equally to UK citizens who live apart from their dependent children.<br /><br />In the case where the dependent children reside in the UK, the worker's child's primary carer would generally be able to claim child benefit, but it would be a significant legal precedent if the income of a dependent's carer was considered relevant to entitlement to benefits.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-83101698845489363502014-12-04T12:23:27.531-08:002014-12-04T12:23:27.531-08:00The analysis is predicated on the UK making no cha...The analysis is predicated on the UK making no changes to its benefits system, because David Cameron suggested no such changes. I am only analysing the proposals he actually made, not the other ones he could possibly have made (of course, he might alter his proposals when and if negotiations get underway). As to child benefit being payable only to children who live with their parents, residence rules like that are indirectly discriminatory because they are easier in practice for UK citizens to satisfy than foreign citizens, so more citizens of other Member States than UK citizens will lose out. For instance, in the O'Flynn case the CJEU ruled that a residence condition for a funeral benefit (ie only giving a benefit where a deceased person was buried in the UK) was indirectly discriminatory. In Commission v Luxembourg it ruled that giving maternity benefits only to those who had resided in Luxembourg for a year before their baby was born was indirectly discriminatory. And so on. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-30970615511991644332014-12-04T09:48:15.285-08:002014-12-04T09:48:15.285-08:00This analysis seems predicated on the UK making no...This analysis seems predicated on the UK making no changes to its benefit system. <br /><br />Take Child Benefit for example. This is currently paid to adults who have responsibility for a child, and hence would be discriminatory if it was changed to be paid to adults who have responsibility for a child living in the UK, or who is a UK national.<br /><br />However if the benefit were paid so that a parent was only eligible when the child lived with them at their primary residence then it would meet the EU rules, avoid payments in respect of non-resident children (apart from perhaps a small number of cross border commuters), and have very limited impact on UK citizens. <br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-6002515460308616962014-12-04T09:38:51.482-08:002014-12-04T09:38:51.482-08:00Well said MacTurk - and I'm British.
However, ...Well said MacTurk - and I'm British.<br />However, Britain is still languishing in the 19C when it did get its own way with gunboats; and in the 20C with Thatcher.<br />You see, we expect to get our own way because we have had so much success in the past and so we expect the trend to continue.<br />We have small-country-syndrome and with backing from the USA we have been able to continue to indulge our fantasies.<br />Cameron may get lucky or he may get a rude awakening but with UKIP rattling his cage he feels that he has got to try.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-78176509073823987792014-12-01T05:10:34.698-08:002014-12-01T05:10:34.698-08:00The entire 'European debate' in the UK is ...The entire 'European debate' in the UK is simply a pointless exercise in fantasy.<br /><br />As is obvious from this analysis, at no point, from the Prime Minister on down, is reality, or legal facts on the ground, ever allowed to enter.<br /><br />Speaking as an EU citizen who is not, thankfully, British, I would just ask you to hold your referendum, and go on your way.<br /><br />Most of the rest of the EU is fed up to the back teeth with the endless whining, prevarication, demands for special treatment or exclusive deals, which flows in oceanic quantities from the UK. <br /><br />If you cannot get over the loss of the Empire, that is your problem, not ours. Deal with it, cease with the eternal, toxic, nostalgia, and try and join the rest of the world in the 21st Century.MacTurknoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-47518018329519303832014-11-30T03:40:57.040-08:002014-11-30T03:40:57.040-08:00Yes Cameron could change the benefits system inste...Yes Cameron could change the benefits system instead. But that's not what he proposed. The current protection for expelling job seekers comes from the CJEU interpretation of the Treaty. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-21017753056766746652014-11-28T05:55:47.304-08:002014-11-28T05:55:47.304-08:00Just on the first two tasks ...
Of course simply...Just on the first two tasks ... <br /><br />Of course simply restricting benefits on the grounds of nationality is quite impossible under the Treaties. But perhaps this is more a task for Odysseus than Hercules as there is nothing preventing the UK changing its own benefits legislation for example to include criteria based on length of residence in the UK, or even introduce some sort of contributory principle. Such conditions are not unusual in other Member States, and as everyone is then treated equally and subject to the same conditions there is no discrimination. The ECJ decisions on support for students that are sometimes quoted do not really seem any barrier in view of the prevalence of restrictions on general welfare benefits and the lack of challenge to them. <br /><br />As far as removing unsuccessful jobseekers goes, it is of course for the national authority to form a view of whether someone is continuing to seek employment and has a genuine chance of being engaged. In the UK's vibrant labour market it might well not be unreasonable for the national authority to conclude that if someone has been seeking employment for six months and has still not obtained employment, then they have little genuine chance of being engaged.Michael O'Connorhttp://www.strongerinnumbers.comnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-19048714952699035302014-11-28T04:42:27.399-08:002014-11-28T04:42:27.399-08:00Well proposal/labour #2 and proposal/labour #7 are...Well proposal/labour #2 and proposal/labour #7 are contradictory. If EU migrants need to a job offer before coming to the UK how can you then have a rule that allows for the removal of EU job-seekers if they don't have a job after 6 months? Clearly if every EU migrant had a job offer before coming to Britain then there would be no job seekers to remove/expel after 6 months.<br /><br />If this was just political grandstanding then it only sets unrealistic expectations for voters who will become more irate at broken promises. If it was designed as a position that can be easily disposed of in EU negotiations then it also sets voters up for broken promises AND will only put off other EU members who may have been inclined to negotiate with good will.<br /><br />Unless these proposals are designed to fail so that Cameron can then campaign for EU withdrawal with a (relatively) clear conscience and a seemingly consistent/coherent position.....Anonymousnoreply@blogger.com