ClientEarth: a landmark in the CJEU’s environmental law jurisprudence

 

Anna Dannreuther, Trainee, Research Department of the CJEU

Background

The CJEU gave its judgment yesterday on a preliminary reference from the UK Supreme Court concerning the UK’s failure to apply for an extension of time for compliance with limit values for nitrogen oxide. The case was brought in the UK by ClientEarth, an environmental NGO seeking a declaration to the effect that the UK was in breach of Article 13 of Directive 2008/50/EC (the ‘Air Quality Directive’), which laid down a limit of 1 January 2010 for compliance with nitrogen oxide limit values therein.

The UK Supreme Court had little difficulty in finding the UK to be in breach of its nitrogen oxide limit value obligations, the Secretary of State having accepted that the limit values for nitrogen oxide had been exceeded in a number of zones or agglomerations set up for the purposes of the Directive. The breach having been ‘clearly established’, and the Secretary of State’s concession failing to constitute a sufficient reason to decline to grant the declaration, the case was referred to the CJEU for more complex issues of interpretation of Articles 13, 22 and 23 of the Directive.

The UKSC asked the CJEU four questions concerning the obligation on Member States under the Directive to apply for postponement of the limit value deadline, exceptions thereto, whether establishing an air quality plan was sufficient to comply with obligations under the Directive, and the appropriate remedies in the case of breach.

The context of the questions was that in 2011 the Secretary of State had applied to the Commission for an extension of the deadline for compliance in respect of 24 of the 40 zones where nitrogen oxide limits had been exceeded. This was permissible under Article 22 of the Air Quality Directive. In the air quality plans submitted to the Commission, it showed how the limit values would be met by 1 January 2015 at the latest. For the remaining 16 zones, for which the air quality plans projected compliance with the limit values between 2015 and 2025, no request for time extension was made.

The main question for the CJEU then was whether, under Directive 2008/50/CE, the UK was under an obligation to seek postponement of the deadline for compliance with limit values in respect of zones or agglomerations which did not comply with the limit values for nitrogen dioxide by the deadline of January 1 2010. This was unclear from Article 22 of the Directive, which merely stated that Member States ‘may postpone’ the deadline for compliance if compliance cannot be achieved by 1 January 2010. It also sought to know whether compliance with Article 23, by producing air quality plans, was sufficient to comply with Article 13 of the Directive.

Judgment

The ClientEarth judgment is a landmark, marking a firm line being taken by the Court in terms of breach of air quality obligations. The Court took no prisoners in its judgment, and took every opportunity to reinstate the Member State’s compliance obligations under the Directive.

Describing the general framework of the compliance provisions of the Directive, namely that if Member States are unable to comply with limit values they may apply to postpone the deadline for compliance by a maximum of five years, the CJEU firmly asserted that the obligation to make an application for an extension of time naturally followed from the context of the provision and the aim pursued by the EU legislature, even though the exact wording of the Article did not expressly require an application [para 27]. This is so because such an obligation obliges Member States to anticipate that conformity with the limit values will not be achieved by the deadline specified and to formulate an air quality plan giving details of measures that are capable of remedying the pollution by a later deadline.

The obligation was also to be found in the wording of Article 13 of the Directive, which provides that nitrogen oxide limit values ‘may not be exceeded’ after the specified deadline [para 30]. As a consequence Member States must take all the measures necessary to secure compliance with that requirement, and applying for postponement of the deadline for compliance is one of those measures. As for exceptions to this obligation, the CJEU reminded the UK Supreme Court that Article 22 does not contain any exception to the obligation flowing from Article 22(1) [para 34].

In response to the Supreme Court’s question of whether producing an air quality plan was sufficient for compliance, the CJEU contended that such an interpretation would be liable to impair the effectiveness of Articles 13 and 22 of the Directive, as it would allow a Member State to disregard the deadline imposed by Article 13 under less stringent conditions than those imposed by Article 22 [para 44].

In response to the question on remedies, the CJEU recalled Member States’ general obligations under Article 4 TEU to ensure judicial protection of an individual’s rights under EU law and Article 19(1) TEU to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law [para 52]. It also suggests that the Directive has direct effect [para 54] and that it would be incompatible with the binding nature of Article 288 TFEU to exclude, in principle, the possibility of the obligation imposed by that Directive being relied on by the persons concerned [para 55]. That consideration applies particularly in respect of a Directive whose objective is to control and reduce atmospheric pollution and which is designed, therefore, to protect public health (see the prior Janecek judgment, paragraph 37).

Comments

The CJEU pulls out all the stops in this judgment to ensure that the seriousness of the consequences of breach of this Directive is taken into account by Member States. ClientEarth was thrilled with the ruling – its website cites air pollution as the cause of 29,000 deaths in the UK each year – the biggest health problem after smoking. It should be noted that, not only does the Court fill in the legislature’s gap by purposively reading into the Directive an obligation to apply for a postponement of the compliance deadline, but it also peppers the judgment with assertions of the absolute nature of this obligation. For example in paragraph 30, the Court asserts that, despite the different wording of obligations not to exceed value limits in relation to different chemicals, the wording relating to nitrogen dioxide (‘may not be exceeded’) is just as powerful as that relating to carbon monoxide (Member States are to ‘ensure’ that limit values are not exceeded), and that it too creates an absolute obligation to achieve a certain result.

As there is no express obligation to seek postponement, the UK’s question as to whether the fact that they had produced air quality plans was sufficient to comply with their general obligation under the Directive seems sensible. The Court came down hard on this however, stating that to bypass Article 22, the postponement article, and comply only with Article 23, the air quality plans article, would mean Member States would comply with less stringent conditions than those imposed by both Article 22 and Article 23. Read plainly, this seems to be possible, and the Court seems to be again asserting the implied obligation to apply for postponement in order to avoid the mischief of allowing Member States to bypass the postponement requirements. This is consistent with their previous answer, but the response highlights the Directive’s deficiencies – Article 22 seems to impose a maximum deadline of 5 years for compliance with value limits, whereas Article 23 allows for surpassing this deadline so long as plans setting out appropriate measures keeping the period of exceeding the limits as short as possible are established. It is unclear which time limits Member States must comply with, and it is unclear what the ramifications are for failure to comply.

Whatever the drafting problems with this Directive that gave way to possible wiggle room for the UK government to elude the obvious intention of the legislators may be, the judgment is a fantastic example of the force of purposive interpretation and of using every possible argument to condemn a Member States’ clear breach of laws endangering public health.  

 

Barnard & Peers: chapter 22

Rottmann Rules UK? Can British citizenship be taken away without regard to EU law?

 

Simon Cox*

Today the UK Supreme Court began grappling with the meaning and effect of the Rottmann judgment of the CJEU, which concerns the constraints placed by EU law on the loss of national citizenship. Counsel for the British Home Secretary argued that an interpretation of that judgment as applying beyond cross-border cases would take the CJEU beyond its competence. The Court questioned whether it could decide the application of Rottmann without first making a reference to the CJEU: an idea which the Government did not seriously oppose.

The case before the Court was brought by Vietnamese-born Mr Pham, known as B2 until he dropped his request for anonymity today. Acting under the British Nationality Act 1981 (BNA), the Home Secretary had deprived him of his British citizenship on national security grounds. Pham argued he had ceased to be a Vietnamese citizen. The Special Immigration Appeal Commission agreed and allowed the appeal under BNA provision preventing statelessness. The Court of Appeal disagreed, holding that Vietnam had not complied with it national law, and so Pham remained its citizen for purposes of the 1954 UN Statelessness Convention. The interpretation of that Convention is a key issue in the appeal.

EU law is also at stake. Aside from statelessness, Pham complained of his loss of EU citizenship under Article 20 TFEU. Pham relied on C-135/08 Rottmann to argue that this result meant the British deprivation decision could only be taken with due regard to EU law, in particular, proportionality.

That argument had been rejected by the Court of Appeal in a different case, R (G1) v Home Secretary [2013] QB 1008. Lord Justice Laws interpreted Rottmann to apply only to cross-border cases. Even more fundamentally, that court queried whether UK law would recognise the CJEU as having authority to alter the operation of the BNA.

G1 was refused permission to appeal from the Court of Appeal by the Supreme Court. Later, the Supreme Court gave Pham permission, including on the EU law point.

At today’s hearing, several judges queried with Pham’s barrister, Hugh Southey QC, whether the court needed to decide whether EU law applies. Would EU law proportionality give greater rights than British law proportionality?, Lord Reed wondered. British citizenship is akin to a fundamental right, so proportionality is required suggested Lord Neuberger. Lord Carnwath asked whether the BNA anyway required a decision to be proportional. Lord Sumption suggested that since a decision to deprive a person of British citizenship definitely does deprive them of EU citizenship, British public law may require the decision on the former to respect the legal approach to the latter.

Tim Eicke QC, counsel for the Home Secretary, accepted that the deprivation decision could only be upheld if it met the proportionality requirements of Article 8 of the European Convention of Human Rights. He argued that Rottmann proportionality would be no greater than those requirements. He did however accept that EU law may require greater disclosure of otherwise secret evidence than the European Convention on Human Rights (ECHR) would require. Pressed on ‘substantive’ proportionality, he conceded UK public law would be less protective than EU law.

Lord Reed and Lady Hale queried whether Article 8 ECHR family life rights would be as extensive as EU law rights of free movement. Mr Eicke argued that the Strasbourg judgment in Karassev v Finland, 12 January 1999, extends the ECHR’s reach to consideration of whether the loss of nationality breaches the Article 8 right to private life.

The court referred to Lord Justice Laws argument in G2 that British citizenship does not fall within the competence of EU law at all. Mr Southey replied that the question is one of interpretation of the EU Treaties.

Lord Mance quizzed Tim Eicke QC, counsel for the Home Secretary, about the effect of the adoption of subsequent EU treaties re-enacting old treaties.

The Open Society Justice Initiative had been given permission to intervene in the Pham case, and made a different EU law point in their written case. Relying on EU instruments conferring advantages on stateless persons, like Regulation 883/2004 (which regulates the coordination of social security for persons moving between Member States), they argued that statelessness is an autonomous concept of EU law. Pham’s argument about the meaning of statelessness could not be rejected unless the UK Court had first taken into account the EU law position. Since the CJEU had not yet interpreted the notion of statelessness, the Supreme Court would have to make a reference, they argued, unless they agreed with Pham under British law read alone.

The UK Government argued that, even if the case fell within the scope of EU law, the notion of statelessness was not an autonomous EU law concept, because it arises here only under the BNA, a British law.

While the hearing continues tomorrow, the Government’s submissions on EU law were largely made today.

Updated: hearing on Wednesday 19 November

Pham – Day 2 – Reference to the CJEU on the cards

The Pham hearing concluded today in Court 1 of the Supreme Court with a morning of oral argument, first from Home Office barrister Robin Tam QC, then a reply by Hugh Southey QC for Pham.

The seven-judge panel’s comments showed them weighing up two alternatives. To ask the CJEU what constraints, if any, EU law places on the procedure and substance of depriving Pham of his British citizenship? Or to dismiss the appeal without ruling on EU law, meaning the case would return to the fact-finding body – the Special Immigration Appeals Commission (SIAC).  The second option would see SIAC making findings on the alternative premises that EU law does, and does not, apply. If SIAC found that the difference in law would cause a difference in result in Pham’s case, a reference could then be made to the CJEU, by SIAC or on a further appeal.

The first option would be slow, pointed out the court. No-one thought the second option would be straightforward. Much of the discussion concerned Mr Pham’s right to know the British security service case that he is a threat to national security. Under the SIAC procedure, this is a crucial tool for appellants. Security service reluctance to disclose their arguments and evidence mean they may choose to abandon claims of terrorism rather than tell the appellant what they have been saying about him in secret. So a greater right to disclosure can mean the case is abandoned altogether.

The extent of legal duties to disclose has been closely fought in challenges to UK Government decisions. UK laws denying any right to disclosure were first weakened by the Court of Human Rights in A & Others v UK, holding that detention without trial could not be used if the gist or essence of the case were not disclosed to the detainee. In AF No 3, the UK’s highest court followed this reasoning in ‘control order’ cases. The CJEU addressed this in C-300/11 ZZ, ruling that an EU citizen facing exclusion from another EU state has a right to know the gist. However, in I.R. v UK Strasbourg rejected arguments that ECHR Article 8 requires the same disclosure.

Could Pham have more under the ZZ approach to EU law than under UK law, asked Lord Mance. Mr Tam conceded that he could: AF No 3 does not apply to citizen deprivation appeals. But even assuming EU law does apply to a citizen deprivation appeal, the UK Government did not accept that EU law would require a ZZ approach. (Rottmann speaks only of states ‘having regard to EU law’.)

All this showed SIAC would likely have a hard job to do without clarification of the basic question - does EU law apply – and, indeed, the further question – what does EU law require. Unsurprisingly, Mr Southey vigorously opposed the second option. A number of cases were left undecided – perhaps undecidable – by the current uncertainty, he suggested.

On Rottmann, Pham’s legal team argued that the language of the judgment showed that the competence invoked was citizenship (article 20 TFEU), not free movement (article 21), and pointed to the Ruiz Zambrano ruling. Mr Southey then addressed the Government’s fall back argument that the CJEU would overreach EU competence under Art 5 TEU by requiring EU law to be applied to deprivation of citizenship (except in free movement cases). He argued that the UK Parliament had made the CJEU the sole arbiter of EU competence. Section 3 of the European Communities Act 1972 requires the UK courts to follow rulings of the CJEU on EU law: EU competence is a question of interpretation of the EU Treaties. If the UK Government did not like a ruling of the CJEU, it must either persuade the other Member States to renegotiate the Treaties, or amend the European Communities Act.

Lord Mance suggested the Supreme Court could ask the CJEU whether it meant to go as far as it appeared to have done in Rottmann. Mr Southey accepted it could.

The Supreme Court reserved judgment, to be given at a later date.

*Simon Cox is the Migration Lawyer of the Open Society Justice Initiative and part of their legal team in their intervention in Pham

 

Barnard & Peers: chapter 13

Whatever it takes: the Advocate-General’s opinion on the EU’s unitary patent

 

Steve Peers

Today’s two opinions (see here and here) on the legality of the EU rules on the unitary patent would, if followed by the Court of Justice, finally make way for the EU’s patent plans to bear fruit. However, this would be at the cost of compromising some established principles of the EU legal order.

Background

The European Union (and previously, the European Community) have struggled for decades to agree on patent rules. Treaties between Member States on patents were signed in 1976 and 1989, but never came into force. A proposed EU Regulation was agreed in principle in 2003, but the deal was regarded as unworkable because of its translation requirements.

The Treaty of Lisbon, in force 2009, then created a specific legal base for the adoption of EU intellectual property rules (Article 118 TFEU). It provides for the main rules to be adopted by the ordinary legislative procedure (qualified majority voting in Council, joint power for the European Parliament). However, the languages rules, which apply to translations of the patent (or patent claims), must still be agreed by unanimity.

Discussions on a proposed EU patent were revived starting in 2008, and the rules on the patent were agreed by the time that the Treaty of Lisbon entered into force, except for the languages issue. Due to a deadlock on that point, most Member States eventually agreed to trigger the process of ‘enhanced cooperation’, ie adopting EU legislation that applied to some Member States, but not others.

The enhanced cooperation process is different from the specific opt-outs that some Member States have as regards EU economic and monetary union and justice and home affairs law. The relevant Treaty rules set out a two-step procedure. First, enhanced cooperation must be authorised by the Council (by a qualified majority vote of all Member States): this requires also a request by a group of Member States, a proposal by the Commission, and the consent of the European Parliament (EP). Secondly, the legislation to implement enhanced cooperation must then be adopted using whichever EU procedure would usually apply, with the exception that only the Member States participating in enhanced cooperation get to vote.

This process was applied first of all in 2010, to authorise a group of Member States to adopt EU rules on choice of law in divorce. That case was not controversial. Since the authorisation of enhanced cooperation as regards patents in 2011, the process has been used once more to date, to authorise a group of Member States to adopt a financial transaction tax. The UK challenged the latter decision, but the CJEU rejected its challenge this spring, essentially on the grounds that the UK was only challenging the legality of the substance of the planned tax. But that issue cannot not be raised, as long as the participating Member States have not yet adopted the EU law implementing enhanced cooperation as regards the tax (see the earlier discussion on this blog). Those Member States still haven’t adopted such a law; when and if they do, a second challenge by the UK is likely.  

Similarly, the EU patent legislation has been challenged at both steps of the enhanced cooperation procedure. The initial authorisation of enhanced cooperation regarding patents was challenged by both Spain and Italy, each of which objected to the languages rules in the planned legislation, which provided for the key translations to be in English, French and German only. They lost this initial legal challenge in 2013, when the CJEU ruled that the conditions for authorisation of enhanced cooperation were satisfied.

In the meantime, the participating Member States adopted two Regulations implementing enhanced cooperation in this area at the end of 2012: one of them concerns the substantive rules governing a ‘unitary patent’, while the other governs the language rules.  Spain (this time without Italy) challenged these measures in turn; those two challenges are the subject of today’s opinion.

The EU legislation on this issue is closely linked to two international treaties. First of all, the European Patent Convention, agreed in 1973, which binds all EU Member States and a number of non-Member States as well. That treaty sets up a legal framework for registering a patent in a number of European countries, by means of an application to the European Patent Office which it sets up. This results in a ‘European patent’, but the legal title concerned is not genuinely uniform, but depends on the national law of each of the countries where the patent is registered. The point of the EU legislation is to create a form of European patent that will have uniform existence in all of the participating Member States, also reducing the costs of translation that would otherwise apply.

The second treaty concerned is a treaty among Member States creating a Unified Patent Court, in order to reduce the costs of litigation concerning European patents and the planned unitary patent. (Although the CJEU had objected to aspects of these plans in its Opinion 1/09, Member States believe that they have addressed the Court’s concerns). That treaty will come into force once thirteen Member States, including France, Germany and the UK, have ratified it. So far five Member States have, including France (UK ratification is imminent). The application of the EU’s unitary patent law is dependent upon this treaty coming into force, and the unitary patents will only be valid in Member States which have ratified the treaty (all Member States except Spain, Poland and Croatia have signed it; all Member States except Spain, Italy and Croatia participate in the Regulations).

The opinion

Spain’s legal arguments against the two EU Regulations differ somewhat. As regards the main Regulation, Spain argues that it is invalid because it creates a unitary patent dependent upon the acts of the European Patent Office, whose acts are not subject to judicial review. Secondly, the Regulation does not create ‘uniform protection’ within the meaning of Article 118 TFEU. Thirdly, there is a ‘misuse of power’, ie enhanced cooperation has been used for a purpose other than the Treaties allow for. Next, the Regulation breaches the rules concerning the conferral of implementing power upon the Commission, because it gives power to the Member States to decide on issues such as renewal fees.

As regards the languages Regulation, Spain argues that the special status of the French, English and German languages is discriminatory. Also, it argues that there is no legal power for the EU to regulate language issues in the event of a dispute, as the Regulation does, and that the Regulation violates the principle of legal certainty.

In both cases, Spain argues that the rules on adopting implementing measures are invalid, since powers to implement EU law have been granted to a non-EU body, the European Patent Office. Also, it argues that making the application of the Regulations dependent upon the ratification of the treaty creating the unified patent court breaches the principle of the autonomy of EU law.

The opinion of Advocate-General Bot rejects all of these arguments. In his view, the main Regulation does create ‘uniform protection’, since it gives unitary status to a European patent that would otherwise be dependent upon different national laws. While the Regulation does refer back to national law, it does so as a form of (in effect) mutual recognition, ensuring that the national law governing each unitary patent governs the validity of that patent in other participating Member States. He does not believe that the argument regarding judicial review of the European Patent Office has merit.

Next, he argues that the EU legislature could confer power on issues such as renewal fees back to the Member States, rather than the Commission, since there was no need for uniform rules at EU level (which is when the Treaty requires implementing powers to be conferred upon the Commission) in this case.

As for the autonomy of EU law, he argues that the CJEU cannot review the validity of the treaty creating a unified patent court. It does not violate the autonomy of EU law to make the implementation of the Regulations dependent upon the entry into force of that Treaty, given the close link between the judicial system for patent protection and the patent system as a whole. Indeed, he suggests that the ‘principle of sincere cooperation’ set out in the Treaties requires Member States to ratify the treaty creating the separate court, in order to ensure that the unitary patent is effective. 

The translation rules are also acceptable. While it is discriminatory to confine translations to three languages only, it is not disproportionate in light of the need to ensure the cost-effectiveness of the patent. Finally, the Advocate-General argues that the principle of legal certainty is satisfied, since only one language version is authentic. 

Comments

In principle, this case is important because it raises questions about the substantive grounds governing the implementation of enhanced cooperation. However, in practice only the argument relating to discrimination touches upon those substantive issues. And furthermore, in this case the discrimination argument doesn’t concern the nature of enhanced cooperation as such: the languages argument could equally be made against an EU legal measure which applies to all Member States, but which allows for the use of a limited number of languages only. Indeed, such an argument was made (unsuccessfully) against the translation regime of the EU trademark (the Kik judgment), which differs from the EU patent because it puts Spanish and Italian on an equal footing with the other three languages.  It looks as if we might have to wait for the legal challenge to the future financial transaction tax before the substantive rules on enhanced cooperation are interpreted by the CJEU.

But while the opinion doesn’t have much to say about enhanced cooperation as such, it has a lot to say about other forms of unorthodox law-making by the EU institutions. While the details and the substantive rules are of course different, it’s clear that on this front, there’s a lot in common between the EU’s unitary patent rules and the recent developments regarding economic and monetary union. Admittedly, in the former case, the EU is trying to kick-start a major harmonisation project for the umpteenth time, whereas in the latter case, it is trying to save the flagship of European integration from sinking. But in both cases, it is resorting extensively to treaties outside the legal order, such as the treaty approved by the CJEU in its Pringle judgment, as well as differentiated integration within it. Equally, it is creating new rules for the EU institutions (such as the powers for the European Central Bank being challenged in the pending Gauweiler case), including the deferral of power to Member States or international bodies (approved here by the Advocate-General, in spite of the Kadi precedent in which the CJEU frowned on decisions being made for the EU by a committee of the UN Security Council).

As with economic and monetary union, EU patent law will therefore (if the Court follows the opinion) be established and survive in a sui generis environment, in which many of the usual rules which govern the EU legal order do not apply.  Time will tell whether these two areas of law remain the exception in this respect, or begin to become the rule.

Barnard & Peers: chapter 5

The new Directive on intra-corporate transferees: Will it enhance protection of third-country nationals and ensure EU competitiveness?

Lucia Brieskova, PhD candidate at Oxford Brookes University

This post sets the scene for the new EU directive in the area of legal labour (economic) migration - the Intra-Corporate Transfers Directive (ICTD) - in three sections: a) it explains why this Directive was introduced and its relationship with the other EU directives in the area of economic migration; b) it outlines the main novelties brought about by this Directive; and c) it highlights some of the potential issues. These potential issues will be further developed and analysed in the subsequent posts.

A.      BACKGROUND

The EU Commission introduced the Proposal for ICTD in July 2010 as a part of a comprehensive package of different measures, which were proposed in the Policy Plan on Legal Migration of 2005, the European Pact on Immigration and Asylum, (adopted in 2008) and further endorsed by the Stockholm Programme (adopted by the EU Council in December 2009), which called for the adoption of an overall European policy on migration. In addition, the Europe 2020 strategy contemplated that a well-structured legal immigration policy will have a role to play not only in filling shortages of the labour markets and enhancing the competitiveness of EU but also in helping to face demographic challenges which most of the Member States face or will face in the near future.

To be more specific, the 2005 Policy Plan on Legal Migration sketched out the EU Commission's vision on how a common policy on economic migration should be further developed by scheduling the adoption of several legislative proposals (directives) on economic migration between 2007 and 2009. As a result, the ICTD was adopted as a new legislative instrument of the EU common policy on legal migration. It complements three already existing Directives, also introduced as a result of the 2005 Policy Plan on Legal Migration:  the 2009 EU Blue Card Directive on highly qualified workers setting out the admission criteria for and the rights of highly qualified third country national (TCN) workers (discussed here), the 2011 Single Permit Directive on TCN workers legally residing in an EU Member States; and the 2014 Seasonal Workers Directive.

The EU Commission, backed up by some Member States in the Council, disagreed with the European Parliament as regards some issues, for example, the right of equal treatment of ICTs and the rights of their family members.  After lengthy negotiations (4 years), the text of the ICTD is a compromise between the EU Council and EU Parliament, where EU Parliament accepted a number of EU Council proposals, for instance in relation to the equality of treatment of ICTs. The EU Council adopted the ICTD on 13 May 2014, following a positive vote in the EU Parliament in April. The ICTD was published in the Official Journal of the European Union on 27 May 2014 and entered into force on 28 May 2014. Now the 25 participating EU Member States have 30 months to transpose this Directive (by 29 November 2016). As with other EU policies on legal migration of third-country nationals, the UK, Denmark and Ireland are opting out of this Directive.

It remains to be seen how the Member States will implement this Directive into their national legal systems and whether this Directive and its national implementation will contribute to or hinder the protection of TCNs within the EU and whether it will contribute to the enhancement of the EU’s competitiveness.

B.      NOVELTIES

So what is new in the EU legislation relating to the area of economic migration after the introduction of the ICTD? Firstly, it covers a group of TCN migrant workers not yet protected by any of the existing EU economic migration directives; secondly it provides for “mixed” set of rules as regards the equality of rights of ICTs; thirdly it creates a unique intra-EU mobility scheme for ICTs; and lastly it offers favourable rights for family members.

Aims, Scope & Eligibility

The aims of the ICTD are threefold: a) it should make it easier and quicker for multinational companies to temporarily assign highly skilled TCNs to subsidiaries situated in the Member States; b) it should facilitate intra-corporate transferees’ (ICTs) mobility between Member States during their transfer; c) it lays down a common set of rights for ICTs when working in the EU in order to avoid their exploitation and distortion of competition.

The ICTD will facilitate intra-corporate transfers of managers, specialists and trainee employees to the EU by setting up transparent and harmonised conditions for admission, residence and work. To be eligible for an intra-corporate transferee permit, managers and specialists must have worked at least 3 up to 12 uninterrupted months for the multinational company immediately preceding their transfer. For trainee employees this period is 3 to 6 uninterrupted months. Member States retain the right to set the volumes of admission of ICTs who apply to be admitted to their territory. The permit will be valid for a maximum of 3 years in the case of managers and specialists and 1 year for trainee employees.

The Directive also aims to have speedy application procedures with easily available information about the new ICT permit and fast-track application processes, with only complex cases taking the maximum 90 days allowed for review.

Equal Treatment Rights

The ICTD provides for equality of treatment rights with nationals of Member States as regards remuneration. The rationale for granting equal treatment with nationals to ICTS as regards remuneration is the aim of ensuring that companies established in a third country will not be able to benefit from lower labour standards, thereby distorting competition. Therefore, Member States must request, as a ground for admission, that the remuneration granted to the ICTs is not less favourable than the remuneration granted to nationals occupying comparable positions.

Under the provisions of the ICTD, the ICTs are to be treated on equal footing with another group of migrant workers – posted workers – as regards the terms and conditions of employment other than remuneration (such as maximum work periods or safety at work). This means that these terms and conditions of employment in the Member State to which the ICT will be transferred will be governed by the laws of his or her country of origin (the sending third country). According to the ICTD the reason for this is that the ICTD should not give undertakings established in a sending third country any more favourable treatment than undertakings established in an EU Member State, in line with Article 1(4) of the Posted Workers Directive (96/71/EC).

The ICTD also sets out a clear list of rights for ICTs in relation to freedom of affiliation to a trade union, recognition of diplomas, and access to public goods and services, except housing.

Lastly, equal treatment between ICTs and nationals applies to branches of social security, in practice, in particular to benefits related to sickness, invalidity and old-age. However, EU Member States can make an exemption where the national law or a bilateral agreement with the host Member State establishes that the laws of the country of origin of the ICT will apply. Also, Member States may decide not to grant family benefits to ICTs who stay less than 9 months in the EU.

Intra-EU Mobility Scheme

The intra-EU mobility provisions in the ICTD mean a significant and unique development in comparison with national systems which do not permit ICTs to work in subsidiaries established in another Member State. This is the first work permit that will allow TCNs, under certain conditions, to work in several Member States for entities belonging to the same group of undertakings. Responding to the strong mobility needs of this type of TCN migrant workers, ICTs are not required to obtain the Schengen visas. Subject to a number of conditions, they can enter, stay and work in the Member States other than the one to which they were initially admitted. The ICTD distinguishes between short-term (less than 90 days in any 180 day period) and long-term (more than 90 days) mobility.

Family Members’ Rights

During the negotiations the EU Parliament succeeded in including crucial provisions in the ICTD as regards the rights of family members of ICTs.  This was advocated for with a view to removing an important obstacle to accept an assignment in the EU, meaning that the family members of ICTs will be able to accompany the ICTs at the start of their assignment, if they apply at the same time. In addition, the family members are also entitled to be employed or self-employed in the host Member State throughout the duration of the ICT’s transfer.

C.      POTENTIAL ISSUES

It remains to be seen how Member States will implement the ICTD in their national laws in the next two years given that the ICTD only sets minimum standards and includes a number of optional (“may”) clauses. For some Member States, the implementation process will mean modifying visa procedures, whereas others Member States will have to construct an intra-corporate transfer process from scratch. The challenge will be making sure that each Member State agrees to very similar definitions and terms for visas, so that there is not a wide variation among them.

Moreover, one issue of particular concern is intra-EU mobility for ICTs, where the ICTD includes a number of optional requirements (“may” clauses) that Member States may impose and thus also different variants of the scheme for Member States to adopt, which could render the scheme rather complicated. Furthermore, the conditions for assignments lasting longer than 90 days are much stricter than those for short-term transfers lasting less than three months.

In addition, it would appear that the ICTD is likely to impede the wider principle of equal treatment that must be at the core of all EU legislation in the field of migration – TCNs should be treated on equal footing with nationals of Member States. The ICTD contains provisions, advocated for by the EU Council and opposed by the EU Parliament, by which TCN workers employed in the EU in the framework of the intra-corporate transfers would enjoy a protection of rights granted to posted workers. Thus, the equal treatment will be limited to the core provisions of the contentious Posted Workers Directive (PWD). This means that the legislation of the sending third country will be applicable rather than the legislation of the host EU Member State. It was reasoned that ICTs should not be treated more favourably than posted workers by granting ICTs rights equal to those of EU nationals, which would suggest that the ICTD assumes that intra-corporate transfers and postings of workers are of the same or similar character.

However, the ICTD and PWD belong to different legislative spheres. The postings of workers function within the EU single market in support of the provision of services, whereas the intra-corporate transfers are aimed at allowing multinational companies to efficiently utilise their human capital. It is possible to argue that these provisions of ICTD are likely to lead to the bypassing of the EU labour legislation and national labour protection, which was the case with the PWD (see the Laval judgment). Thus, the equal treatment of ICTs could be endangered as potentially laws from any sending third country may be applicable to their situation. Consequently, TCNs could be afforded less protection and be subjected to the different forms of exploitation.

Barnard & Peers: chapter 26

Is Free Movement in Europe an Anomaly? The New Open Borders Policy in South America

 

 

Dr Diego Acosta Arcarazo, Lecturer in Law at the University of Bristol, and member of the research project Prospects for International Migration Governance (MIGPROSP)

 

 

Free movement of people in the European Union (EU) is currently under attack by certain political and media sectors across Europe, with proposals arising on how to limit its scope. At the same time, other regions in the world are adopting free movement regimes. This is important to highlight as it allows us to demonstrate that the EU’s free movement regime is not an anomaly as its opponents often argue. It also enables us to compare how different regions function which can lead to ideas and proposals for refining legislation and policies. As such, current debates on the construction of a South American citizenship as well as the MERCOSUR Residence Agreement, effectively establishing an open border area in the region, deserve our attention in Europe.

 

Free movement of citizens in South America

 

In South America, instances of regional free movement can be traced back to at least the 1970s when one regional organisation, the Andean Community, sought to regulate the issue with little success. Free movement was also introduced to the agenda of MERCOSUR (another regional organisation created in 1991, now consisting of Brazil, Argentina, Paraguay, Venezuela and Uruguay, although Paraguay is currently suspended).

 

In 2002 the MERCOSUR Residence Agreement was adopted. Implemented in 2009, the Agreement’s main objective is dealing with the situation of intra-regional migrants and it has transformed the migration regime for South Americans. It provides that any national of a MERCOSUR or Associate Member State may reside and work for a period of two years in a host State. After two years, the temporary residence permit may be transformed into a permanent one if the person proves legitimate means of living for himself or herself and any family members. It also lays down a number of rights including the right to work and equal treatment in working conditions, family reunion or access to education for children. All countries in South America (ie, not just MERCOSUR countries) have ratified the agreement and apply it with the exception of Venezuela, where it is currently in discussion, and Surinam and Guyana where it is yet to be adopted.

 

Differences between the MERCOSUR Residence Agreement and the Directive on EU citizens

 

MERCOSUR’s Residence agreement differs from the EU’s free movement regime in various ways. First, there are differences in terms of who can move under both pieces of legislation. In contrast to the EU, where there is an obligation to be working or to prove sufficient resources in order to be able to reside in another Member State for longer than 3 months, citizens in South America may reside for up to two years by simply providing an identification document and proof of a clean criminal record for the previous five years. However, under the MERCOSUR agreement the burden is on the individual to prove that they are not a threat to public policy or security by producing such a clean criminal record. In Europe, by contrast, the responsibility lies with the national authorities to demonstrate that the person endangers public policy or public security of the State.

 

Second, there are also conceptual and implementation differences. Free movement of people does not constitute a fundamental freedom in South America. It is rather the result of an international treaty, the MERCOSUR Residence Agreement, for which there are no coercive intra-regional mechanisms to ensure implementation or impose sanctions for violations. In other words, MERCOSUR does not have a Commission capable of launching infringement proceedings or a Court of Justice having the final word on interpretation disputes. If disputes arise they are rather informally solved at the level of the MERCOSUR Migration Forum composed of government officials in charge of migration portfolios. This, in turn, leads to great variation regarding the implementation of the agreement, with some countries applying it without restrictions, e.g. Argentina or Brazil; others only implementing it for nationals of a reduced group of countries, e.g. Chile; and others still, such as Ecuador, imposing very high fees to obtain the residence permits (230 and 350 U.S. dollars for the temporary and permanent residence permits respectively – something which would not be possible in the EU). Finally, Uruguay implements it more generously and has recently adopted legislation by which nationals of MERCOSUR and Associate States will be able to directly obtain permanent rather than temporary residence, by simply proving their citizenship.

 

Also, the agreement is unclear in many aspects. It does for example grant a right to family reunification without establishing who are considered to be family members. It also provides equal treatment with regards to all social, economic and cultural rights, without however developing further such an important provision.  As is well known, these two issues have been and continue to be the subject of constant litigation at EU level. Finally, the agreement does not provide for any extra protection against expulsion for regional citizens, as it is the case in the EU. Moreover, if the individual concerned fails to transform his or her temporary residence permit into a permanent one after two years, his or her residence status falls outside the scope of the agreement and it is regulated by national law alone.

 

The future of citizenship in South America

 

The MERCOSUR Residence agreement is one of the various ongoing measures being proposed and adopted in South America towards the establishment of a new regional citizenship by 2020. Two other proposals for regional agreements at the MERCOSUR and Andean Community level would, if approved, grant further free movement rights not only to regional citizens but also to third-country national residents. This would go well beyond the EU’s current regime and would materialize the vision to extend free movement to extra-regional migrants, which has been long defended in Europe by scholars, NGOs, think tanks and certain MEPs.

 

Finally, South America’s liberal migration discourse during the last 15 years, as represented by the 2013 Buenos Aires declaration calling on the human right to migration, the recognition of migrants as subjects of Law and the rejection of any attempt to criminalize irregular migration, makes scrutinising these developments worthwhile, because of the potential policy lessons which may emerge in both directions and which may challenge established assumptions on how to regulate mobility.


Further reading on the topic:

1. D. Acosta Arcarazo and F. Freier, ‘Turning the immigration policy paradox up-side down? Populist liberalism and discursive gaps in South America’ (2014) International Migration Review.

2. D. Acosta Arcarazo and A. Geddes, 'Transnational Diffusion or Different Models? Regional Approaches to Migration Governance in the European Union and MERCOSUR’ (2014) 16 European Journal of Migration and Law 19-44.

 

 

In light of the Dano judgment, when can unemployed EU citizens be expelled?

 

Steve Peers

Yesterday’s important CJEU judgment in Dano concerned an application for access to benefits, not expulsion. So it has no direct impact upon the latter issue. Nevertheless, it is possible that the judgment has an indirect impact on that issue, due to the Court’s interpretation of the EU citizens’ Directive.

Earlier this year, I wrote a detailed blog post on the issue of when unemployment could justify expulsions and entry bans of EU citizens. The following supplements that analysis in light of the Dano judgment.   

Rules on expulsion

The bulk of the rules on expulsion (and also denial of entry or exit) appear in Title VI of the EU citizens’ Directive, Articles 27-33. These rules concern expulsions or entry bans on grounds of ‘public policy, public security or public health’. However, they can’t be used to justify expulsions or entry bans of unemployed people, because Article 27(1) says that they ‘shall not be invoked to serve economic ends’.

Having said that, the Directive clearly does allow for the expulsion of unemployed EU citizens and their family members.  Article 15(1) states that some of the procedural rules applicable to expulsion on grounds of public policy, et al, ‘shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security and public health’ (my emphasis). On the other hand, the Directive clearly rules out entry bans for such persons: Article 15(3) states that ‘Member States may not impose a ban on entry in the context of an expulsion decision’ within the scope of Article 15(1).   

So when exactly can EU citizens and their family members be expelled other than on grounds of public policy, et al? Article 14(4) says that ‘an expulsion measure may in no case be adopted’ against EU citizens or their family members who are workers or self-employed persons, or who entered the territory as job-seekers, provided that (in the latter case) the EU citizens ‘can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’. So Member States can expel job-seekers, provided that the job-seekers fail to meet that particular condition.

What about former workers or self-employed persons, ie those who have lost their job in the host State? Article 7(3) specifies that the status of worker or self-employed person (and therefore, presumably, the protection against expulsion) is retained in a number of cases, such as retraining, or if the worker has worked for at least a year. Earlier this year, the CJEU confirmed that the list of cases where this status is retained is non-exhaustive: it also applies, for instance, to those who quit work due to maternity, for a limited period (see my analysis of the Saint-Prix judgment). But Member States could clarify in their national law that the status of worker or self-employed person is lost in any case where the Directive or the case-law permits it to be lost.

It should also be mentioned that once EU citizens or their family members become permanent residents, due to five years’ legal residence, they have full equal treatment as regards social assistance and need no longer meet the conditions which apply to the initial right of residence. So it obviously follows that they cannot be expelled on grounds of unemployment.

Another important rule in the Directive is Article 14(3), which specifies that ‘an expulsion measure shall not be the automatic consequence of…recourse to the social assistance system of the host Member State’ by the EU citizen or family member.

The impact of Dano

A key element of the Dano ruling was the scope of the equal treatment rule in the Directive, which applies to social assistance. The Court ruled that the equal treatment rule only applied where a person had a ‘right to reside’ under the Directive, ie the right to stay for an initial three-month period without any conditions besides holding a passport, or for a longer period if they are a worker, self-employed person, student or have ‘sufficient resources…not to become a burden on the social assistance system’. In the latter two cases, they must also have medical insurance; students must submit a declaration as regards sufficient resources. It should be noted that according to the Court’s case law, ‘sufficient resources’ need not be generated by the EU citizen himself or herself, but could be provided by someone else, such as a family member.

Does the Court’s ruling mean that persons without a ‘right to reside’ under these provisions of the Directive have no protection against expulsion? The answer is absolutely not: the judgment does not in any way prevent such persons from relying on the protection set out in Articles 14 and 15.

Let’s look at the reasons why that’s the case. First of all, there’s the wording of the judgment itself: the Court states that its ruling applies ‘so far as concerns access to social benefits’, as regards the ‘equal treatment’ rules. The Court is careful to refer to equal treatment and social benefits throughout its ruling, rather than exclusion from the scope of the Directive entirely.

Secondly, there’s the wording of the Directive, which the Court relies on to justify its ruling. The right to equal treatment in Article 24(1) applies to ‘all Union citizens residing on the basis of the Directive’. But no such qualification applies to Articles 14(3), 15(1) or 15(3).

Thirdly, there’s the overall logic of the Directive. As regards Article 15(1) and (3) in particular, since those who qualify for a right to reside cannot be expelled on grounds other than public policy et al, those provisions would have no meaning unless they applied to people who don’t have a right to reside. Similarly, since an application for social assistance could mean that the EU citizen loses a right to reside, Article 14(3) would have little or no relevance unless it applied to those without such a right.

Finally, the Court of Justice already ruled that EU law rules on expulsion protected those who did not have a right to reside under the EU free movement rules that preceded the Directive, in the Commission v Netherlands case. In particular, the Court ruled that:

To exclude from the benefit of those substantive and procedural safeguards [on expulsion] citizens of the Union who are not lawfully resident on the territory of the host Member State would deprive those safeguards of their essential effectiveness.

Logically the same applies here. Indeed, the rules on expulsions on grounds of public policy et al are also not limited in scope to those who have a ‘right to reside’ under the Directive, other than Article 28(2), which applies only to those who have permanent residence. This wording suggests an a contrario reading of the rest of the rules on expulsion.  

Types of residence in another Member State

It may sound odd to say that parts of the Directive (such as the expulsion rules) can be invoked by all EU citizens, whereas other parts of the Directive (such as the equal treatment rules) can be invoked only by those who have a ‘right to reside’ under it. But there are other circumstances in which EU citizens reside in another Member State, even if there is not a ‘right to reside’ under the Directive.

One such case is where they are children of a former worker, or the parent carer of such children. In that case, they will sometimes have rights not under the Directive, but under the separate Regulation on the free movement of workers (see the Alarape judgment).

Secondly, they might also have the right to reside under national law, but not EU law (see the Ziolkowski judgment), although their right to claim equal treatment as regards social assistance in such cases (developed since the judgment in Martinez Sala) seems to have been implicitly overruled by the Dano judgment, which links such equal treatment to the right to reside under the Directive only.

Thirdly, they might be residing irregularly on the territory of the host Member State.

Finally, they might have a child who has the nationality of the host State, due to a prior relationship with a national of that State. In that case, the interesting question arises whether there might be a parallel with the Ruiz Zambrano judgment, in which the Court ruled that the third-country national parent of an EU citizen child could not be expelled, since that would de facto result in the removal of an EU citizen from the territory of the EU. Could an analogous rule apply to the de facto removal of a national of the home Member State to the territory of another Member State? Or would that be unobjectionable, since the child in question would still, as an EU citizen, remain within the territory of the Union?

We can look forward to some interesting jurisprudence from the Court of Justice.

 

Barnard & Peers: chapter 13, chapter 16