A lost opportunity for improving access to justice in environmental matters: the CJEU on the invocability of the Aarhus Convention

 

 

Dr. Apolline J. C. Roger, Senior Teaching Fellow in EU environmental law, University of Edinburgh Law School.

 

The right of access to justice provides environmental NGOs and citizens with a safeguard: the capacity to challenge the final decisions of public authorities when they have an impact on the environment and environmental health. By becoming Party to the Aarhus Convention on access to justice, public participation, and access to information in environmental matters in February 2005, the EU recognised that access to justice is an essential guarantee of good governance and a crucial component of the human right to a healthy environment.

 

However, the EU has always been reluctant when it comes to the direct challenge of its acts by citizens and NGOs. It is therefore not surprising that NGOs tried to challenge the adequacy of the EU’s system of legal remedies in light of the Convention’s provision on access to justice (Article 9(3)). In a judicial saga where the General Court was ultimately overruled, the Court of Justice avoided assessing whether the EU effectively ensures the right of access to justice in environmental matters by refusing to recognise the direct effect of Article 9(3) of the Aarhus Convention.

 

The complexity of the EU’s system of legal remedies: the genesis of the saga

 

The EU’s system of legal remedies gives Environmental NGOs (ENGOs) a specific procedure for reviewing each type of EU act in environmental matters. However, the procedures available are not of equal quality.

 

EU legislative acts and EU administrative acts of general scope which entail implementing measures can be challenged indirectly. It means that the CJEU can be asked to review their legality, but only by a national court in front of which this question was raised (according to the preliminary ruling procedure, Article 267 TFEU). However, an ENGO intending to use this procedure to challenge an EU act will be facing several obstacles. First, they must wait for a national measure to be taken (which can take a long time). Then, they may only access national courts if national law grants them standing rights (which is not a given). Finally, if these two obstacles are overcome, ENGOs must convince the national courts that a reference to the CJEU is necessary (which is far from automatic). For all of these reasons, the indirect challenge of EU acts does not offer the same certainty and efficiency as a direct judicial or administrative review procedure.

 

EU general administrative acts which do not entail implementing measures can be directly challenged by ENGOs before the CJEU. Finally, the last category of EU acts consists of EU individual administrative acts. They can be directly challenged before the CJEU, but only by their recipient (Article 263 TFEU).

 

Therefore, NGOs’ right of access to justice suffered from two severe limitations. First, they do not have any possibility to directly challenge EU administrative acts which entail implementing measures. Second, they cannot challenge EU individual acts unless they are the recipient of those acts (which is rarely the case). Are these limitations breaching Article 9(3) AC? Under Article 9(3), the Parties to the Aarhus Convention do not necessarily have to provide NGOs with a judicial procedure. However, when it is the case, Parties have to create a procedure of “internal review” (also called “administrative review”).

 

In an effort to implement the Aarhus Convention to the EU’s institutions and bodies, the EU did create an internal review procedure in environmental matters, in Article 10 of Regulation n°1367/2006 "Aarhus Regulation" or "AR". However, Article 2(1)(g) AR severely constrains the internal review procedure scope by defining an “administrative act” as “any measure of individual scope”.

 

In order to compensate for the deficiencies of the preliminary ruling procedure identified above, should the internal review set in Article 10 AR be extended to EU general administrative acts which entail implementing measures? Should Article 10 AR be extended even further to all EU general administrative acts, with or without implementing measures? Unsurprisingly, the European Courts were asked to answer these questions and therefore to evaluate the compliance of the EU’s system of legal remedies with Article 9(3) AC.

 

The General Court in T-396/09 and T-338/08: the EU’s system of legal remedies breaches the Aarhus Convention provision on access to justice

 

ENGOs quickly tried to obtain from the Commission a review of its decisions of general scope under Article 10 AR. The Commission rejected their requests, reminding that the Aarhus Regulation Article 2(1)(g) opens the procedure against individual acts only.  The unsuccessful ENGOs challenged these decisions in T-396/09 and T-338/08, claiming that Article 9(3) of the Aarhus Convention requires an extension of Article 10 AR to all EU administrative acts, including those of general scope. The General Court granted their request.

 

To support its position, the Court reminded that Article 9(3) has to be interpreted in light of the Convention’s objectives. The Convention aims at making access to justice a tool to ensure the quality of environmental decision-making process by empowering NGOs and citizens. It also promotes it as a fundamental pillar of the right to a healthy environment. Broad access to justice should therefore be ensured.

 

However, as the Court observed, most of the EU executive acts in environmental matters have a general scope. As a consequence, an internal review which is limited to individual acts has a minor effect on the improvement of access to justice. Finally, the General Court noted that Article 9(3) of the Convention does not leave the Parties free to choose which acts should be easily challengeable by NGOs and citizens. The only acts not covered by Article 9(3) AC are the acts adopted by institutions acting in a judicial or legislative capacity. The general acts adopted by the Commission within its executive powers are covered by the Convention, and thus should be easily challengeable, meaning that they cannot be excluded from the scope of Article 10 AR.

 

In 2008, the Aarhus Convention Compliance Committee humbly reminded the EU that “the system of preliminary review does not amount to an appellate system with regard to decisions, acts, and omissions by the EU institutions and bodies” and does not “in itself meet the requirements of access to justice in Article 9 of the Convention”. The lack of a direct judicial procedure should be “fully compensated for by adequate administrative review procedures”. The General Court took heed of this reminder by complementing the preliminary ruling with a direct procedure: the internal review. However, by not distinguishing between general administrative acts which entail implementing measures and those that do not, the Court submitted the latter to two direct review procedures – one administrative, one judicial.

 

This indistinct broadening of Article 10 AR has advantages and disadvantages. On the plus side, it might have appeared as more respectful of the CJEU’s unshaken support of the preliminary ruling procedure as a sufficient way to access justice. Indeed, if the General Court had extended Article 10AR’s scope only to the EU administrative acts not directly challengeable, it would have explicitly recognised the shortcomings of the preliminary ruling procedure. On the other hand, the decision to broaden Article 10AR scope to all EU administrative acts created a higher risk to be overruled – a risk which materialised in January 2015.

 

The General Court overruled by the CJEU: a missed opportunity for access to justice at the EU and national levels

 

The CJEU overruled the General Court’s decisions in the joint cases C-404/12 P & C-405/12 P and C-401/12 P to C-403/12 P. The CJEU did not assess the adequacy of the EU system of legal remedies. It simply rejected the invocability of Article 9(3) of the Convention by considering that the conditions under which the indirect and the direct effect of an international provision can be recognised were not met. Therefore, the legality of Regulation 1367/2006 Article 10 could not be reviewed against Article 9(3) AC; the internal review remains available against individual acts only.

 

The joint cases C-404/12 P & C-405/12 P and C-401/12 P to C-403/12 P are, as the Jego-Quéré/UPA saga was (see C-50/00 UPA), a missed opportunity to improve access to justice at EU level. One could answer that courts should not go against the legislative will as expressed by the regulation’s wording – here Article 2(1)(g) AR. However, that would not have been the first time that the Court would have engaged in ambitious judicial interpretation. Furthermore, the legislator also expressed the will to commit to the Aarhus Convention and to guarantee the access to justice as a fundamental pillar of the human right to a healthy environment. The judicial path could have been a smooth way to reconcile the conflicting views carried by the Aarhus Convention and the restrictive scope of Article 10 AR.

 

Furthermore, the impact of this missed opportunity on access to justice goes beyond the EU level. Access to justice in environmental matters is indeed far from being equally and efficiently ensured in all Member States. Accepting to review the Aarhus regulation in light of Article 9(3) AC could have been an incentive for the national courts to review the standing rights granted by national law in light of the Convention.

 

Finally, the Court seems to have developed two different standards for access to justice at the EU and national levels. On one hand, the CJEU strongly pushes the national courts to broaden access to justice, as shown by its decision in Case C-240/09 (the ‘Slovakian bears’ case). On the other hand, the Court does not seem ready to follow the guidance it gave to national courts in C-240/09: “it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law”. The preliminary ruling procedure makes it excessively difficult for ENGOs to exercise their right to access to justice. The internal review procedure offers an adequate alternative, which does not threaten the Courts with an overwhelming wave of cases. Finally, internal review procedures are truly adapted to environmental issues considering their preventive nature.

 

By refusing to broaden the scope of Regulation 1367/2006 Article 10, the CJEU rejected an easy fix for the inadequacy of the EU’s system of legal remedies.

 

Image: www.foe.scotland.org.uk

 

Barnard & Peers: chapter 22

Bringing the Panopticon Home: the UK joins the Schengen Information System

 

Steve Peers

Over two hundred years ago, British philosopher Jeremy Bentham devised the concept of the ‘Panopticon’: a prison designed so that a jailer could in principle watch any prisoner at any time. His theory was that the mere possibility of constant surveillance would induce good behaviour in prison inmates. In recent years, his idea for a panopticon has become a form of shorthand for describing developments of mass surveillance and social control.

The EU’s forays in this area began with the creation of the Schengen Information System (SIS) in the 1990s. The SIS is a well-known EU-wide database containing enormous amounts of information used by policing, immigration and criminal law authorities.  

Until now, the UK has not had any access to the SIS. But this week, the EU Council finally approved the UK’s participation in the System, thereby linking the EU’s most iconic database with the intellectual home of the panopticon theory. What are the specific consequences and broader context of this decision?

Background

The main purpose of the Schengen system is to abolish internal border checks between EU Member States, as well as some associated non-EU States.  At the moment, the full Schengen rules apply to all EU Member States except the UK, Ireland, Cyprus, Romania, Bulgaria and Croatia. Those rules also apply to four associates: Norway, Iceland, Switzerland and Liechtenstein.

All of the Member States are obliged ultimately to become part of the Schengen system, except for the UK and Ireland. Those two Member States negotiated an exemption in the form of a special Protocol at the time when the Schengen rules (which originated in the Schengen Convention, ie a treaty drawn up outside the EU legal order) were integrated into the EU legal system, as part of the Treaty of Amsterdam (in force 1999).

The UK and Ireland are not entirely excluded from the Schengen system. In fact, they negotiated the option to apply to join only some of the Schengen rules if they wished. Their application has to be approved by the Council, acting unanimously. The UK and Ireland essentially chose to opt in to the Schengen rules concerning policing and criminal law, including the SIS, but not the rules concerning the abolition of internal border controls and the harmonisation of rules on external borders and short-term visas.

The UK’s application to this end was approved in 2000 (see Decision here), and Ireland’s was approved in 2002 (see Decision here). But in order to apply each Decision in practice, a separate subsequent Council decision was necessary, because the Schengen system cannot be extended before extensive checks to see whether the new participant is capable of applying the rules in practice.  On that basis, most of the Schengen rules which apply to the UK have applied from the start of 2005 (see Decision, after later amendments, here). The exception is the rules on the SIS, which the UK was not then ready to apply. After spending considerable sums trying to link to the SIS, the UK gave up trying to do so, on the basis that the EU was anyway planning to replace the SIS with a second-generation system (SIS II). There’s a lot of further background detail in the House of Lords report on the UK’s intention to join the SIS (see here), on which I was a special advisor. (Note that Ireland does not apply any of the Schengen rules in practice yet).

It took ages for the EU to get SIS II up and running, and it finally accomplished this task by April 2013 (see Decision here). The UK had planned to join SIS II shortly after it became operational, but this was complicated by the process of opting out of EU criminal law and policing measures adopted before the entry into force of the Treaty of Lisbon, and simultaneously opting back in to some of them again, on December 1^st 2014 (see discussion of that process here). This included an opt back in to the SIS rules.

Once that particular piece of political theatre concluded its final act, the EU and the UK returned to the business of sorting out the UK’s opt in to SIS II in practice. This week’s decision completed that process, giving the UK access to SIS II data starting from March 1^st. The UK can actually use that data, and enter its own data into the SIS, from April 13^th.

Consequences

What exactly does participation in the SIS entail? The details of the system are set out in the 2007 Decision which regulates the use of SIS II for policing and criminal law purposes. There are also separate Regulations governing the use of SIS II for immigration purposes and giving access to SIS II data for authorities which register vehicles. The former Regulation provides for the storage of ‘alerts’ on non-EU citizens who should in principle be denied a visa or banned from entry into the EU, while the latter Regulation aims to ensure that vehicles stolen from one Member State are not registered in another one. The UK participates in the latter Regulation, but not the former, since it could only have access to Schengen immigration alerts if it fully participated in the Schengen rules on the abolition of internal border controls. On current plans, this will happen when hell freezes over.

The SIS II Decision provides for sharing ‘alerts’ on five main categories of persons or things: persons wanted for arrest for surrender or extradition purposes (mainly linked to the European Arrest Warrant); missing persons; persons sought to assist with a judicial procedure; persons and objects who should be subject to discreet checks or specific checks (ie police surveillance); and objects for seizure or use as evidence in criminal proceedings. There are also rules on the exchange of supplementary information between law enforcement authorities after a ‘hit’. For instance, if the UK authorities find that a European Arrest Warrant has been issued for a specific person, they could ask for further details from the authority which issued it.

On the other hand, the SIS does not, as is sometimes thought, provide for a basis for sharing criminal records or various other categories of criminal law data, although the EU has set up some other databases or information exchange systems dealing with such other types of data. (On criminal records in particular, see my earlier blog post here). The main point of setting up the second-generation system was to extend the SIS to new Member States (although in the end a new system wasn’t actually necessary for that purpose), and to provide for new functionalities such as storing fingerprints, which will likely be put into effect in the near future.

In practice, the UK’s participation in SIS II is likely to result in the Crown Prosecution Service receiving more European Arrest Warrants (EAWs) to process, and in more efficient processing of EAWs which the UK has issued to other Member States. It will also be easier, for instance, to check on whether a car or passport stolen in the UK has ended up on the continent, or vice versa.

Broader context

As noted already, while the UK is only now joining the SIS, the System has been around for many years, and has proved to be the precursor of many EU measures in this field. Indeed, as EU surveillance measures go, the SIS turned out to be a ‘gateway drug’: the friendly puff that led inexorably to the crack den of the data retention Directive.

Of course, interferences with the right to privacy can be justified on the basis of the public interest in enforcement of criminal law and ensuring public safety – if the interference is proportionate and in accordance with the law. Compared to (for instance) the data retention Directive and the planned passenger name records system, the SIS is highly targeted, focussing only on those individuals involved in the criminal law process, or police surveillance, or banned from entry from the EU’s territory. The legitimacy of the system therefore depends upon the accuracy and legality of the personal data placed in to it, and the connected data protection rules. On this point, the EU and national data protection supervisors have reported that many data subjects do not even know about the data held on them in SIS II, and they have produced a guide to help them with accessing their data in the system.

There’s an inevitable tension between the EU’s goal to set the world’s highest data protection standards, on the one hand, while also developing multiple huge databases, information exchange systems and surveillance laws, on the other.  It’s as if the brains of the utilitarian Jeremy Bentham and the libertarian John Stuart Mill were both battling for control of the same body – forcing it to draw up plans for the Panopticon at the same time as it was storming the Bastille. If this tension manifested itself in fiction, it would probably take the form of a comedy about a vegetarian butcher, or a virgin porn star. But the need to ensure that measures to protect our security do not remove all our liberty is not a laughing matter.

 

*This blog post is linked to ongoing research on the upcoming 4^th edition of EU Justice and Home Affairs Law (forthcoming, OUP).

 

Image credit: nytimes.com

Barnard & Peers: chapter 25

Rights, remedies and state immunity: the Court of Appeal judgment in Benkharbouche and Janah

Steve Peers

Yesterday’s important judgment in Benkharbouche v Sudan and Janah v Libya by the Court of Appeal raised important issues of public international law, the ECHR and the EU Charter of Fundamental Rights, and demonstrated the relationship between them in the current state of the British constitution. The case involved two domestic workers bringing employment law complaints against the respective embassies of Sudan and Libya, which responded to the complaints by claiming state immunity, based on a UK Act of Parliament (the State Immunity Act) which transposes a Council of Europe Convention on that issue.

The question is whether invoking state immunity for these employment claims amounted to a breach of human rights law, given that Article 6 of the ECHR (the right to a fair trial) guarantees access to the courts, according to the case law of the European Court of Human Rights (ECtHR). In turn, this raised issues of EU law, given that Article 47 of the EU Charter of Fundamental Rights likewise guarantees the right to a fair trial, and some of the claims concerned EU law issues (the race discrimination and working time Directives). (Other claims, such as for ordinary wages and unfair dismissal, were not linked to EU law). The two cases didn't concern human trafficking or modern slavery, although sometimes embassies are involved in such disputes too. But they would be relevant by analogy to such disputes, and there would also be a link to EU law in such cases, since there is an EU Directive banning human trafficking, which the UK has opted in to. 

The Court of Appeal, essentially following the prior judgment of the Employment Appeal Tribunal, made a careful study of recent ECtHR case law, concluding that state immunity could no longer be invoked against all employment law claims, but only against those claims concerning core embassy staff. This could not apply to domestic workers; Ms. Janah’s tasks did not involve (for instance) shooting any British policewomen.

But what was the remedy for this breach of human rights principles? At lower levels, the tribunals had been powerless to rule on the claims for breach of the ECHR, since the UK’s Human Rights Act awards the power to issue a ‘declaration of incompatibility’ that an Act of Parliament breaches the ECHR to higher courts only. So the Court of Appeal was the first court that could issue such a declaration, and it did so in this case. (The Court concluded that it could not ‘read down’ the relevant clauses in the State Immunity Act to interpret them consistently with the ECHR).

However, as compared to the effect of EU law, even a declaration of incompatibility with the ECHR is relatively weak, given that the potential remedy for a breach of EU law is the disapplication of national law, even Acts of Parliament if necessary, by the national courts. So the Court of Appeal also ruled that the relevant provisions of the State Immunity Act had to be disapplied, to the extent that they were applied as a barrier to the claims based on EU law. On this point, the Court was following the Employment Appeal Tribunal, which had also ruled to disapply the Act, given that any level of national court or tribunal has the power to disapply an act of parliament if necessary to give effect to EU law.

If I had a pound for every law student who has confused the remedies in UK law for the breach of EU law with the remedies for the breach of the ECHR, I would be very rich indeed. Fortunately, the facts of this case easily demonstrate the distinction between them. Only the higher courts could even contemplate issuing a declaration of incompatibility with the ECHR; and the remedy of disapplication of the Act of Parliament is obviously stronger than the declaration of incompatibility, allowing the case to proceed on the merits (as far as it relates to EU law) rather than having to wait for Parliament to change the law in order to do so. And equally, the case shows the importance of the requirement that a case has to be linked to EU law in order for the Charter to apply: only the race discrimination and working time claims benefit from the disapplication of provisions of the Act of Parliament, and so only those claims can proceed to court as things stand.

From an EU law perspective, the most interesting point examined by the Court of Appeal was the application of the ‘horizontal direct effect’ of Charter rights, ie the application of EU law against private parties (since non-EU States aren’t bound by EU law as States, the court assimilated them to private parties). In its judgment last year in AMS (discussed here), the CJEU distinguished between those Charter rights which could give rise to a challenge against national law based on the principle of supremacy of EU law, and those Charter rights which could not, since they were too imprecise to base a free-standing Charter claim upon. The right to non-discrimination on grounds of age fell within the former category, whereas the right of workers to be consulted and informed fell within the latter category. (Note that the CJEU case law classifies this as an application of the principle of supremacy, not horizontal direct effect, although the final outcome is the same no matter how the principle is classified, at least in cases like these).

The Court of Appeal reaches the conclusion that Article 47 of the Charter is also a provision which is precise enough to be used to challenge national legislation. That’s an important point, since Article 47 is a far-reaching and frequently invoked provision, and applies not just to state immunity issues but to many broader issues concerning access to the courts (including legal aid) and effective remedies.  For that reason, this judgment is an important precedent for national courts across the European Union faced with challenges to national laws based on Article 47 of the Charter, although of course it doesn’t formally bind any court besides the lower courts of England and Wales.

The Court didn’t need to rule on whether the substantive Charter rights raised by these cases would have the effect of disapplying national law, since it wasn’t ruling on the merits of the cases, but only on the issue of access to court. If it were ruling on the substantive issues, it would seem obvious that race discrimination claims have the same strong legal effect as age discrimination claims, as both claims are based on the same provision of the Charter (Article 21). However, claims based on breach of Article 31 of the Charter (the working time provision) might not have that strong legal effect. Indeed, an Advocate-General’s opinion in the pending case of Fennoll has concluded as much.

Furthermore, the social rights in the Charter (such as the rights set out in Article 31) are subject to a special rule in the Protocol to the EU Treaties which attempts to limit the effect of the Charter in the UK and Poland. The CJEU ruled in its NS judgment that this Protocol does not generally disapply the Charter in the UK, but it did not then rule if the Protocol might nonetheless affect the enforceability of social rights. Given that yesterday’s judgment was about Article 47 of the Charter, not about a substantive social right, it was not necessary for the Court of Appeal to grasp this nettle either.

Barnard & Peers: chapter 9, chapter 20

Ending the exploitation of seasonal workers: EU law picks the low-hanging fruit

 

Steve Peers

For a long time, it proved impossible for the EU to agree on legislation on migrant workers coming from non-EU countries. Eventually, the Member States were able to agree on some laws that mostly concerned higher-income migrants: the Blue Card Directive (on its implementation, see here) and the Directive on intra-corporate transferees (see discussion here). The EU has also adopted some general rules on the overall framework for admission of labour migrants (the so-called single permit Directive).

But for the first time last year, the EU also adopted rules on a less well-paid group of migrant workers: seasonal workers. This group of workers is potentially particularly vulnerable to exploitation and abuse. Does the recent Directive go far enough to protect them from these risks?

Content of the Directive

Member States have to apply this Directive by 30 September 2016, and the UK, Ireland and Denmark opted out of it. It is limited in scope to those who normally reside outside the territory of the EU, and who apply to be admitted as seasonal workers, or who have already been admitted under the terms of the Directive. Also, it applies to those admitted for less than three months as well as those admitted for a longer period. For the former group, the Directive specifies that the EU’s borders and visas legislation continues to apply, and makes a number of cross-references to those measures. Furthermore, the Directive does not apply to those workers who are usually employed in other Member States, and who are ‘posted’ by their employers to work in a second Member State, to non-EU family members of EU citizens, and to non-EU citizens covered by an agreement which extends free movement rights (the EEA or EU/Swiss treaties).

A ‘seasonal worker’ is a worker who normally resides outside the EU, and who lives temporarily in the EU to ‘carry out an activity dependent on the passing of the seasons’, pursuant to a fixed-term contract concluded directly with an employer established in a Member State. The concept of a seasonal activity is in turn defined as an ‘activity that is tied to a certain time of the year by a recurring event or pattern of events linked to seasonal conditions during which required labour levels are significantly above those necessary for usually ongoing operations.’ Member States have to define what the relevant sectors are; the preamble refers to tourism, agriculture and horticulture as areas where seasonal work is usually needed.

Member States are free to set higher standards for certain issues (procedural safeguards, accommodation, workers’ rights and facilitation of complaints), but otherwise the Directive has set fully harmonised rules. So Member States can’t alter the substantive grounds for admission or the rules on duration of stay and re-entry.

The key criteria for admission are fully mandatory. Member States have to ensure that an application to enter as a seasonal worker is accompanied by: a valid work contract or binding job offer, setting out all of the details of the job; a valid travel document (possibly valid for the entire duration of the seasonal work); evidence of having, or having applied for, sickness insurance (unless such coverage comes with the work contract); and evidence of having accommodation, as defined in the Directive (see below). Member States have to check that the seasonal worker has sufficient resources not to have to use the social assistance system, cannot admit persons considered to pose a threat to public policy, public security or public health, and must check that the applicant does not pose a risk of illegal immigration and intends to leave the Member States’ territory when the authorization for seasonal work expires.

Applications have to be rejected whenever these conditions are not met, or where the documents presented with an application are ‘fraudulently acquired, or falsified, or tampered with.’ Member States also have to reject applications, ‘if appropriate’, where there has been a prior sanction against the employer for ‘undeclared work and/or illegal employment’, the employer is being wound up or has no economic activity, or the employer has been sanctioned for breach of the Directive.

Otherwise the grounds for refusal of an application are optional: a labour market preference test for home State citizens, other EU citizens or third-country nationals lawfully residing and forming part of the labour market; the application of Member States’ rules on volumes of admission of third-country nationals; or breaches of employment law by the employer, the use of seasonal work to replace a full-time job, or a prior breach of immigration law by the would-be worker. There are similar provisions on withdrawal of the authorisation to work as a seasonal worker, although it should be noted that Member States can withdraw authorization if the worker applies for international protection.

As for the admission procedure, Member States have to make information available on the conditions of entry and residence and rights, as well as the admission process. It’s up to Member States to decide whether the applicant or the employer makes the application, and the application process takes the form of a single application procedure for a combined work/residence status. Those applicants who fulfil the admission criteria and who do not fall foul of the grounds for refusal must be granted a permit or visa, in the format of the EU standard visa or residence permit.

There’s a total maximum limit of between five and nine months per calendar year of residence for a seasonal worker; they must then return to a third country. Since the Directive only regulates admission and stay of seasonal workers, it should follow that Member States still retain discretion to permit the worker to stay for longer on some other ground.

Within the maximum time limit, seasonal workers will be able, on one occasion, to change employers or to obtain an extension of their stay with their employer, if they still meet the criteria for admission, although the grounds for refusal will still apply. The preamble makes clear that this possibility is intended to avoid abuse, since the worker will not be tied to a single employer. Member States will have an option to allow further extensions or changes of employer. But again they can punish any worker who applies for international protection, by refusing to extend that worker’s stay.

Next, the Directive facilitates the re-entry of seasonal workers who were admitted at least once within the previous five years, if they complied with immigration law during their stay. This could include a simplified application process, an accelerated procedure, priority for previous seasonal workers, or the issue of several seasonal worker permits at the same time. The idea is to give an incentive to workers to comply with immigration law.

Member States have to impose sanctions against employers who have breached their obligations under the Directive, including a possible ban on employing seasonal workers. If seasonal workers’ permit to work is withdrawn because of the employer’s illegal behaviour, the employer must compensate the employees for all the work they have done or would have done. There are specific rules on the liability of sub-contractors.

Moving on to procedural safeguards, the Directive provides for: a notified decision in writing within ninety days of the application; special rules on the renewal of authorization; a chance to provide additional necessary information within a reasonable deadline; and a requirement that a rejection (or withdrawal or non-renewal of a permit) be issued in writing and open to a legal challenge, with information on the reasons for the decision, the redress available, and the relevant time-limits. Member States may charge fees for applications, if they are not disproportionate or excessive, and may require employers to pay the costs of workers’ travel and sickness insurance. Workers’ accommodation must ensure an ‘adequate’ standard of living, rents cannot be excessive, a contract for housing must be issued, and employers must ensure that accommodation meets health and safety standards.

As for the rights of seasonal workers, first of all they have the right to enter and stay on the territory of the relevant Member State, free access to the territory of that Member State, and the right to carry out the economic activity which they have been authorized to take up.  Furthermore, they have the right to equal treatment with nationals as regards terms of employment (including working conditions), freedom of association, back payments, social security, the transfer of pensions, access to goods and services available to the public (except housing), employment advice (on seasonal work), education, and recognition of diplomas, and tax benefits. However, equal treatment can be restricted as regards family benefits, unemployment benefits, education and tax benefits, and Member States are still free to withdraw or to refuse to renew the permit in accordance with the Directive. Finally, Member States must ensure monitoring, assessment, and inspections, and facilitate complaints workers or by third parties supporting or acting on their behalf.

Comments

According to its preamble, the intention of this Directive is to regulate the admission of seasonal workers with a view to enhancing the EU’s economic competitiveness, optimizing the link between migration and development, while guaranteeing decent working and living conditions for the workers, alongside incentives and safeguards to prevent overstaying or permanent stay. In principle it has achieved some of these goals, in particular by including a number of provisions to ensure equal treatment and decent accommodation for seasonal workers, to punish employers who mistreat workers or who breach immigration law, and to guarantee that the rules in question are enforced.

In fact the Directive was significantly improved on these points during the legislative process, in particular as regards monitoring and punishment of dodgy employers, accommodation standards, equal treatment (which was significantly extended in scope), employees’ costs, and remedies against employers (compare the final Directive to the original proposal). Doubtless this was largely due to the hard work of NGOs which raised these issues (see their joint statement here). Perhaps the EU should use this Directive as a template to try and address the exploitation of other vulnerable groups of migrant workers – for instance domestic workers, who are at particular risk of being enslaved or trafficked.

Having said that, there are some limits to what Member States were willing to agree. There are exceptions from the equal treatment rule, and some of the provisions on dodgy employers, as well as the ban on passing costs along to the workers, are optional, not mandatory. (See the comments on the final Directive by a group of NGOs here). The right to change employers is subject to conditions, and Member States might decided to allow only one such change. More broadly, while the provisions on enforcement are stronger than what Member States are usually willing to agree to in EU laws about migrant labour (or indeed EU employment law), it remains to be seen how much resources Member States are actually willing to expend on enforcement in practice.

Furthermore, since the Directive is limited in scope to those who are not yet on the territory, it can do nothing to alleviate the position of those who are present without authorization but who cannot be returned (ie who are in limbo) and it gives Member States express carte blanche to deprive asylum-seekers of even the modest income which they were previously earning as seasonal workers. Overall, while the Directive will hopefully have some effect achieving its objectives, it may be a classic example of what academics call ‘picking the low-hanging fruit’ – focusing on the easier issues and avoiding the harder ones.

*This post is based on my ongoing research for the 4^th edition of EU Justice and Home Affairs Law (forthcoming, OUP)

Photo credit: Globalpost.com

 

Barnard & Peers: chapter 26

Who should get the vote in a Brexit referendum?

 

Steve Peers

“Nasty Yes won the referendum yesterday”

That was my initial response to the Brexit referendum of 1975, written precociously in my childhood diary. I rather suspect that a hundred or so miles away, in a rather posher diary, and in an infinitely posher school, David Cameron was writing exactly the same words.

Of course, we had different motivations for this youthful flirtation with the Dark Side. In my case, I was simply copying my parents’ left-wing opposition to the EU, which remained unabated even though my dad had been one of the very first British citizens to (briefly) exercise the free movement of workers to another Member State. (I remained in the UK with my mother, who was a third-country national; it’s lucky we didn’t end up as an EU law exam question).

On the other hand, David Cameron probably didn’t care much about the referendum at all, but felt he needed to write those (hypothetical) words in his diary so that right-wing Eurosceptic bullies would finally leave him alone. They didn’t.

Forty years later, it looks like we may have another Brexit referendum in the near future, depending (as things stand) upon the very uncertain result (and aftermath) of the general election due in May. I have already blogged here about the reasons why advocates of the EU should support such a referendum. My topic today is who should get the vote in a Brexit referendum; I suspect many on the pro-EU side won’t like my argument on this issue much either. But like my case for a referendum, I believe that the case I make here is a principled one – and ultimately, the pro-EU case can only legitimately be made upon principled foundations.

Although it’s not yet certain that a Brexit referendum is imminent, I am prompted to write now on the issue of the franchise due to comments on the weekend by Nigel Farage, the leader of the UK Independence Party, who said that only British citizens should get the vote in the referendum. It wasn’t clear whether he thought British expatriates in the EU (or elsewhere) should also get it.

The starting point should be the franchise rules that already exist, although they could be changed for a referendum (as they were for the Scottish independence referendum last year). Among the existing rules, it makes sense to focus on those for UK-wide elections, rather than those for local government or the devolved bodies in Scotland, Wales and Northern Ireland, since a Brexit vote would be held nationwide.

There are two nationwide templates to choose from. In general elections, all British, Irish and Commonwealth citizens can vote, as can any British expatriates if they have been away from the country (whether in the EU or elsewhere) for less than 15 years. In European Parliament elections, citizens of all European Union countries can vote.  (For more details, see here).

At first sight, it might seem attractive to argue (as many on the pro-EU side do) that all EU citizens in the UK should get the vote. The departure of the UK from the EU would certainly affect them fundamentally. Even though UKIP’s current official position is that all those legally present should get to stay, there’s no guarantee that this protection would exist in practice after Brexit. And giving all EU citizens the vote is not unprecedented for nationwide elections, as they have the vote in European Parliament elections. (Indeed, they have the vote in local elections too).

However, this argument should be rejected, for two reasons. First of all, European Parliament elections are different in principle from other nationwide votes. They determine who will be the UK’s Members of the European Parliament, but that is a multinational body with a role in EU-wide decision-making. Of course EU laws have an impact on the UK, but the European Parliament is not the place where decisions distinct to the UK as a separate state get made. In contrast, such decisions get made via means of direct democracy, in nationwide referendums, and more frequently via means of indirect democracy, via means of our vote for the national parliament. So it makes more sense for all votes on the future of the UK as a separate state to be subject to the same franchise rules. In fact, this is the practice: the Westminster voting rules (leaving aside members of the House of Lords) were applied to the 2011 referendum on a change to the electoral system, and in the recent private members’ bills (supported by the Conservative party) providing for a 2017 Brexit referendum.

The second argument is one of legitimacy. If the pro-EU side narrowly wins a Brexit referendum in which all EU citizens are allowed to vote, Eurosceptics will endlessly claim that the election was ‘stolen’ from them. I can already anticipate the reaction to this point: Eurosceptics will demand another referendum anyway. The historical parallels are legion: Quebec separatists demanded another referendum after they lost the first one in 1980; Scottish nationalists are already agitating for a second independence referendum; and the Eurosceptics of the 1970s took over the Labour party shortly afterward.

But the point is not to try to stop hardcore Eurosceptics arguing for another Brexit referendum. They are bound to do that. The point is to stop them winning the argument for another referendum in public opinion more broadly. The pro-EU side should aim to win that argument fairly, by ensuring that the upcoming Brexit referendum (if there is one) is, as far as possible, beyond reproach.  (Again, of course hardcore Eurosceptics are bound to reproach it if they lose; the battleground is mainstream public opinion). The result of a Brexit referendum is always likely to be seen as a little bit dubious in mainstream public opinion if it depends on the votes of people who don’t usually have the vote in general elections, given that EU citizens can only vote in EP elections in the first place because of EU law. A good historical parallel would be the Canadian election of 1917, which was won by a pro-conscription party in the midst of the First World War by disenfranchising conscientious objectors and enfranchising women, but only if they were related to servicemen. For good reason, this victory was regarded as illegitimate by those opposing conscription.

Furthermore it’s not impossible to convince the broader public that a fresh referendum is unnecessary, where there’s a good case that the earlier one was clearly legitimate. After all, while Quebec separatists did get to hold another referendum in 1995, they have not yet secured another one despite their very narrow loss on that occasion. The Eurosceptic takeover of the Labour party proved shortlived, since it contributed to splitting the party and its biggest electoral defeat since the 1930s.

Should the franchise be changed in some other way for a Brexit referendum? No, for the same reason: any special rule would look like an attempt to fix the result, possibly in a Eurosceptic direction. So the franchise should not be narrowed to British citizens only: Irish and Commonwealth citizens have the vote in general elections, so should have the vote for the Brexit referendum too. (Remember that Cyprus and Malta are in both the EU and the Commonwealth). So should British citizens living abroad, whether they are living in the EU or not. It can’t be assumed that they are all pro-EU voters, as my dad’s example shows. Some of them may even have left the UK because of a belief that there were too many immigrants there – displaying an obvious lack of appreciation of irony.

What if the general election mandate is changed anyway? There may indeed be a case to be made that only British citizens should vote in general elections. However, for good reasons, there is a tradition that changes to the franchise need broad support across the political spectrum, including the main opposition party. And it would clearly be obnoxious to shove through a change to the franchise in the last few weeks before a general election. If there is such broad support for changing the franchise after the next general election, the first time to apply the new rules should be the subsequent general election, not any Brexit referendum that might take place.

My argument above will disappoint those who believe strongly that EU citizens in the UK should have the vote on a matter that affects them so significantly. But the case against letting them vote in a Brexit referendum is also tactical: the complaints against it are more likely to lead to a further referendum in the near future, or even to increase the votes for the anti-EU side. Yet even if the net result of letting all EU citizens vote would be to increase the pro-EU vote, it would be wrong to give them the vote in principle. And if EU citizens are particularly keen to vote, they could always consider obtaining UK citizenship.

Postscript (10 May 2015):

The above analysis obviously becomes more relevant after the results of the UK general election, given that a referendum on EU membership now seems certain to happen in the near future. That doesn't give me any reason to change my view, but it's a good occasion to make two further points.

First of all, I would reiterate the case against changing the voting franchise at all for the EU referendum, no matter what the changes concern. So the UKIP argument that 'only UK citizens should have the vote' should also be rejected, because it is equally wrong in principle. If Commonwealth citizens and Irish citizens can normally vote on the key issues facing this country in general elections, why can they not vote on the question of EU membership? Excluding them would appear to be an attempt to bias the vote toward the anti-EU side. Similarly, while I am in favour of extending the vote to 16 and 17-year-olds, the EU referendum would be the wrong time to change the rules. Again, it would appear to be an attempt to fix the results, particularly in light of the bizarre UKIP argument that young minds have been polluted by EU colouring books featuring evil Euro-cows.

Secondly, I think there's a better way to put my argument of principle against allowing all EU citizens to vote in the EU referendum. The whole point of the referendum is to decide on the polity (ie the political identity) of the UK in the first place. Should we remain part of the EU or not? Allowing all EU citizens in the UK to participate in that decision would effectively mean that they are judges in their own case.

I can understand the concerns of EU citizens in the UK that they ought to have a vote in an issue which will affect them so directly.  One solution is to obtain UK citizenship. For those unwilling or unable to do that, they have every right to participate in the broader public debate to convince voters that EU membership makes an important contribution to the UK's economic prosperity, environmental protection. social justice, animal welfare and cultural identity - and in particular that migrants from the EU make a huge contribution to Britain's economic and social success.  

Second postscript (25 May 2015)

Press reports indicate that the UK referendum on EU membership will indeed essentially follow the general election franchise, and not extend the vote to citizens of other EU countries (besides Ireland, Cyprus and Malta) living in the UK. Some have questioned the legality of this, but there seems little ground to challenge it. The EU Treaties require Member States to give all EU citizens the vote in local and European Parliament elections, but there is no reference to other votes. Since the Treaties include the power (never used) to widen EU citizens' rights beyond those listed, it must therefore be presumed that the Treaty drafters did not intend to require Member States to extend voting rights in referenda (or in any other elections) in the absence of a decision to lengthen the list of rights attached to EU citizenship.  As for the ECHR, the First Protocol to the Convention requires States to hold 'free elections', but on the face of it this does not apply to referenda, and the case law does not suggest that voting must be extended to non-nationals in any event.     


Barnard & Peers: chapter 2

Photo credit: www.jonworth.eu
Meme: Steve Peers
Jumper design: Nigel Farage :)

The Ups and Downs of Dual Citizenship – the CJEU on Dual Turkish/EU citizens and social rights

Professors: Elspeth Guild, Queen Mary University of London; Kees Groenendijk, Radboud University; and Steve Peers, University of Essex

In recent years, an increasing number of Turkish citizens residing in the EU have become dual citizens of Turkey and an EU Member State. Like other dual citizens of a Member State and a non-Member State, they can invoke EU free movement law to move and reside in another Member State (see the CJEU’s Micheletti judgment). But as a general rule, EU free movement law will not confer rights in their home Member State. So in that case, can they still rely upon their Turkish citizenship to claim rights under the EU/Turkey association agreement?

Back in 2012, in its judgment in Kahveci and Inan, the CJEU determined that dual Turkish/Dutch nationals were entitled to rely on their Turkish citizenship to enjoy the benefits of the EU/Turkey association agreement as regards family reunification and thus escape the stricter national legislation for own nationals’ family members. So until the recent decision earlier this month in Demirci, it looked as if Turkish citizens with a second passport from a Member State were more or less free to choose which one to rely on in order to benefit from EU law. But the Demirci judgment changes the rules slightly and provides a more elaborated legal reasoning to when dual nationals of Turkey and a Member State may use one or other of their citizenship.

The finding is rather ominous so we will start some background on the facts of the case and conclude with a rather optimistic analysis where we conclude that dual nationality is still a strong source of rights in EU law and that this judgment is perhaps the exception.

The Facts:

Mr Demirci and his fellow applicants are all former Turkish workers who had worked in the Netherlands for many years fulfilling the conditions of the secondary legislation of the EU/Turkey Association Agreement, Decision 1/80 of the EU/Turkey Association Council, which regulates aspects of the immigration status of Turkish workers and their family members. They had all naturalised as Dutch nationals but kept their Turkish citizenship. They all became disabled and incapacitated for work and thus permanently left the labour force. They received a Dutch social benefit designed to provide income for the incapacitated. But this benefit is rather low so they applied for a top up benefit to bring their income closer to that of the minimum wage. They were all awarded the top up benefit.

Then a series of things happened. The men retired with their families to Turkey. The Dutch Government began to change the rules on the top up benefit to exclude anyone not resident in the Netherlands (or the EU). Mr Demirci and his colleagues first had their top up benefit reduced then it was cut off altogether on the basis that they no longer lived in the Netherlands (or EU). They appealed, relying on their Turkish nationality, on the basis that this treatment was contrary to the EU/Turkey Association Agreement measure on social security – Association Council Decision 3/80. The argument went that the Dutch authorities may be able to cut off the top up benefit to their own nationals living outside the EU as this is a matter wholly internal to one Member State. But they cannot cut off the top up benefit to Turkish nationals who have fulfilled the conditions as workers in a Member State under Decision 1/80 as this is a matter of EU law (which does not permit such an act – Article 6(1) of Decision 3/80 protects Turkish workers who retire to Turkey as regards receipt of social benefits). Several years ago, the CJEU ruled in Akdas that such rules infringed Decision 3/80 as regards Turkish nationals who returned to Turkey. But could a dual citizen of Turkey and a Member State rely on that judgment, as a Turkish citizen – or would he or she be prevented from doing so, as a national of that Member State?  

The reasoning

The CJEU bluntly tells Mr Demirci and his colleagues that they cannot rely on Decision 3/80 to object to the residence requirement imposed by the Dutch authorities (para 52). This is because, according to the Court, the objectives of the Decision and the EU/Turkey regime is to ensure the progressive integration of Turkish workers into the territory of the host Member State. The social security provisions consolidate that objective.

The Court provides two main reasons for this position. First, because Mr Demirci and his colleagues had acquired Dutch nationality they are in a particular situation as regards the Agreement. Citizenship is ‘the most accomplished level of integration’ of a person into the host state (para 54). This new citizenship means that the former Turkish worker can now enter and reside freely in the Netherlands or indeed any other EU Member State where he or she might wish to go. Conversely, in Kahveci & Inan the Court did not accept the argument of the Dutch government that naturalisation is the pinnacle of integration. In that case AG Sharpston argued that naturalisation may be an indication that an immigrant is on his path to integration, but that is not the same as saying that he has become completely integrated. .

But as Turkish nationals, Mr Demirci and his friends could only live in Turkey or their host Member State (the Netherlands) and so they have no free movement rights. Further as such, they only benefit from certain rights in the host Member State. So, says the Court, for the purposes of paying them a benefit, it is reasonable for the national authorities to make this subject to the same rules as apply to all other Dutch nationals (para 57).   

Secondly, dual Turkish/Dutch nationals would be placed in a better position than other EU citizens if they were allowed to have the top up benefit even though they did not fulfil the residential requirement (para 58). The right to export to Turkey social benefits in Decision 3/80, according to the Court, is a sort of compensation for the fact that Turkish nationals will no longer be able to return to and live in the host Member State. As the CJEU held in Bozkurt, a Turkish national ceases to be a protected person under Decision 1/80 if he or she becomes totally and permanently incapacitated for work (para 64). So there is a justification for applying different rules to those who are exclusively Turkish nationals as they have a much less secure residence status in the host Member State and no free movement rights in EU law. They therefore need the extra protection of the export right. For dual Turkish/Dutch nationals, they can always move back to the EU and fulfil the residential requirements for the top up benefit (even if they would rather not) (para 65).

 Distinguishing Kahveci & Inan

As mentioned above, this judgment takes a different approach from the CJEU’s own jurisprudence in Kahveci & Inan where it held that dual Turkish/Dutch nationals were allowed to rely on their Turkish nationality for the purposes of the EU/Turkey family reunification rules, in order to benefit from the expulsion of Turkish workers’ family members, which are more favourable than the rules applying to the expulsion of the family members of Dutch citizens in the Netherlands. However, the CJEU is anxious to protect its ruling in Kahveci and goes to some lengths to explain why the finding in Kahveci is consistent with that which they were giving in Demirci (para 66). The argument goes like this. Family reunification enhances integration, for Turkish workers who are already legally integrated into the host Member State. Article 7 of Decision 1/80 deepens the last integration of a Turkish worker by granting to that worker’s family members, after three years residence, access to the labour force (para 67). So, acquisition of national citizenship could not be used as a reason to deprive the worker of the benefit of family reunification in Decision 1/80 (para 68). By contrast with the facts in Demirci, the family’s integration would be hindered if it was denied on the basis of dual citizenship. Further in Kahveci the person was seeking to benefit family members who are also Turkish nationals (para 70). Presumably this reasoning means that dual Turkish/EU citizens can also invoke the ‘standstill’ clause in the EU/Turkey association agreement, as interpreted last year in the CJEU’s Dogan judgment (discussed here), to avoid stricter rules for family reunion that apply to a Member State’s own nationals.

But in the case of Mr Demirci he can always go back to the Netherlands (or the EU) to satisfy the residential requirement to get the top up (para 69). Further all he and his colleagues wanted was a top up benefit for themselves (para 71). Finally, the CJEU considered that if Mr Demirci could rely on Decision 1/80 to have the top up benefit while not fulfilling the residential requirement, this would put them in a better situation than that of other citizens of the Union (and thus contravene Article 59 of the Additional Protocol to the EU/Turkey association agreement, which rules out Turkish citizens being better off than EU citizens).

The Court’s approach seems to be that there is something inherently wrong about letting Mr Demirci and his colleagues have their cake and eat it too. The arguments may not be the most compelling in the world but they show a clear judicial line. The CJEU will favour Turkish nationals living in the EU even if they have taken a second citizenship so long as this improves their long lasting integration. But they cannot rely on their Turkish citizenship after naturalization when what they seek is a financial benefit which is subject to a residential requirement for EU citizens (and which they do not fulfil because they have left the EU).

The Court appears to implicitly return somewhat to its reasoning in the Mesbah judgement of 1999, where it held that the Moroccan mother of a Belgian-Moroccan worker who was living with her son in Belgium could not rely on the clause prohibiting discrimination on grounds on nationality in the EEC-Morocco Association Agreement to claim a disablement allowance that under Belgian law was only granted to Belgian nationals. The Court in Demirci, however, does explicitly point to the difference with Kahveci & Inan: “[in] the present case, by contrast, the respondents in the main proceedings are relying on the provisions of Decision 1/80 on their own behalf and in their own interest” (para 70). The Court leaves the door open for the Turkish spouse of a Turkish/Dutch (ex-) worker to rely on Decision 3/80, because the spouse, not having Dutch nationality, would be unable to return to the Netherlands.

 

Conclusions

The most important thing to remember about the Demirci decision is that it does not undermine the Court’s judgment in favour of dual rights for dual citizens in Kahveci & Inan. Yes, Turkish nationals can rely on the EU/Turkey association agreement family reunion rules even after they have naturalized in their host Member State, provided they are allowed to have dual nationality (it isn’t yet clear if they could invoke the EU’s own family reunion Directive). But they cannot rely on their non-EU citizenship after they leave the EU to get around a national residential requirement for the export of a social benefit if such a requirement applies to nationals of the host Member State.

Barnard & Peers: chapter 13, chapter 26

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