Benefits for unemployed EU citizens: the CJEU may complicate David Cameron’s renegotiation strategy

 

Steve Peers

The issue of the free movement (or ‘immigration’) of EU citizens between Member States has become highly controversial politically, especially in the UK. In particular, their access to benefits remains highly contentious. The CJEU has the chance to clarify some key issues on this point, in the pending case of Alimanovic, in which an Advocate-General issued an opinion today.

Today’s opinion is not binding, so we must wait to see if the CJEU is willing to follow it. But if it does, the Court will complicate the Conservative party’s strategy to renegotiate the UK’s EU membership. Even if the result of the upcoming UK general election means that the Conservative party’s plans are moot, the judgment will still be relevant to the Labour party’s less far-reaching plans to restrict EU citizens’ access to benefits.

Background

The CJEU ruled in November 2014 in the well-known Dano judgment (discussed here) that unemployed EU citizens who moved to another Member State could not access social benefits there, if they were not looking for work. This ruling did not apply to other categories of unemployed EU citizens: those who moved to another Member State and were looking for work there, and those who had worked there already and become unemployed. Today’s opinion concerns both of these categories.

According to the EU citizens’ Directive, unemployed EU citizens looking for work in another Member State cannot obtain social assistance benefits from another Member State if they have not worked in that State. However, the case law of the CJEU states that those citizens can rely on the free movement of workers rules in the EU Treaty in order to claim benefits related to the labour market.

As for those EU citizens who have worked in that Member State and become unemployed, the Directive says that they retain worker status (and therefore access to benefits, including social assistance) if they have worked there more than one year. They also retain worker status if they have worked there for less than that period, although in that case they only keep that status for six months. However, again relying on the Treaty free movement rules, the CJEU has ruled that worker status can be retained in other cases too, for instance by women who have stopped work briefly due to maternity (see discussion here).

The Conservative party position is that EU citizens working in a Member State should have to wait four years to get access to tax credits, social housing and housing benefits, as well as no taxpayer support for job-seekers. As I discussed before, these are the first and eighth of Cameron’s nine objectives in the planned renegotiation of EU membership (in so far as it concerns ‘migration’ from the rest of the EU). The Labour party position is that EU citizens should have to wait two years for benefits.

The case concerns Swedish citizens (a mother and her children) who had lived in Germany before, left for a number of years, and then returned there. The mother and oldest child then worked in Germany briefly, but became unemployed. Do they have access to benefits?

The Opinion

The Advocate-General first clarifies that the benefits are social assistance, not labour-market related. So job-seekers in general do not have access to them; only former workers do. But as part of this analysis, he reaffirms the current rule that the Treaty gives job-seekers access to labour-market related benefits.

Then he examines whether people who become unemployed after short periods of work in a host Member State can be considered former workers – and therefore retain access to social assistance benefits – in cases besides those listed in the Directive. He argues that they can, in part on the basis of the EU Treaties, and that any Member State which refuses to extend such benefits to them automatically breaches EU law. Instead, a Member State must consider the benefit request on a case-by-case basis, assessing whether there is a sufficient link with the labour market of that State.

Comments

If it is followed by the CJEU, the Opinion makes both the Conservative and Labour plans to renegotiate UK membership as regards EU citizens’ access to benefits harder to achieve. The crucial point is the extent to which renegotiation concerns a Treaty amendment, which is far harder to achieve (unanimous agreement of all Member States, and national ratification) than an amendment to EU legislation, like the citizens’ Directive (qualified majority of Member States, proposal from Commission and agreement of European Parliament).

First of all, the Opinion reaffirms that the Treaty requires that all job-seekers get access to labour-market related benefits. So only a Treaty amendment could overturn that rule.

Secondly, the Opinion asserts that the Treaty requires that former workers might have access to benefits, on a case-by-case basis, if they have stopped work in circumstances other than those listed in the Directive. This goes further than the status quo, since the CJEU has only established this point as regards women interrupting work for maternity. The workers concerned have only been employed in Germany for short periods, well below the four-year waiting period that the Conservatives want, or even the two-year period that Labour supports.

It remains to be seen whether the Court will accept today’s opinion, or instead opt for a judgment that more obviously reflects the political sensitivities surrounding unemployed EU citizens’ access to benefits – as it plainly did in the Dano judgment.

 

Barnard & Peers: chapter 13

The protection of temporary agency workers according to the CJEU: The AKT judgment

Alejandra Victoria García Sánchez *

Research and Documentation Department of the Court of Justice of the EU (The opinions expressed in this blog post are solely those of the author)

Last week the Grand Chamber of the Court of Justice of the European Union (CJEU) issued its first ruling on Directive 2008/104/EC on temporary agency work, the judgment in AKT, Case C-533/13. The following blog post sets out the legal context of the Directive, the main points of the judgment and an analysis of the judgment, comparing it to case law on related legislation and commenting on the main issues that it raises.

Legal context of the on temporary agency work Directive

Temporary agency work is regulated by Directive 2008/104, which was adopted under the legal basis provided by Article 153, paragraph 2, of the TFEU. Two other forms of so-called ‘atypical work’, part-time work and fixed-term work, are regulated by Framework Agreements negotiated by the social partners (these Agreements are annexed to Directives 97/81/EC and 1999/70/EC respectively).  The recitals of the Framework Agreement on fixed-term work stated an intention to adopt a similar Agreement on temporary agency work; however, the failure of the social partners to reach such an Agreement led the EU legislators to adopt a Directive instead. The Commission reported on the transposition of the Directive by Member States in 2014.

Field of application of the Directive

The CJEU had previously clarified in its judgment in Della Rocca that fixed-term workers placed by a temporary work agency at the disposition of a user enterprise are not covered by the Framework Agreement on fixed-term work but by the Directive on temporary agency work (paragraph 36).

In order to determine whether a worker is protected by the Framework Agreement or by the Directive, the type of employer prevails over the type of contract that binds that employer to the employee.

The facts and the judgment of the CJEU in AKT

In the AKT judgment, the CJEU clarified the scope of the obligations stated in Article 4(1) of the temporary agency work Directive, entitled “Review of restrictions or prohibitions”. This provision states that “prohibitions or restrictions on the use of temporary agency work shall be justified only on grounds of general interest relating in particular to the protection of temporary agency workers, the requirements of health and safety at work or the need to ensure that the labour market functions properly and abuses are prevented”. Article 4(2) states that Member States shall review restrictions that are not based on general interest grounds.

The undertaking SAF has been employing temporary agency workers for several years. The AKT, a trade union, contended before Finnish courts that SAF was employing temporary agency workers to perform the same tasks as its own workers and required SAF and Öljytuote ry, an employers’ association, to pay a penalty provided by Finnish law punishing improper use of temporary agency workers. The defendants contended that the Finnish provision establishing a penalty for improper use of temporary agency work is contrary to Article 4(1) of Directive 2008/104, since that limitation is not justified on the grounds of general interest. The national court doubted whether Article 4(1) of the Directive obliges national authorities, including the courts, to not enforce or not apply national provisions containing prohibitions or restrictions that are not justified on grounds of general interest.

The CJEU analysed Article 4(1) “in its context”. It highlighted that paragraphs 2, 3 and 5 of the same Article require the Member States to review and verify whether the limitations laid down by their laws are compatible with Article 4(1), that they notify the Commission of the review and that the Member States remain free to either remove or adapt the restrictions and limitations laid down by their laws (paras 26-30). The CJEU stated that the tasks indicated in Article 4 are to be performed by the competent authorities of the Member States, and not by national courts. Furthermore, the CJEU concluded that Article 4(1) does not require the adoption of specific legislation (para.31).

The case law on the part-time work Framework Agreement

It is interesting to compare the treatment of Article 4(1) of the temporary agency work Directive with the case law on the similar provision of the part-time work Framework Agreement.

The latter  Agreement contains a provision that is similar to Articles 4(1) and 4(2) of Directive 2008/104: Clause 5(1)(a) of the Framework Agreement imposes an obligation on Member States to “identify and review obstacles of a legal or administrative nature which may limit the opportunities for part-time work and, where appropriate, eliminate them”.

Clause 4 of the part-time work Framework Agreement, which states the principle of non-discrimination of part-time workers in respect of employment conditions, has been considered by the CJEU as articulating a principle of European Union social law which cannot be interpreted restrictively (Case C-395/08, Bruno e.a., para. 32).

In Case C-395/08, Bruno e.a, paras. 80-81, the CJEU reached the conclusion that, where national legislation is found by a national court to be incompatible with Clause 4, i.e., it discriminates against part-time workers, discouraging the workers from pursuing their occupational activity on such a basis, Clauses 1 and 5(1) of the agreement would have to be interpreted as also precluding such legislation.

An example of a measure that has been found to infringe Clause 5 was identified in case C-55/07, Michaeler a.o., where Italian national law required employers to notify part-time work contracts 30 days after their conclusion, with the possibility to impose fines in case of lack of notification. The measure was found by the CJEU to dissuade employers from using part-time work contracts and thus, to be precluded by Clause 5(1)(a) (paras. 28-20).

This case law provides guidance on the issue of when a measure should be eliminated according to Clause 5(1)(a) and can be applied by analogy to Article 4(1) of the Directive in order to clarify the causes why a Member State is entitled to restrict or prohibit the use of temporary agency work and when is it required to withdraw a restriction or prohibition.  However, this was not at issue in the AKT judgment. The issue is not when but who should withdraw an unjustified restriction upon temporary agency work. According to the above mentioned case law, under Clause 5(1)(a), both the Member States and the national courts can perform the task of eliminating unjustified restrictions. This mechanism ensures that, if restrictions persist, a national court can solve the problem by eliminating the obstacles, contributing to the achievement of the objectives of the Agreement.

 Comments

In the AKT judgment, the CJEU entrusted solely the governments of the Member States with the task of complying with the objective of article 4(1). Thus, the case law regarding Clause 5(1)(a) cannot be used by analogy, as it could have been expected, in order to interpret who should review or eliminate a measure not compatible with article 4 of the Directive, since, as it has been interpreted by the CJEU, only the Member States’ competent authorities have the power to review or eliminate national provisions in order to decide when and how to comply with the objectives of the Directive.

The CJEU in this judgment interpreted Article 4(1) in “its context”; however, the “context” was limited to the other paragraphs of Article 4. It is true that looking at those provisions, only governments and social partners (if such restrictions or prohibitions are laid down by collective agreements, according to Article 4(3)) can proceed according to Article 4(1). However, the CJEU did not mention the objective of the Directive settled in Article 2. The Directive aims at recognising temporary work agencies as employers, while taking into account the need to establish a suitable framework for the use of temporary agency work with a view to contributing effectively to the creation of jobs and to the development of flexible forms of working. Thus, from the point of view of social policy, the rationale behind the adoption of the Directive seems clear: to stabilise the situation of temporary work agencies and to settle their legal status as employers, limiting the use of their temporary workers only on grounds of basic work standards such as health, safety or prevention of abuses, which are basic principles of social policy applied in many other fields of labour law. Once this policy step has been taken, from the point of view of legal consistency, the objective of the Directive being clear, the combination of Articles 2 and 4(1) of the Directive should lead to the empowerment of national courts to not apply national laws that restrict temporary agency work further than necessary, which are contrary to EU law (as is the case with Clause 5(1) of the part-term work Agreement).

The exclusion of the competences of the national courts to not apply measures that run counter to Article 4(1) might thus be paradoxical, since, the unjustified restrictions that have not been modified or derogated from by the “competent authorities” will have to be applied by national judges, even if they consider them to be contrary to the Directive.

However, this judgment has been welcomed by trade unions, since it has been considered that it “guarantees the social partners’ autonomy in regulating the use of temporary agency work through collective agreements”. Their joy should be limited, as we should not forget that Article 4(3) states that the review referred to in paragraph 2 may be carried out by the social partners who have negotiated the relevant agreement. Furthermore, the Directive is still clearly in favor of recognising that temporary agency work is a form of employment that should be protected, and only limited on the basis of fundamental work standards. The fact that national courts are not entitled to set aside unjustified restrictions (according to the CJEU) does not mean that the Directive’s objective has changed, but it does mean that the achievement of that objective is delayed and more difficult to reach, since the political will of governments and social partners might not be focused on these aims.

[See also: Steve Peers' article on non-discrimination against atypical workers, in the Yearbook of European Law.] 

[See also:

Barnard & Peers: chapter 20

Choosing to go GM-Free? The New EU Legal Framework for Genetically Modified Crops

 

 

Mary Dobbs, Lecturer in Law, Queen’s University Belfast

 

Until April 2015, whether to permit genetically modified (GM) cultivation or not was a European rather than national or regional decision. However, Directive 2015/412 returns important powers to the EU Member States that will enable them (and potentially their subnational regions) to choose whether to restrict GM crops in their territories. Indeed, Germany is already debating whether it will implement a national ban or leave the matter up to the individual Länder. Whilst of relevance to all Member States, it will be of particular interest to view the impact upon States where there are substantial conflicting stances towards to GM crops internally as highlighted by the UK.

 

EU background

 

Under EU law, prior authorisation is required for every GM crop, but once it receives EU authorisation it is automatically authorised within all Member States. Restrictions are only permitted in accordance with EU law, e.g. where new scientific evidence shows that there are real risks to human health or the environment. However, despite the EU-wide authorisation process, there is no EU-wide agreement on whether GM cultivation should take place. This is as GM crops tend to be contentious, linked in part to the surrounding scientific uncertainty and their very nature – as involving the modification of DNA. They engage interests regarding societal and cultural traditions, trade, consumer choice, producer choice, environmental protection, health and food security, with no clear-cut ‘right’ approach for GM cultivation. Indeed, due to the decision-making process, crops can be authorised contrary to the wishes of some or even the majority of Member States (as occurred in the case of Novartis BT176). Consequently, within the EU there have been numerous national and regional bans and the creation of a GM-Free Network – of questionable legality in EU law.

 

As a result of the on-going disputes and tension, in 2010 the Commission proposed to introduce an opt-out clause into the main legislation (Directive 2001/18) that would permit Member States to ban GM crops. A striking example of de-harmonisation within the EU, this was intended as a compromise that would provide the Member States with the desired flexibility whilst hopefully freeing up authorisations and encouraging States to lift bans based on the safeguard clauses. Following substantial negotiations, political agreement has finally been reached in the EU over the content. The result is Directive 2015/412, which comes into force in April 2015, with important consequences for the entirety of the EU Member States and their regions.

 

Opt-out provision

 

The new Article 26b will permit Member States to request notifiers to apply geographical restrictions to any (re-)authorisation notification, i.e. to exclude all or part of that Member State’s territory from the scope of the notification. If the notifier accedes, the matter ends there – any (re-)authorisation will be accordingly restricted until the Member State changes its mind. However, if the Member State does not make the request in the relevant time period or if the notifier refuses the request, the Member State may still opt-out from cultivating that GM crop by claiming that the restriction is necessary to protect a legitimate objective. The provision includes a non-exhaustive list of potential objectives, including agricultural policy, land use and environmental policy objectives, but specifically not based on a conflict with the EU environmental risk assessment carried out under the authorisation process. This will apply for any future (re-)authorisations, but there will also be a transitional period regarding currently authorised crops and so Member States will be posed with the question shortly.

 

A UK approach?

 

The possibility of opting out may seem inconsequential to the UK, as the UK as a whole officially has a pro-GM cultivation stance. Indeed the UK’s outlook focuses more on the possibility that this compromise may loosen up the authorisation process and allow for future GM cultivation nationally. However, whilst England may reflect the general UK approach and Northern Ireland is torn on the issue, the same cannot be said of Wales and Scotland who hold relevant devolved powers. These two regions are adamant in their desire to be GM-Free, as are a number of localities across the UK.

 

However, whilst any requests or opt-outs may relate to regions or localities within a Member State, rather than the entirety of the State, the provision leaves the decision in the hands of the Member State rather than individual regions (even where they hold legislative competence nationally). Therefore the challenge for Wales, Scotland, or indeed the other regions within the UK, is to convince the UK to make the request on their behalf during the relevant time period (each and every time). Considering that the relevant powers to deal with environmental and agricultural issues are devolved to these regions, it would be hoped that the UK would agree to make the request in the appropriate timeframe. If the regions do not act initially, then they will have the harder task of convincing the UK to opt-out based on an objective justification and risk the European Commission and eventually the Court of Justice of the EU considering that the opt-out is unnecessary. It will be interesting to see how the internal negotiations will play out, but the regions and UK as a whole need to consider what approach they will take as soon as possible in light of the transitional arrangements.

 

This option then begs the question of what approach should the UK and the regions take? Are the benefits that the GM crops bring (for the regions, the UK or society more generally) sufficient to counter the potential appeal of being a GM-Free region? There is no simple answer. There are unlikely to be huge environmental or health risks posed, since the crops go through a risk assessment prior to authorisation. This does not prevent them having impacts on the environment or food production and security however – as with any form of agricultural cultivation. More immediately pressing though is whether the UK and its regions wish to maintain non-GM crops. It is extremely difficult to maintain the harmonious coexistence of compatible GM and non-GM crops in a locality and neither Great Britain nor the island of Ireland are the largest of landmasses. Any stance in Northern Ireland will also have to bear in mind the approach taken in Ireland and deal with resulting cross-border issues over admixture (contamination). Pragmatically, the UK and the regions in Great Britain will also have to consider approaches across Great Britain and the potential for admixture there also. In other words, if the UK accedes to the regions’ requests and applies for restrictions on their behalf, there will be a consequent need for significant coordination and strong coexistence measures to attempt to manage the potential for admixture between regions as best as feasible. It is for this reason that the German regional agricultural ministers have been pushing for a national ban instead.

 

Conclusion

 

Although discussed in light of the UK, the option is open to Member States across the EU – including those where regions have relevant decentralised powers and are already members of the GM-Free Network. The forthcoming months in particular will prove crucial for these regions and their Member States, in determining what requests to make of the notifiers, whether to apply for opt-outs if necessary and in ensuring coordination within and between the Member States where varying approaches are taken. This will become even more significant if the amendment facilitates indirectly the EU authorisation of further GM crops, leading to the increased possibility of admixture.

 

*See also: my German Law Journal article on ‘Legalising General Prohibitions on Cultivation of Genetically Modified Organisms’

 

Photo credit: www.sheknows.com

The UK implements EU free movement law – in the style of Franz Kafka

 

Steve Peers

Most laws are complicated enough to start with, but with EU Directives there is an extra complication – the obligation to transpose them into national law. A case study in poor transposition is the UK’s implementation of the EU’s citizens’ Directive, which regulates many aspects of the movement of EU citizens and their family members between EU Member States. Unfortunately, that defective implementation is exacerbated by a further gap between the wording of this national law and its apparent application in practice, and by the unwillingness of the EU Commission to sue the UK (or other Member States) even for the most obvious breaches of the law.

It’s left to private individuals, who usually have limited means, to spend considerable time and money challenging the UK government in the national courts. One such case was the recent victory in McCarthy (discussed here), concerning short-term visits to the UK by EU citizens (including UK citizens living elsewhere in the EU) with third-country (ie, non-EU) family members.  The UK government has just amended the national rules implementing the EU citizens’ Directive (the ‘EEA Regulations’) to give effect to that judgment – but it has neglected to amend the rules relating to another important free movement issue.

Implementing the McCarthy judgment

The citizens’ Directive provides that if EU citizens want to visit another Member State for a period of up to three months, they can do so with very few formalities. However, if those EU citizens are joined by a third-country family member, it’s possible that this family member will have to obtain a short-term visa for the purposes of the visit. The issue of who needs a short-term visa and who doesn’t is mostly left to national law in the case of people visiting the UK and Ireland, but it’s mostly fully harmonised as regards people visiting all the other Member States.

Although the EU’s citizens’ Directive does simplify the process of those family members obtaining a visa, it’s still a complication, and so the Directive goes further to facilitate free movement, by abolishing the visa requirement entirely in some cases. It provides that no visa can be demanded where the third-country family members have a ‘residence card’ issued by another EU Member State. According to the Directive, those residence cards have to be issued whenever an EU citizen with a third-country family member goes to live in another Member State – for instance, where a British man moves to Germany with his Indian wife. Conversely, though, they are not issued where an EU citizen has not left her own Member State – for instance, a British woman still living in the UK with her American wife.

How did the UK implement these rules? The main source of implementation is the EEA Regulations, which were first adopted in 2006, in order to give effect to the citizens’ Directive by the deadline of 30 April that year. Regulation 11 of these Regulation states that non-EU family members of EU citizens must be admitted to the UK if they have a passport, as well as an ‘EEA family permit, a residence card or a permanent residence card’. A residence card and permanent residence card are creations of the EU Directive, but an ‘EEA family permit’ is a creature of UK law.

While the wording of the Regulation appears to say that non-EU family members of EU citizens have a right of admission if they hold any of these three documents, the UK practice is more restrictive than the wording suggests. In practice, having a residence card was usually not enough to exempt those family members from a visa requirement to visit the UK, unless they also held an EEA family permit. Regulation 12 (in its current form) says that the family member is entitled to an EEA family permit if they are either travelling to the UK or will be joining or accompanying an EU citizen there. In practice, the family permit is issued by UK consulates upon application, for renewable periods of six months. In many ways, it works in the same way as a visa requirement.

An amendment to the Regulations in 2013 provided that a person with a ‘qualifying EEA State residence card’ did not need a visa to visit the UK. But only residence cards issued by Germany and Estonia met this definition. This distinction was made because the UK was worried that some residence cards were issued without sufficient checks or safeguards for forgery, but Germany and Estonia had developed biometric cards that were less likely to be forged.

In the McCarthy judgment, the CJEU ruled that the UK rules breached the EU Directive, which provides for no such thing as an EEA family permit as a condition for admission of non-EU family members of EU citizens with residence cards to the territory of a Member State. The UK waited nearly three months after the judgment to amend the EEA Regulations to give effect to it.

The new amendments cover many issues, but to implement McCarthy they simply redefine a ‘qualifying EEA State residence card’ to include a residence card issued by any EU Member State, as well as any residence card issued by the broader group of countries applying the EEA treaty; this extends the rule to cards issued by Norway, Iceland and Liechtenstein. Presumably this brings the rules into compliance with EU law on this point (the new rules apply from April 6th). That means that non-EU family members of EU citizens will not need a visa to visit the UK from this point, provided that they hold a residence card issued in accordance with EU law, because they are the non-EU family member of an EU citizen who has moved to another Member State. However, this depends also on the practice of interpretation of the rules, including the guidance given to airline staff.

‘Surinder Singh’ cases

On the other hand, the new Regulations do not implement other recent CJEU case law (discussed here) on what is known in the UK as the ‘Surinder Singh’ route. This is based on CJEU rulings which state that an EU citizen who moves to another Member State with non-EU family members can then return to his or her home Member State and invoke EU free movement law to ensure that this State admits his or her family members. The purpose of doing this is to avoid very restrictive rules on the admission of family members of British citizens into the UK, which are much more stringent than the EU free movement rules (Danish and Dutch citizens also use these rules).

The 2013 amendments to the Regulations state that this route can only be used where the ‘centre of life’ of the family concerned has shifted to another Member State. This is inconsistent with last year’s CJEU ruling, which requires only a three-month move to another Member State to trigger the rules. In practice, this test is then applied before an ‘EEA family permit’ is issued to the family member concerned, which allows that family member to reside in the UK with the UK citizen.

Since these parts of the Regulations have not been amended, and there is still provision for an ‘EEA family permit’ in the Regulations, presumably the intention is to continue to apply these rules to regulate the longer-term stay of UK citizens’ family members using the Surinder Singh route.

Conclusion

The better course from the outset for the UK would have been to avoid the creation of the ‘EEA family permit’, which is not provided for in any EU legislation or hinted at in any CJEU case law. Furthermore, not only do the UK rules not implement EU law correctly, they also are not applied in practice exactly as they are written, but on the basis of a general unwritten understanding about what they actually mean. This doesn’t even deserve to be called a ‘policy’. Instead, the best description comes from Yes, Minister: it’s the ‘policy of the administration of policy’.  

 

Barnard & Peers: chapter 13

Is the EU coming to save legal aid, or to bury it? An assessment of negotiations on the proposed Directive

by Claire Perinaud (FREE Group Trainee)

For many people facing criminal charges, legal aid is essential if they wish to defend themselves effectively. The EU is planning to adopt legislation on this issue in the near future. But will it actually make a significant contribution to ensuring suspects’ rights in this area?

State of implementation of the Procedural rights roadmap.

After years of unsuccessful attempts, starting in 2004 with a general Commission proposal on procedural rights, it was only from the end of 2009 that the EU legislation on procedural rights for suspects and accused persons in criminal proceedings has progressively taken shape. This was due to the entry into force of the Treaty of Lisbon (TFEU art. 82(2) now confer the power to adopt legislation on this issue), to article 47 of the Charter of Fundamental Rights (providing for the right to a fair trial) and to a political “roadmap” by which, in November 2009 the Council relaunched the Commission original proposals following a step-by-step approach instead of trying to adopt comprehensive legislation as initially foreseen in 2004.

However it is more than likely that this pragmatic approach and the transition from unanimity to qualified majority voting of the EU Member States in the Council (as from the entry into force of the Treaty of Lisbon) has made possible the adoption in co-decision with the European Parliament of the three first legislative measures on suspects’ rights: Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings; Directive 2012/13/EU on the right to information in criminal proceedings; and Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings.

Building on this success, at the end of November 2013 the Commission proposed a second “package” of suspects’ rights measures, comprising: a directive on procedural safeguards for children who are suspected or accused in criminal proceedings; a recommendation on procedural safeguards for vulnerable people suspected or accused in criminal proceedings; a directive strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings; a directive on the right to provisional legal aid for citizens suspected or accused of a crime; and a recommendation on the right to legal aid for suspects or accused persons in criminal proceedings.

In 2014 the Council already reached a general approach on the proposal for a directive on procedural safeguards for children and on the directive on the presumption of innocence. On this basis the dialogue between the Council and the European Parliament (EP) is about to start and it is possible that in the coming months an agreement could be reached so that these texts could be adopted already at the EP’s “first reading”.

Last week the Council reached (after eight months of internal negotiations!) a general approach also on the draft Directive on provisional legal aid for persons deprived of liberty in criminal proceedings and will start in the coming weeks the dialogue with the Parliament also on this text.  

The coming months will then be extremely important for EU procedural rights in criminal matters even if it will not be easy to achieve the high results that the European Parliament and some Member States were expecting. In the absence of the energetic push of the former Commission Vice President Reding there is a risk that the negotiations may achieve the lowest common denominator between the Member States also due to the unwillingness of some of them to adopt any EU legislation which can create further financial and internal institutional tensions.

Legal aid : why make it simple when you can make it tricky ?

The draft Directive on legal aid is probably the text which is currently facing the most adverse winds. Already the initial Commission’s political choice not to deal with legal aid in the Directive on the access to lawyer has created an artificial disconnection from the right to legal aid and the more general “right to legal advice” which is required by the ECHR jurisprudence as well as by the EU Charter (Articles 47 and 48). (On the human rights aspects of the right to legal aid, see the annex).

Instead of tabling a proposal that would cover these two interconnected rights, the Commission chose to come forward with a proposal on the right to access to a lawyer (now Directive 2013/48/EU) and, separately, with this proposal, which is intended however only as a partial complement to the 2013 Directive. In the words of the Commission, “the … proposal is closely linked to Directive 2013/48/EU on the right of access to a lawyer and it aims to contributing to rendering effective the right on access to a lawyer provided for in that Directive at the early stages of the proceedings for suspects or accused persons deprived of liberty”. Thus, no general rules on legal aid, but a mere stop-gap to ensure that in the very early phase of the proceedings some form of legal aid is provided.

Even worse, on the same day that the Commission transmitted its proposal to the European Parliament and to the Council, the Commission adopted a non-binding Recommendation on the right to legal aid for suspects or accused persons in criminal proceedings . The aim of this Recommendation is “to foster certain convergence as regards the assessment of eligibility of legal aid in the Member States, as well as encouraging the Member States to take action to improve the quality and effectiveness of legal aid services and administration“.

The legal basis of the Recommendation aside, its understanding of the implementation of the right to legal aid in criminal proceedings is broader than that of the draft Directive.
According to the Recommendation the right of legal aid has to be guaranteed to any suspect or accused person “from the time they are made aware, by official notification or otherwise, by the competent authorities, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty”, by putting forward the purpose of the right to legal aid, namely to complement and render effective the right of access to a lawyer as set out in Directive 2013/48/EU of the European Parliament and of the Council.

The work in the Council

The Council started examination of this proposal only in July 2014 under the Italian Presidency. However, no agreement was found and at the December 2014 Justice and Home Affairs Council only a “state of play” was presented to Ministers. At the JHA Council on 12-13 March the Council agreed its general approach. Its position shows some significant differences compared to the initial Commission proposal which, as outlined above, was already unambitious:

o a wide possibility for Member States to introduce exceptions to the application of the right to provisional legal aid for minor offences (not further defined) (Article 2 (3));

o a further possibility for Member States to subject the admission to provisional legal aid to discretionary criteria if this refers to “less serious offences” (once again, undefined) (Article 4 (2bis));

o the elimination of the possibility to access provisional legal aid in European Arrest Warrant proceedings as far as legal assistance in the issuing Member State is concerned (Article 5 (2) of the Commission proposal).

In substance, Member States are left free to define the scope of application of the (limited) right to provisional legal aid, with all but the most serious offences as possible exceptions.

It is difficult, in light of this result, to find any real added value in the text provisionally agreed by the Council. This view is shared by a number of delegations (such as France, Spain, Italy, Portugal, Belgium), which, in the course of the Council debate, have made reference to the intention of subscribing a declaration, to be added to the minutes of the Council, in which they express their disappointment. However, these delegations have not blocked the adoption of the general approach, preferring instead to proceed with the legislative procedure and with the negotiations with the European Parliament.

These will be anything but easy: a rapid overview of the amendments tabled by the EP Rapporteur Dennis De Jong (LIBE Committee) and by the other MEPs of the Committee show two widely diverging views of what this Directive should be about. LIBE will vote its “orientation” on April 14 and dialogue can then start. So it is too early to say now if the EP will succeed in enhancing this right (maybe by taking inspiration from the Commission’s Recommendation and translating its content into a binding text).

Reblogged from: http://free-group.eu/2015/03/16/legal-aid-in-criminal-proceedings-will-the-european-parliament-improve-the-councils-general-approach/

[See also: Steve Peers' book chapter on EU law on legal aid in civil and administrative cases]
[Updates: the presumption of innocence Directive has been adopted (see later blog post here) and the Directive on child suspects' rights has been agreed (see later blog post here).

NOTES

Annex

FURTHER READING : Sources of the right to legal aid

The importance of the right to legal aid is linked with the right to an effective remedy and to a fair trial. Indeed as an ancillary right, it enshrines the principle of effective judicial protection and the right to access to justice, which is of primary importance in line with Human Rights declarations applicable in Europe.

Because of its ancillary dimension, the respect for the right to legal aid is provided for in a number of international instruments of utmost importance. It is guaranteed by Article 14 (3) of the International Covenant on Civil and Political Rights (ICCPR), and the fundamental principles on which it should be based are outlined in the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems adopted on 20 December 2012 by the General Assembly.

Article 6 (3)(c) of the European Convention on Human Rights (ECHR) sets out a “right to legal assistance where the defendant has insufficient means to pay for legal assistance, and to get free legal aid when the interest of justice so requires”.

Concerning the European Union as such, since the entry into force of the Treaty of Lisbon, the EU Charter has bound the EU institutions. Yet, Article 47(3) of the European Union Charter of Fundamental rights provides that “legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice”. Even implicitly, the need to provide for legal aid can be drawn from some other dispositions of the Charter such as Art. 48 (2), which states that “Respect for the rights of the defence of anyone who has been charged shall be guaranteed”.

Furthermore, the respect for the right to legal aid guaranteed by article 47(3) of the EU Charter has to be understood in light of the ECtHR case-law, which contributes to add to the strict procedural side of legal aid a more substantial element, through the requirement of enabling each suspect to present his or her case properly.

To assess the respect of this requirement, the ECtHR held in the case of Airey v. Ireland that the effectiveness of the right to access to justice throughout the right to free legal aid depends mostly on whether the individual in question would be able to present his/her case properly and satisfactorily without the assistance of a lawyer. Circumstances in which legal representation would be necessary for ensuring access to justice could be the complexity of the procedure before the court of first instance and complexity of the legal points involved. This assessment must also take into account personal circumstances of the applicant and the form of legal aid in question.
Therefore the right to legal aid can be limited as far as it is justified by a legitimate aim and that if there exists a reasonable relationship of proportionality between the limitation and the legitimate aim sought.

Barnard & Peers: chapter 26