At last a Directive protecting platform work – Now what?

 

Catherine Jacqueson, Professor of EU law and Alberto Barrio, post-doc on the WorkWel-project, Law Faculty, University of Copenhagen

Photo credit: conceptphoto.info, via Flickr 

Finally, the European Parliament formally adopted the directive protecting platform work on 24 April. It still needs to be formally endorsed by the Council too, but this is more a matter of procedure. Against all odds and at the very last minute, the Directive made it through the legislative rollercoaster. It was the Council which was holding back. It therefore came as a surprise that the Council adopted the compromise agreement on 11 March after having rejected this very same text on previous occasions. Suddenly, the blocking minority had vanished as Greece and Estonia no longer abstained and voted in favour of the compromise agreement. Germany continued its abstention because of internal struggles and France, the main opponent to the proposed Directive, seemed to have softened a bit its hard standpoint.

The approval of the Directive in the Council represents an important step towards greater protection of platform workers’ rights in the field of labour law and social protection. It is also a clear signal, which reinforces the EU social’s agenda following the Gothenburg summit of 2017 and the launch of the European Pillar of Social Rights. The Commission has – again – delivered. However, the compromises made to arrive there also mean that several provisions, particularly those regarding a rebuttable presumption of employment relationship are diminished compared to the European Commission’s proposal. More importantly, very little of the European Parliament’s proposition to further strengthen the protection of platform workers in its common position was introduced in this compromise version.

A watered-down presumption of employee

The proposal is much watered down at the end, especially in respect of its flagship provision creating a presumption of employee for those operating on labour platforms such as Deliveroo, Uber and Bolt. It leaves it to the Member States to decide upon which criteria the presumption should apply and thus fails to establish a level playing field between States, markets, businesses and providers. Some may argue that such ‘loose’ presumption creates more problems than it solves. Member States are also explicitly not required to apply to the presumption in the fields of social security and tax law, which may hinder achieving the expected increase in public authorities revenue of up to EUR 3.98 billion. The Member States could not agree that the directive should require a spillover effect to other legal fields at national level, but each State is free to do so. The sensitive issue of the EU’s competence might be lurking here. But even a watered-down version imposes a clear obligation on the EU States to insert such presumption, which ultimately could be challenged before national courts and end before the ECJ. Furthermore, national discretion is contained by some safeguards imposed by EU law and the case-law of the ECJ. Importantly, the directive carves it out in stone that the presumption should be based on facts indicating control and subordination and not on the supposed agreement of the parties. The Member States can be flexible in interpreting these criteria in line with the digitalization of the labour market. The directive requires States to set up procedural safeguards to enforce the legal presumption of employee. Thus, the directive is more a procedural one than one on substance. Again, the Member States are free to design them as long as they make it ‘effectively easy for the person performing platform to benefit from the presumption’ (recital 32). The fear here is that it could lead to more legal challenges concerning employment status - this time regarding the presumption instead of the status itself. Indeed, the presumption does not lead to automatic reclassification as employees. Only time will show the added value of the presumption and in which country it was most effective.

What is left?

In contrast, the detailed chapter on algorithm management may have real added value. At least on the paper. It is the EU’s first attempt to regulate algorithms within the context of work. Unlike the AI Act which has been formally adopted by the European Parliament, it does not rely on self-regulation but imposes specific obligations and prohibitions on platforms. It is rather ambitious, and interestingly most of its provisions apply also to the self-employed taking thereby a holistic approach. The Commission’s draft was left quite untouched until January where a few changes were inserted. The directive puts flesh on the dry provisions of the GDPR. It builds on the Regulation prohibiting the processing of some personal data and also the use of biometric data to predict future behaviour, which conflicts with fundamental rights such as the likelihood of pregnancy. It goes further than the GDPR, as it obliges platforms to open the black box on how they are designed and work. Likewise, human oversight is not only required where the platforms take a decision but also, for example, when they monitor data.

Furthermore, the directive is an improvement in terms of transparency and accountability of the platforms. Thus, the agreed version requires platforms to report and disclose certain information to relevant authorities including declaring the performance of platform work, as well as the number of persons doing so on a regular basis. The intention is both to get data and monitor the platforms, which could serve to improve enforcement of applicable rules in both internal and cross-border situations. This part has also been left quite untouched from the Commission’s original version with the removal of only a few of the criteria which need to be reported.

All in all, the directive is a clear signal that platform work and algorithm management should not be left unregulated. It is a hard law initiative with quite some softness. Its effectiveness in protecting those operating on the labour platforms will thus depend very much on its implementation and enforcement at national level, which will inevitably vary across the EU and the internal market…

 

 

The Council must swiftly implement a legal framework akin to the CEOS for staff employed in CSDP missions: Reflections on the Jenkinson litigation (Case C-46/22 P)

 

Antje Kunst*

Photo credit: Jan-Tore Egge, via Wikimedia Commons

Introduction

The Court of Justice of the European Union in its judgment in Jenkinson v Council and others ( Case C-46/22 P) of 18 January 2024 dismissed the appeal brought by Mr. Jenkinson, an Irish national, which has implications for thousands of staff serving in international missions of the EU (EU missions) under the EU’s Common Foreign and Security Policy (CFSP) in third states.

Mr. Jenkinson’s defeat before the Court of Justice is not a victory for the defendants: the Council, the Commission, the European External Action Service, and Eulex Kosovo. It is clearly not in their interest that the General Court’s findings in the judgement under appeal, Case T‑602/15 RENV have been upheld. Also, it is a shame that the Court of Justice did not express any views on one of the main claims in this litigation regarding the Council’s failure to introduce a legal regime comparable to the Conditions of Employment of Other Servants of the European Union ("CEOS").

Instead, the Court of Justice held the related arguments were inadmissible or unsubstantiated, without offering any views by passing on the merits of those arguments. This is a missed opportunity, also taking into account that the General Court in Stockdale v Council and Others (including the European Union’s Special Representative in Bosnia and Herzegovina) (T‑776/20), has already made certain findings in this regard.

Applicability of Private International Law (Rome I Regulation)

Jenkinson’s claim was that the EU did not envisage that private international law, i.e., an EU Regulation on the law applicable to contractual obligations (the Rome I Regulation) would be applicable to public law contracts such as those at issue in the case. (para. 79 of the Judgment) The Court of Justice disagreed: ‘since the General Court was seised pursuant to an arbitration clause under Article 272 TFEU’, it was necessary in the absence of any choice of the parties of the applicable national substantive law for the Court to identify it (para. 88 of the Judgment).

The Court of Justice held that the General Court was correct in taking recourse to the Rome I Regulation, to do so. It did not interfere with the General Court’s determination that Irish law was the applicable national substantive law governing Mr. Jenkinson’s claim for a requalification of the series of fixed-term contracts, and that based on Irish law, Mr. Jenkinson’s claim was dismissed (see paras. 123 -163 pp. of the Judgment)

Application of various national laws to staff working for the same employer

Only towards the end of the Judgment the Court of Justice acknowledged that the application of various national laws might, in practice, result for members of Eulex Kosovo’s contract staff being treated differently as regards the rights conferred on them and the obligations imposed on them in a given situation. (para. 262 of the Judgment)

However, it followed from the contractual nature of the relationships that, in the absence of a common European regime applicable to the members of Eulex Kosovo’s staff, the substantive rules intended to supplement the contractual terms are derived from a national law which will have been identified under the rules of private international law. (para. 267 of the Judgment)

It concluded that Mr Jenkinson had failed to show that, in the circumstances of the present case, the application of different substantive rules of national law to the members of Eulex Kosovo’s international staff constituted a breach of the principle of non-discrimination. (para. 271 of the Judgment)

It is surprising that the Court of Justice, unlike the General Court, expressed concerns about that similar disputes of contract staff working in EU missions will be decided differently depending on what the identified national law prescribes but then did not draw any consequences from this.

In this respect Stephan Marquardt, Eszter Orgovan (Counsels for the EEAS in Case C-46/22) and Emmanuelle Raoult (Counsel for Eulex Kosovo in Case C-46/22) stated, albeit in their personal capacity, in a recent academic contribution on the Jenkinson case:

“Having recourse to the applicable national law … carries the risk of diverging outcomes of similar disputes, notably regarding possible claims for damages, where the conditions for such claims may differ from one legislation to the other.”

(See Stephan Marquardt, Eszter Orgovan and Emmanuelle Raoult, in The European Union's Contribution to International Peace and Security, Chapter 6: ‘The Legal and Institutional Nature of EU Civilian Crisis Management Missions in the Light of the Case Law of the Court of Justice of the European Union’).

This is a legitimate concern that the defendants have, and here, was to the detriment of Mr. Jenkinson. Had the national law of another state (e.g., another Member State, or third state) applied, the requalification claim of a series of fixed-term contracts to a permanent contract might have succeeded, and the outcome in a similar action would be different. Not only that, a claim for damages might have succeeded too.

Other similar cases pending

Different outcomes could happen in future case, including pending cases, which are currently stayed and concern similar actions involving members of the international staff of Eulex Kosovo: BL and BM v Council and Others (T‑204/19); QP and Others v Council and Others (T‑183/21); and RI and Others v Council and Others (T‑190/21). In relation to a different mission there is the case of Stockdale v Council and Others (including the European Union’s Special Representative in Bosnia and Herzegovina) (T‑776/20). Different outcomes could also occur in future similar litigation, given that it is likely not Irish law will apply in those cases. This could also lead to irreconcilable judgments.

Claim of failure to adopt a legal regime comparable to the CEOS

In his initial application stretching back to 2017, Mr. Jenkinson sought compensation on the basis that the Council, Commission, and the EEAS failed to comply with their obligations, including to recruit him under a legal regime comparable to the CEOS. 

In his appeal in Case C-46/22 Jenkinson argued that the General Court infringed Article 336 TFEU by holding that the Council had lawfully delegated to the Head of Eulex Kosovo the power to adopt the conditions of employment of international civilian staff. (Article 336 TFEU provides ‘The European Parliament and the Council shall, acting by means of regulations in accordance with the ordinary legislative procedure and after consulting the other institutions concerned, lay down the Staff Regulations of Officials of the European Union and the Conditions of Employment of other servants of the Union.’)

The infringement of Article 336 TFEU also resulted from the fact, that the conditions of employment of international civilian staff were laid down in the contracts between the Head of Eulex Kosovo and the members of that mission's staff, whereas they ought to and should have, instead, been decided by the Council. According to Mr. Jenkinson, it was for the Council to adopt conditions of employment for international civilian staff similar to those contained in the CEOS (para. 65 of the Judgment)

The Court of Justice noted that Mr. Jenkinson, before the General Court, had made submissions regarding the non-existence of a framework similar to the CEOS for hiring staff for those missions. The Court of Justice then took issue with the fact that Mr. Jenkinson had not sought a declaration from the General Court that there had been an infringement of Article 336 TFEU through the failure to adopt, on the basis of that article, a legal regime applicable to employment situations such as that of Mr Jenkinson (para. 71 of the Judgement). Arguably, he should have.

In this context, the Court of Justice rejected Mr. Jenkinson’s complaint in the appeal, that the application of the substantive national law applicable to his contractual relationship constituted an infringement of Article 336 TFEU by reason of the absence of a legal framework adopted on the basis of that article. According to the Court of Justice, because the complaint was not raised before the General Court, it was consequently found both inadmissible and unfounded (paras. 72, 73 and 90 of the Judgment).

This is significant, as any contract staff working in an EU mission in a similar future action could make submissions the Court of Justice considered were missing and seek such declarations.

Plea of Illegality regarding Joint Action 2008/124 establishing the Eulex Kosovo

The Court of Justice also rejected Mr. Jenkinson’s arguments regarding a plea of Illegality pursuant to Article 277 TFEU, specifically that Article 9 (3) and Article 10(3) of Joint Action 2008/124 infringes Article 336 TFEU (paras. 38, 46 and 47 of the Judgment). Those provisions state that Eulex Kosovo may also recruit international civilian staff, as required, on a contractual basis and that the conditions of employment and the rights and obligations of such staff are to be laid down in the contracts between Eulex Kosovo and the members of staff.

The Court of Justice referred to the General Court’s finding, that, even supposing that the appellant had in fact raised a plea of illegality against Joint Action 2008/124, on the basis of Article 277 TFEU, it had to be held that that plea was not substantiated. The Court of Justice did not interfere with the General Court’s finding.

The plea of illegality regarding Joint Action 2008/124 could be further substantiated in future litigation before the General Court in a similar action with the consequence that the Court of Justice would have to examine the alleged unlawfulness and whether there is an infringement of Article 336 TFEU.

National law vs EU staff law resolving the dispute

Mr. Jenkinson further argued that the application of national law by the General Court would be contrary to the principle of non-discrimination in that it entails three instances of unequal treatment:

-          first, Mr. Jenkinson being treated differently to the servants of the European Union whose conditions of employment are to be determined exclusively by the Council and the Parliament pursuant to Article 336 TFEU.

-          second, the servants of the European Union, such as Mr Jenkinson, and national workers governed by private law being treated the same,

-          third, international staff of different nationalities working for the same employer under the same conditions and circumstances being treated in a discriminatory manner.

 (see para.  95 of the Judgment).  

Again, this complaint was rejected by the Court of Justice as a new complaint and rejected as inadmissible as it was not raised before the General Court, and the Court of Justice did not make any findings on the substance in this regard (para. 106 of the Judgment).

Also, this very compelling discrimination argument, in particular regarding international staff working for the same employer (i.e., international staff to whom the EU Staff regulations apply and international staff to whom national law applies), could be raised by applicants in future litigation before the General Court.

Conclusion

The fact that the Court of Justice has not interfered with the General Court applying national substantive law to the dispute is highly problematic for the Council and the EEAS for the reasons set out in the above-mentioned academic publication. In the future therefore, it is wholly unpredictable how the national substantive law would govern other similar disputes for staff in EU missions. This bears considerable financial risks for the defendants. It also bears risks of future litigation in which fundamental rights concerns will be raised, in particular a breach of the principle of equal treatment and the prohibition of discrimination.

The Court of Justice refrained from ruling that the Council’s failure to adopt a legal regime for staff in the EU missions comparable to the CEOS is unlawful which would have obliged the Council to act. Notwithstanding, the ruling shows that it is no longer acceptable to keep the status quo. The financial risks associated with future similar litigation, and the related uncertainties of the outcomes under the case law of Jenkinson, should be compelling reasons for the Council, the decision-maker within the CFSP, to act.  Also, what the Council back in 2008 establishing Eulex Kosovo might not have been able to reach a consensus on might be acceptable,16 years later.

This would be in accordance with the view expressed in an academic article, the President of the General Court, Marc van der Woude recently:

In light of the cases that have appeared before the CJEU in this area, that, “the precise scope of the protection to which employees are entitled in a community of law, still needs to be defined. Preferably, it should be aligned on the level of protection to which EU staff regularly employed by the EU institutions can already aspire.”

(See, M. van der Woude, ‘The European Union’s Engagement With Questions of Strategic Autonomy and Security: Do EU Courts Have a Role to Play?’, (2023), European Foreign Affairs Review, Volume 28, Issue 4, pp. 311–322).

 

*Antje Kunst is an international lawyer and a member of Pavocat Chambers advising and representing individuals in a wide range of matters in the field of the EU’s Common Foreign Security Policy (CFSP) and takes instructions from individuals challenging a wide range of decisions including EU employment cases to EU and UN sanctions before the EU courts and international bodies.

 

Take this job and shove it: the revised EU law on non-EU migrant workers

 

Professor Steve Peers, Royal Holloway University of London

*Text updated Dec 22 2023, to add a link to the agreed text of the Directive, and April 12 2024, on its final adoption 

Photo credit: Lasse Fuss, via Wikimedia commons

Overshadowed somewhat by the agreement on asylum legislation, the EU Member States and the European Parliament have also this week agreed on an amendment to EU law on migrant non-EU workers, known as the ‘single permit Directive’. Unlike the asylum deal, which (subject to seeing the legal texts; I’ll comment more when they are available) seems at first sight to be a reduction in standards, the revised single permit Directive is a modest but useful improvement in standards applicable to migrant workers. [Update: the revised law was officially adopted in April 2024.]

Background

The current single permit law dates back to 2011. It does not regulate the numbers of migrants coming from non-EU countries to seek work in Member States (the Treaties state that only Member States can regulate that).  Nor does it regulate the substance of when non-EU labour migrants are admitted (ie issues such as shortage occupations, pay thresholds or other criteria for admission). Rather it regulates two issues: the procedural aspects of applying to be a migrant non-EU worker in the EU, and the equal treatment of such migrant workers. (Note that there are also EU laws on specific groups of migrant workers, which regulate the details of admission of non-EU workers in more detail: the Blue Card law on highly skilled workers; the seasonal workers Directive; and the intra-corporate transferees Directive. The EU law on admission of non-EU students and researchers is also relevant to academic staff and trainees). There is limited CJEU case law on the 2011 Directive: all of it concerns equal treatment in Italy. The UK, Ireland and Denmark opted out of the law – although it has nevertheless become applicable to UK citizens who seek to move to the EU as labour migrants post-Brexit.

Believing that the law needed updating to streamline the admissions process and strengthen equal treatment, the Commission proposed replacing it with a new version in April 2022. (See also the impact assessment on the new proposal, and the 2019 fitness check and report on implementation of the 2011 law) At the same time, the Commission proposed replacing the EU law on long-term resident non-EU citizens (see my comments on that proposal here and here, and on the Council’s position here). The latter proposal is taking longer to negotiate.

The European Parliament and the Council adopted their positions on the single permit proposal in spring of this year, and have now concluded their negotiations. Again Ireland and Denmark opted out, and the law will be relevant to Brits who move to the EU. The revised law (the ‘2024 Directive’) will likely be formally adopted in the spring of 2024, and Member States will have two years to adapt their law to comply with it. The following describes the current law, while explaining how the 2024 version will change it; it also indicates which Commission proposals for amendments were rejected.

Scope of the single permit law

In addition to non-EU citizens admitted for work, who are covered by both the procedural and equal treatment parts of the Directive, the equal treatment part of the Directive also applies to non-EU citizens who are admitted for other reasons, but who are allowed to work. However, several groups of non-EU citizens are excluded from its scope, usually because they are subject to more specific rules in other EU law: non-EU family members of EU citizens who have moved between Member States; citizens of countries which have a free movement treaty with the EU, and their families; workers who are posted to provide services (the Commission’s proposal to clarify whom this exception refers to was rejected); applicants or workers who are seasonal workers or intra-corporate transferees (the 2024 version will define these groups by reference to other EU law); au pairs (the Commission’s proposal to define them by reference to EU law was rejected); who have applied for or obtained temporary protection (adding a reference to EU law; on the position of those fleeing the invasion of Ukraine, see here; the European Parliament’s amendment to drop this exclusion failed); who have applied for or obtained refugee status or subsidiary protection on the basis of EU law; who are EU long-term residents as defined by EU law; who have applied for or been admitted as self-employed workers; whose expulsion is suspended (the European Parliament tried to drop this exclusion too); or who have applied for or been admitted as seafarers.

Member States may also disapply the procedural part of the Directive (but not the equal treatment part) to those who were admitted for less than six months (the European Parliament tried, but failed, to cut this to three months), or who were admitted to study; and the procedural part does not apply at all to those admitted on the basis of a visa.

The biggest change to the scope in the 2024 version is that the equal treatment part of the Directive will now apply to the beneficiaries of national protection (as distinct from EU-harmonised asylum law), if that national law allows them to work. Applicants for national protection are still fully excluded. This is a compromise between the Commission and European Parliament, which wanted to drop this exclusion for applicants for and those holding national protection status fully, and the Council, which wanted to retain it fully.

The single permit process

The 2011 law provides that a single permit is both a work permit and a residence permit, issued on the basis of a single application. Either an employer or employee applies for it (or both, if a Member State allows that). Applications must be made from outside the country, although Member States may allow applications for those who are legally present. The 2024 law will liberalise this, by always allowing in-country applications from non-EU citizens who are legally resident on the basis of a residence permit; Member States may allow in-country applications by those who are otherwise legally present. (The Commission and European Parliament wanted to require Member States to consider in-country applications from the latter group, but allowing in-country applications from holders of residence permits was as far as the Council was willing to go).

Member States must decide on single permit applications within 90 days, cut from four months under the current law at the behest of the European Parliament. Also, the 2024 law will streamline this further by requiring that this time limit also covers time to check the labour market (where national law provides for this). But the Commission’s more ambitious proposal (backed by the European Parliament) to streamline the process even more by applying this time limit also to the issue of a visa was rebuffed by the Council. So was the European Parliament’s attempt to cut the time limit to 45 days in certain cases. It will still remain possible to extend the deadline in exceptional cases.

The European Parliament’s attempt to introduce a minimum period of validity for single permits (two years for an indefinite contract, otherwise the duration of the contract) was not accepted by the Council, so this issue remains regulated by national law.

The current procedural rights to know the reasons for a rejection of an application or withdrawal of a single permit, and to challenge that decision in court, are retained. They are strengthened by adding requirements to consider the individual case and the principle of proportionality, at the European Parliament’s behest. The provisions on access to information will be expanded, including fees, legal redress and workers’ organisations – those additions again at the European Parliament’s behest. On application fees, it will now be specified that they must not be excessive; the European Parliament’s amendment to specify that an employer could not collect the fee from the worker (where the employer pays the fee) was accepted.

Employment rights

The current Directive provides for basic rights to live in the country and carry out employment once the single permit has been issued. The Commission sought to go further, and add two further rights of fundamental importance to the position of non-EU workers: the right to change employer and the protection of status in the event of unemployment. In both cases, the Council sought to offer much less improvement and the European Parliament sought to offer much more; and in both cases, the end result was a compromise.

Changing employer

Currently, this issue (like unemployment) is left to national law. Therefore it is not accurate to say that the 2011 directive requires workers to stick with their current employers; rather the Directive does not stand in the way of most Member States insisting upon such a requirement (for the details of which Member States require this, see the impact assessment).

The Commission proposed that workers could change employer, subject only to the option for Member States to require notification and a check of the labour market situation; this could be suspended for 30 days while Member States did checks. The Council position provided that Member States also could recheck the original conditions of admission, check a possible change of occupation, suspend the job move for 90 days (not 30) and require a minimum period with the first employer (but no more than a year), subject to an obligation to allow earlier employer changes in ‘exceptional’ cases. The European Parliament would have required notification but would only have allowed labour market checks in certain cases. The final text of the 2024 directive allows for notification and labour market checks, with a 45 day period to do checks (with an exceptional 15 day extension), and the possibility for Member States to require no more than six months with the same employer before attempting to change employer – subject to an obligation to let the worker change employer earlier if the employer has seriously breached the employment contract.

Unemployment

The Commission proposed that the worker could stay for three months of unemployment, and if they found a new job after they could stay for 30 days more while Member States did checks. The Council position cut that to two months over the entire validity of the permit. The European Parliament version provided for a nine month period, with a 12 month extension in the event of a ‘serious violation’ of the worker’s rights by an employer. The compromise in the final text of the 2024 directive is three months’ unemployment over the validity of the permit – rising to six months after two years holding a single permit, although for periods of unemployment above three months Member States can require the worker to have sufficient resources without recourse to social assistance. Moreover, if there are reasonable grounds to believe that a worker has suffered particularly exploitative working conditions, the unemployment period can be extended by four months.

Equal treatment

First of all, a reminder that as noted above, the equal treatment provisions of the Directive have a wider scope, applying also to those admitted for other reasons but allowed to work, and now to be extended also to those with a form of national protection.

There is a long list of equal treatment rights, but also a long list of exceptions. The Commission proposed that the possible derogation from equal treatment as regards housing be narrowed so that it applied only to public housing, and that those admitted on the basis of a visa have equal treatment as regards family benefits. The final text accepted the first of those amendments, subject to qualifying wording (and an explanation in the preamble, inter alia on the importance of workers having a choice not to have to take housing tied to the employer), but rejected the second (at the Council’s behest). There are also elaborations on the work-related equality rights.

Finally, in addition to some amendments to the obligations to provide information on the public, there are two wholly new provisions on bad employers: one on public sector monitoring and checks, and the other on workers’ rights of individual redress against them.  

Comments

It is obvious that the Member States in the Council were willing to accept a lot of the proposals from the Commission, as well as many of those from the European Parliament. The social democratic party in the Parliament has taken credit for insisting on these amendments, and indeed it should be congratulated if it had the main role, because the agreed law does improve the position of non-EU migrant workers. But we should not forget that as assiduously as they defended migrant workers’ rights, the social democrats (and liberals) were simultaneously reportedly throwing asylum seekers and refugees under the bus in the asylum negotiations.

To recap, the main changes to the current law are: rights to change employer and protection during unemployment; an extension of personal scope of the equal treatment rules (and their qualified extension to private housing); monitoring of, and facilitation of challenges against, bad employers; in-country applications for all holders of residence permits and a shorter deadline to decide on applications.

The main points rejected by the Council concerned visas: including the visa process within the deadline to decide on applications; and equal treatment in family benefits for visa holders. The main successes of the Parliament (besides defending Commission proposals, particularly as regards changes of employer and unemployment) are the shorter deadline to decide on applications, and an extra stay if victimised by a particularly vile employer.   

Indeed, one striking feature of the amendments is how much they aim to protect against bad employers – not only as regards that possible extra stay, but also as regards redress against them and greater monitoring of them. The provisions on private housing, and also obviously protection in the event of unemployment and the right to change employers, implicitly help to protect against exploitative employers too. A set of revisions on the law on migrant workers that mainly concerns how to protect them against predatory employers could be seen as a sign of late capitalism.

While all of the revised law formally concerns immigration, most of it is in effect about the relationship between workers and their employers: only the provisions on in-country applications and application deadlines are immigration law in the purest sense. Of course, any law on migrant workers can only be fully understood in context as an aspect of labour markets; the situation on the labour market will in turn be fundamental in practice for any migrant worker who contemplates changing employer, or who is looking for a new job during unemployment. And the key points left to national law (admission quotas, conditions of admissions) are also strongly affected by how labour markets operate in practice. Leaving these aspects of economic migration to national law mirrors the aspects of employment law as such which are left to national law by the EU, in order to take account of differences between Member States as regards the functioning of labour markets and traditions of employment regulation.

 

 

The proposal on adequate minimum wages in the European Union: Striving for fairness, less so adequacy

 

Ane Aranguiz, Postdoctoral Researcher, University of Antwerp

 

Less than a year after the Commission announced its commitment to an initiative on minimum wages, on 28 October 2020 the Commission finally presented the fiercely criticized proposal for a directive on adequate minimum wages. The Commission had to find an balance on the tightrope of criticisms en masse regarding, inter alia, its lack of competence, concerns regarding the autonomy of social partners and the sustainability of collective bargaining systems or the impact on the competitive advantage of lower wages on certain Member States.

 

Background

 

Over the last years, low wages have not kept up with other wages in many Member States and recent labour structural trends such as globalization, digitalization and the upturn of non-standard employment have resulted in increased job polarisation leading to an increased share of low-paid and low-skilled jobs. These trends have further contributed to the erosion of collective bargaining systems. Making matters worse, the recent Covid-19 crisis is particularly hitting sectors with a higher share of low-wage earners and having a disproportionate impact on disadvantaged groups such as women, young, low-skilled workers or people with disabilities.

 

Ever since the adoption of the European Pillar of Social Rights (EPSR) in 2017, the European institutions have been committed to delivering more effective social rights to the European society. The latest initiative relates to a proposal for a directive on adequate minimum wages in the EU, implementing principle 6 EPSR which aims at providing better working conditions, addressing adequacy of minimum wages to contribute to improving the fairness of the labour market in the EU and to stimulate productivity and socioeconomic progress.

 

The initiative was first addressed in the Political Guidelines for the Commission 2019-2024. In January 2020, the Commission presented its communication on ‘building a strong social Europe for just transitions’ alongside the first-stage consultation where social partners were consulted on the need for a potential initiative on minimum wages and its possible direction. The second-stage consultation, between June and September, dealt with the content and the legal instrument. In view of a lack of agreement among the social partners to enter into negotiations to conclude an agreement according to Article 155 TFEU and after carrying out an impact assessment following the policy on Better Regulation, the Commission presented its proposal for a Directive.

 

Content

 

On the basis of Article 153(1)(b) TFEU on working conditions and Article 153(2)(b) TFEU, the Commission puts forward a directive that aims at ensuring that work is remunerated adequately as to allow for a decent living wherever they work. The design of the directive is thought to take into account and adapt to country specific characteristics, therefore respecting national competences, the contractual freedom and autonomy of social partners. Moreover, it has the objective of promoting collective bargaining on wages, ensuring formal coverage and guaranteeing compliance with existing collective agreements of statutory minimum wages.

 

To this end, the proposed directive is structured in four chapters: General provisions (Articles 1-4: subject matter, scope, definitions, promotion of collective bargaining on wage setting); statutory minimum wages (Articles 5-8: adequacy, variations and deductions, involvement of social partners in statutory minimum wage setting and updating and effective access of workers to statutory minimum wage); horizontal provisions (Articles 9-12: public procurement, monitoring and data collection and penalties); and final provisions (Articles 13-19: implementations, dissemination of information, evaluation and review, non-regression and more favourable provisions, transpositions, entry into force and addresses).

 

Among these, there are a number of provisions that need to be emphasized. In the first place, attention should be paid to the scope of the proposal, which applies to every worker in the Union who has an employment contract or employment relationship as defined by law or collective agreements and in consideration with the case-law of the ECJ. What is interesting is that recital 17 of the preamble complements this by specifically addressing categories that are often disputed to qualify as ‘workers’, including domestic workers, on-demand workers, intermittent workers, voucher based-workers, bogus self-employed, platform workers, trainees and apprentices. Remarkably, it enshrines that it is the actual performance of work and not the work description provided by the parties what determined the existence of an employment relationship. This provision is clearly designed to ensure that non-standard forms of employees are covered by minimum wages, regardless of whether they have traditionally been considered as workers insofar as they fulfil similar criteria.

 

Differently, Article 4 provides for the promotion of collective bargaining, including the obligation to install a framework to enable collective bargaining where coverage is less than 70%, which requires an action plan to be made public and presented to the Commission. In the case of statutory minimum wages, the proposal enshrines a provision on adequacy in its Article 5, imposing an obligation on Member States to establish national criteria in a stable and clear way that includes (at least) the purchasing power of minimum wages, the general level of gross wages and their distribution, their growth rate and labour productivity developments. Member States are further obliged to use indicative reference values commonly used at the international level. While the preamble refers to the at-risk-of-poverty threshold in this regard as a possible aid to assess adequacy, the provision does not include a specific reference value that (even remotely) sets a threshold. Article 6, in turn, limits possible variations and deductions that allow different rates of statutory minimum wages, and provides that in any case they should be objectively justified and proportionate.

 

In addition, the monitoring system provides for a platform of supervision, data collection and evaluation of the current framework. Article 10 requires, inter alia, a report on annual basis, statistics and information (disaggregated by gender, age, disability, company size and sectors) which the Commission will assess and report accordingly to the Council and the Parliament.

 

These are complemented with the more common provisions regarding remedies, implementation, non-regression, dissemination, evaluation and transposition.

 

Analysis

 

In spite of vast criticisms, this is a rather strong proposal, if not so much in terms of adequacy, at least in terms of ensuring access to minimum wages, transparency and compliance. The proposal has it written all over how much the Commission has tiptoed around the concerns regarding the autonomy of the social partners and the possible negative effects on collective bargaining systems. Besides the obvious provisions on the promotion of social partners (Articles 4 and 7), the preamble addresses this concern extensively (recitals 18-20) and an entire chapter (2) is dedicated solely to statutory minimum wages to make a clear separation between the two systems.

 

In all certainty, one of the strongest points of this proposal relates to its broad coverage. A combination of a broad concept of worker, an obligation to put a framework to promote collective bargaining in areas not yet covered by collective agreements and the clear limits to variations and reductions in the case of statutory minimum wages, will in all likelihood (if adopted) lead to the coverage of many workers who are not currently able to access minimum wages. Complemented with a regular monitoring system and access to effective remedy, these provisions could have the desired effect to bring ‘fairness’ to the labour market by ensuring that many more are covered by minimum wages.

 

As was to be expected, however, the proposal is weaker from an adequacy point of view. On a positive note, Member States with statutory minimum wages need to take into account important elements when determining the level of minimum wages. These elements aim at giving important insight regarding the adequacy of minimum wages and whether they allow recipients access to essential services and participate in society. There is, however, no indication on how to use these elements or a certain ‘threshold’ of ‘standard’ that Member States should aim to strive, such as the at-risk-of-poverty threshold (60% of the equivalized median wage), even though in 2018 most statutory minimum wages did not suffice to lift people out of poverty. This might seem surprising, since one of the aims of the Directive is to combat in-work poverty, but it is completely understandable considering the legal basis chosen by the Commission that forbid the regulation of the level of pay (Article 153(5) TFEU). While this provision may certainly ensure some ‘fairness’ and transparency in wage setting mechanisms, minimum wages that lie below the poverty line can hardly be considered ‘adequate’. An alternative legal basis could have allowed to include sturdier commitments to adequacy instead.

 

Another point to warmly welcome is the link between the Directive and other fundamental rights instruments such as the EPSR, the Charter of Fundamental Rights (Article 31 CFR), the European Social Charter (Article 4) and the 131 ILO Convention. These links could act as aid of interpretation for Member States or courts in case of conflict and facilitate judicial dialogue between different authoritative bodies. The clear link to Article 31 CFR, moreover, ensures that the Directive will be read in line with the CFR. In this vein, while Bauer opened the door for the direct application of Article 31 CFR, without a clear reference in the directive it would be disputed that minimum wages are covered by the provision, since Article 31 CFR does not explicitly refer to the right to minimum wages.

 

Further strengthening the proposal, the monitoring system (which will be part of the European Semester) in addition to the access to Technical Support Instrument and the European Social Fund Plus to develop and improve the technical aspects of minimum wage is likely to facilitate a successful and effective implementation of the directive.

 

Conclusion

 

All in all, the Commission has put forward a strong initiative that aims at establishing ‘fair’ minimum wages, if not necessarily ‘adequate’ as the title of the proposal falsely prescribes.

It remains to be seen whether the proposal will in fact survive the brutal opposition to regulating minimum wages at the EU or at least in its current form. In view of the vicious antagonism, it is not unlikely that the proposal will be substantially watered down during the negotiations between the Council and the Parliament, if not completely abandoned after potentially becoming the fourth victim of the yellow-card procedure.

 

Barnard & Peers: chapter 20

Photo credit: Recruiting Times

Brexit and Labour Standards at the time of COVID-19 – To Converge or to Diverge, that is the Question

Jeff Kenner, Professor of European Law, University of Nottingham*

As the COVID-19 pandemic engulfs the world, requiring an unprecedented and, as of yet, unforthcoming global response, the idea of Brexit, the sheer self-indulgence and chicanery of Brexit, has quickly become remote from the minds of policy makers and peoples alike. Nevertheless, with negotiations on ‘forging a new partnership’ between the EU and the UK barely off the ground by mid-March 2020, as Europe went into lockdown, the UK Government has continued to insist that there will be no extension of the standstill post-Brexit transition period beyond the deadline of 31 December 2020 set by the EU-UK Withdrawal Agreement of October 2019. Any mutually agreed decision to extend that deadline must, under the Agreement, be made in matter of days, by 1 July 2020, almost certainly before the pandemic is over and there is any return to whatever will count for normal. With world GDP hurtling downwards,  businesses shuttered and ever spiralling worker lay-offs and redundancies, Brexiter ideologues seem prepared to test chaos theory to its limit by taking the UK out of the EU’s regulatory orbit and into a new age of borders, divergence and economic shock therapy from the beginning of 2021.  

In attempting to understand the rationale for this approach, the issue of social and labour standards quickly comes to the fore. If we assume that the UK means what it says, and there is no mutually agreed one-off extension of the transition period for ‘up to one or two years’ (Article 132 of the Withdrawal Agreement), then there will be less than six months in which to establish whether the UK is prepared to shift its stance and agree to non-retrogression, or what might be described as static alignment, of social and labour standards pertaining in the EU and UK at the end of the transition period. If the UK commits to static alignment to preserve a ‘level playing field’ (LPF) to prevent undercutting or social dumping, and to similarly maintain common standards in the areas of environment, climate change, tax and state aids, it may yet confound sceptics and facilitate an agreement with the EU within the timeframe.

Alternatively, if, notwithstanding its geographical proximity and interdependence with the EU, the UK chooses a path of labour market and social deregulation and divergence, pursuing a Singapore-type economic model, through a combination of ideology and a desire to secure a trade agreement with the United States, it could be hugely disruptive to the Single Market and, potentially, to the future of the European Social Model. Such a ‘no deal’ scenario, or ‘disorderly Brexit’ would require the EU to impose its Common Customs Tariff on UK goods under the rules of the World Trade Organisation. This would lead to immense short to medium-term economic problems for the UK - which exports 45% of its goods to the EU (House of Commons Library, 2018) - with a predicted fall of 5.5% in the country’s GDP and a doubling of unemployment to 7% (Bank of England, September 2019). Such problems will be magnified by COVID-19 and its aftermath. EU Member States, struggling to recover from the pandemic, would face a second debilitating wave of disruption as the UK, which imports 53% of its goods from the Union, would impose its own tariffs. The EU’s response to such a scenario would be a supreme test of its commitment to uphold Social Europe and its unity in a period when European solidarity is likely to be in short supply following the failure to burden share in response to the socio-economic crisis caused by COVID-19.

The UK left the EU on 31 January 2020. It was a unique moment. For the first time a Member State had departed from the Union and become a ‘third country’. Three and a half years had elapsed from the tightly fought referendum and, at the second attempt, the parties had settled the bare bones of their divorce with a revised version of the Protocol on Ireland and Northern Ireland annexed to the Withdrawal Agreement. Northern Ireland, territorially part of the UK but with its land border with the EU and its history of conflict, is tied by the Protocol, potentially indefinitely, to EU rules on customs and related areas of regulation considered necessary to avoid a border on the island of Ireland and preserve peace. The revised Protocol does not, however, address the issue of labour standards, unlike the original version which contained an Annex committing the parties, inter alia, to non-retrogression of the labour standards pertaining at the end of the transition period. Instead the issue is now left to the future relationship negotiations discussed below.

Under Article 50 of the Treaty on European Union the parties were required, almost as an afterthought, to take account of the ‘framework’ of their future relationship during the Brexit negotiations. This loose requirement was met by the issuance of a joint non-binding Political Declaration accompanying the Withdrawal Agreement. The Political Declaration loosely commits the parties to establish ‘the parameters of an ambitious, broad, deep and flexible partnership across trade and economic cooperation with a comprehensive and balanced Free Trade Agreement at its core’ (para. 3). It is perhaps reassuring that the Political Declaration states that the parties are determined to safeguard ‘high standards of free and fair trade and workers’ rights’ (para. 2). It must be understood, however, that back in October 2019 the parties were so focused on finding a solution to avoiding a regulatory border on the island of Ireland that there was little time spent on the Political Declaration and much of it, including this worker-friendly language, remained untouched from the previous version negotiated between the European Commission and the Government of the UK’s former Prime Minister, Theresa May, in November 2018.  

With the ascendancy of Boris Johnson to the position of Leader of the Conservative Party and UK Prime Minister in July 2019, followed by a resounding election victory five months later, the picture now looks very different.  On the one hand, May had trumpeted close alignment with EU labour standards, promising that workers’ rights would be ‘fully protected and maintained’ post-Brexit at least at EU levels or even building on them (Lancaster House speech, January 2017). In March 2019, following the adoption of the first version of the Withdrawal Agreement, May introduced proposals to safeguard EU-derived labour rights and require a report to the UK Parliament on any new workers’ rights introduced by the EU, raising the remote prospect of dynamic alignment with EU labour standards to close off the prospect of social dumping.  However, May ultimately failed to navigate the Withdrawal Agreement through the UK Parliament and consequentially resigned from the Conservative Party leadership. Following his General Election victory, Johnson, on the other hand, now with a majority in Parliament, promptly withdrew May’s proposals on labour rights from the legislation to implement the Withdrawal Agreement. Instead the Government announced that there would be a new Employment Bill but, to date, it has not been published and its ambitions are unclear (House of Commons Library, 20 December 2019).

Looking forward, the Political Declaration declares that the proposed Free Trade Agreement (FTA) ‘will be underpinned by provisions ensuring a level playing field for open and fair competition’ (para. 17). More bluntly, European Commission President, Ursula von der Leyen, has made clear that an FTA is contingent upon an LPF guarantee of ‘zero tariffs, zero quotas, zero dumping’ (London School of Economics speech, 8 January 2020). As regards labour standards, the Political Declaration enunciated that LPF provisions must encompass ‘robust commitments’ to ‘uphold the common high standards applicable in the Union and the United Kingdom at the end of the transition period in … social and employment standards … and include appropriate mechanisms to ensure effective implementation domestically, enforcement and dispute settlement’ (para. 77, emphasis added). Although the ILO is not mentioned, Union and international standards are the reference point for the LPF and, moreover, the parties are committed to ‘promote adherence to and effective implementation of internationally agreed principles and rules’ (para. 77).

There has, however, been much water flowing under the bridge since the Political Declaration was issued.  When the ink was barely dry on the document, a leaked UK Government paper revealed its view that the ‘interpretation of these [LPF] commitments will be very different’ and binding arbitration was ‘inappropriate’ (Financial Times, 25 October 2019). In response, the UK stated that it had ‘no intention of lowering the standards of workers’ rights’. Following the election, however, Johnson’s Government has indicated that it regards such commitments as merely rhetorical and not conditional for an FTA.  This was borne out in February 2020 when the UK published its approach to the negotiations (Command Paper 211). Its bottom line is that it will not negotiate any arrangement ‘in which the UK does not have control of its own laws and political life’ (para. 5). The UK Government has seized on the suggestion by the EU’s chief negotiator, Michel Barnier, that the UK’s desire post-referendum to leave the EU Customs Union and Single Market would mean that the EU would look to an FTA similar to the agreement between the EU and Canada (CETA). Barnier presented an illustrative single slide pointing to the Canada option at a very different stage of the process in December 2017.

For the UK, the reference to CETA presents an opportunity to suggest that labour standards should merely be promotional. In its negotiating strategy document, the UK notes that: ‘In line with precedent, such as CETA, the Agreement should recognise the right of each party to set its own labour priorities and adopt or modify its labour laws’ (para. 76). No reference is made to an LPF. At most the UK is prepared to agree to ‘reciprocal commitments not to weaken or reduce the level of protection afforded by labour law and standards in order to encourage trade and investment’ but these provisions ‘should not be subject to the Agreement’s dispute resolution mechanism’ (paras. 76-77). From this it can be discerned that the UK wishes to self-regulate its labour standards and could determine that any prospective domestic diminution of labour law might be unconnected with trade relations with the EU. In return, the EU would be expected to accept the UK’s commitment to reaffirm existing ILO principles and rights, which is a rather limited assurance given that the UK has ratified only 88 ILO Conventions, which includes the eight ‘core’ conventions but is significantly lower than several EU Member States including Spain, 133, France, 127 and Italy, 113 (ILO, NORMLEX, April 2020).

Not surprisingly, key Member States, notably France and Belgium, have demanded stricter LPF provisions in response to the UK’s negative messaging in order to prevent undercutting of labour standards even if it means that no agreement is concluded in 2020 (Financial Times, 23 February 2020). The EU’s ‘Negotiating Directives’ (Council of the EU, 25 February 2020), known as the ‘negotiating mandate’, set out the parameters for the Commission to negotiate with the UK. There has been a degree of internal compromise but, nonetheless, a marked toughening of the language used in the Political Declaration. Part 15 of the Negotiating Directives sets out a series of LPF conditions, specifically that ‘the envisaged agreement should uphold common high standards, and corresponding high standards over time with Union standards as a reference point, in the areas of [inter alia] social and employment standards’ (para. 94, emphasis added). Thus, the position of the EU has shifted from static alignment at the end of transition to a form of dynamic alignment without necessarily requiring full convergence. Turning to enforcement mechanisms, the document repeats the language in the Political Declaration on effective domestic implementation, enforcement and dispute settlement but adds a reference to the need for ‘appropriate remedies’ and seeks to reserve a power for the Union ‘to apply autonomous, including interim, measures to react quickly to disruptions of the equal conditions of competition in relevant areas, with Union standards as a reference point’ (para. 94). Such Union intervention would be anathema to the UK which makes clear in its negotiating document that there should be ‘no role for the Court of Justice’ in the governance arrangements (para. 6).

The EU’s LPF proposals identify the following areas of labour and social protection for alignment to the common standards applicable within the EU and the UK at the end of the transition period: ‘fundamental rights at work; occupational health and safety, including the precautionary principle; fair working conditions and employment standards; and information, consultation and rights at company level and restructuring’ and to ‘protect and promote social dialogue’ (para. 101). In a further sting in the tail for the UK, and possibly also to prevent backsliding within the EU, the mandate suggests that if the parties increase their respective levels of social and labour protection beyond these commitments the partnership ‘should prevent them from lowering those additional levels in order to encourage trade and investment’ (para. 110).

Moreover, building on the parties’ commitment to ensure sustainable development in the Political Declaration, the EU proposes that  the partnership ‘should include provisions on adherence to and effective implementation of relevant internationally agreed principles and rules’ including ILO conventions and the European Social Charter (ESC) of the Council of Europe (para. 109). The UK remains a member of the Council of Europe and has ratified the ESC. Finally, there would be a system of monitoring the implementation of commitments and the ‘social and environmental impacts’ of the partnership (para. 113).

On the face of it the differences between the parties are widening and could soon be irreconcilable. During the hiatus before negotiations resumed on 20 April, the Commission published a 440-page ‘Draft Treaty’ putting its negotiating directives into concrete form (UKTF (2020) 14). As the parties adapt to Zoom, Teams or other newly learned technologies, or even face to face, there will have to be compromises on both sides to reach agreement and an extraordinary amount of goodwill. Moreover, labour standards to ensure an LPF is only one of several issues, including fishing, Gibraltar and State aids, that threaten to wreck the negotiations. The position has been further complicated by a statement by the key UK’s ministerial negotiator, Michael Gove, that the UK is prepared to give up on tariff free and quota free access to the Single Market if it means committing to the EU’s demands for an LPF (The Independent, 5 May 2020).

A crunch point will be reached in the autumn of 2020 if not earlier. It is possible that there will be a fudged commitment to an LPF based on static alignment with enforcement only by the UK authorities subject to limited mechanisms for independent dispute settlement. For the EU this may be enough to move on from Brexit and concentrate fully on how to recover from the disaster of COVID-19. The toughened-up provisions having been presented in the negotiating mandate can be climbed down from assuming that this can be levelled with all Member States and the European Parliament. For the UK it may be much more difficult. It would have to accept the social acquis and be indefinitely tied to converged labour standards with, at most, gradual divergence over time if, somewhat optimistically, it is assumed that workers’ rights are considerably enhanced at EU-level in the next decade or, perhaps more likely, developed through the case law of the Court of Justice. The problem with concluding that there will inevitably be a fudged convergence is that the UK is temperamentally inclined towards having the sovereign right to diverge its labour standards even if it chooses not to exercise this divergence in practice for domestic political reasons. It wants to be ‘an economic competitor on [the EU’s] own doorstep’ as Chancellor Angela Merkel has warned the German Parliament (Politico, 11 September 2019). For Boris Johnson, at the zenith of his political power, the whole point of Brexit is to ‘take advantage’ of the ‘freedoms’ including what he euphemistically describes as ‘better regulation’ for the sectors in which the UK has a commercial advantage (The Guardian, 23 September 2019).

The EU is faced with a difficult choice. It can negotiate a ‘partnership’ which gives the UK enough latitude to accept the status quo in the interim but slowly diverge from common labour standards without effective EU oversight or remedial powers, or it can accept the likelihood that the UK will go its own way towards potentially more rapid divergence which, even if it does not create a ‘Singapore on the Thames’, will mean that there will almost certainly be no negotiable FTA in the short to medium-term. The economic and social pain that this choice will entail, on both sides of the English Channel, may be delayed by an extension of the transition period but it probably cannot be avoided.  For the EU, the choice to accept divergence may be the lesser evil in the longer run. It would provide an opportunity to show that more advanced social and labour standards offer a better path to economic prosperity and social cohesion in a more fragmented world. For the UK, it may advance the realisation of the stark reality of its isolation and the high economic and social price to be paid for alternative ‘deals’ with any of the United States, China or Russia. Over time the negative effects of divergence from EU standards could bring about the change in British mindset that is needed to return to the regulatory orbit of Social Europe, a move which could still fall short of re-joining the Union. For the time being, for both sides, whether to maintain convergence, be it static or dynamic, or embrace divergence, is an urgent question that must be answered soon.

*This is the English version of an editorial in Dirriti Lavore Mercati, 2-2020, ‘Brexit e tutele del lavoro al tempo del Covid-19: convergenza o divergenza, questo è il problema’. It was first published in English in the Regulating for Globalization Blog (Wouters Kluwer) – the author is grateful to the publishers for agreeing for this contribution to be published in this blog.

Barnard and Peers: chapter 27

Photo credit: Roger Blackwell, via Wikimedia commons

The Withdrawal Agreement Implementation Bill

Professor Steve Peers, University of Essex

After months of anticipation, we finally know the shape of the law which would govern the UK’s ratification of the revised withdrawal agreement: the EU withdrawal agreement bill. (See also the explanatory notes on the bill, and further documents) The government wants this to be fast tracked in a few days, in order to meet its deadline of October 31. This is an absurdly hasty approach to parliamentary scrutiny of a bill which runs to 115 pages, with 40 clauses and six schedules – especially given that the government has in the meantime been compelled to request an extension of EU membership pursuant to the Benn Act (discussed here).  

It’s a complex bill, and this blog post does not aim to be comprehensive: it’s a compilation of selected first impressions (see also my Twitter thread of initial reactions). Since the bill is closely related to the revised withdrawal agreement, my earlier analyses of that agreement (overview; transition period; dispute settlement; and citizens’ rights) may be relevant.   

Approval of the withdrawal agreement

First: the bill switches off both the specific rules for approval of the withdrawal agreement in the EU Withdrawal Act (the so-called ‘meaningful vote’), and the general rules for approval of international treaties in the Constitutional Reform and Governance Act (CRAGA). The effect of this is that as soon as the bill is passed, the government can ratify the withdrawal agreement without holding a further vote.

The transition period

As I noted in my earlier analyses of the revised withdrawal agreement, the agreement in effect creates a deferred no deal outcome – shifted from end October 2019 to end December 2020. That’s because the transition period set up in the agreement (which ensures the continued application of EU law to the UK) ends in December 2020. Note, however, that the provisions in the withdrawal agreement on citizens’ rights, the financial settlement and Northern Ireland will not expire at the end of the transition period. (In fact, for the most part that’s when the provisions on citizens’ rights and Northern Ireland kick in).

The possible deferred no deal outcome in December 2020 is therefore better described as a ‘no trade deal’ outcome. Can it be avoided, in the event that the UK and the EU have not negotiated a further relationship treaty on trade by that time (as seems highly likely)? Yes: it’s possible to extend that period by a period of one or two years, subject to the agreement of both sides in the Joint Committee set up to implement the agreement.

However, the circumstances are somewhat different from the extension of EU membership by the UK. There’s no underlying power to revoke the notification to leave any more. The decision can’t be taken at the last minute, like the membership extension decisions, because the withdrawal agreement requires the transition period extension decision to be taken by 1 July 2020. Moreover, the transition period extension decision requires a difficult negotiation on further UK contributions to the EU budget (the scheduled end-2020 to terminate the transition period coincides with the end of the EU multi-annual budget cycle).

In the bill, Parliament has a role in extension of the transition period. It must approve any government decision to extend it (as agreed with the EU). But there's no power for Parliament to require the government to make a request for an extension – and it’s government policy to leave at the end of 2020. (In the event that an extension is agreed, the bill would give effect to it by secondary legislation, similar to the EU Withdrawal Act provisions on extension of EU membership.) There’s already one proposed amendment by an MP to increase Parliament’s role; it will be important to see if an amendment like this passes.

During the transition period, the European Communities Act, loathed by Eurosceptics because it's the main domestic law basis for EU membership, comes back to life under the bill. The withdrawal agreement says that the UK has to apply new EU measures (other than those covered by UK opt outs) during the transition period, and there's provision in the EU for parliamentary scrutiny of such new EU measures. But needless to say, debating a motion on new EU measures in Westminster will have no impact on the EU side – given that the UK will not have MEPs or ministers at the negotiating table.

As a further measure to pacify Eurosceptics, there’s a parliamentary sovereignty clause. which is presumably intended to assert that Article 4 of the withdrawal agreement, which insists on the supremacy of the agreement in domestic law, doesn't overturn the basic principles of the UK constitution. There’s no small irony here, given that the Eurosceptics in question rejoiced when the government recently unlawfully suspended Parliament. In light of the Eurosceptics’ behaviour, Brexiting for parliamentary sovereignty makes as much sense as dieting for obesity.  

Implementing the withdrawal agreement

There's a general clause giving domestic legal effect to the rest of the withdrawal agreement other than the transition period. This includes the citizens’ rights provisions. I’ll focus on two aspects in more detail: citizens’ rights and workers’ rights.

Citizens’ rights

The citizens’ rights provision of the withdrawal agreement aim to preserve most of the same status that EU27 citizens in the UK, and UK citizens in the EU27, have on the basis of EU free movement law, if they moved before the end of the transition period in the withdrawal agreement. The specific provisions in the main part of the bill set out further powers for the government to implement it as regards: the application deadline for EU27 citizens; frontier workers; restrictions of entry and residence; grounds for deportation; appeals and judicial review; recognition of professional qualifications; social security; non-discrimination; and workers’ rights (in the context of free movement). All of these provisions refer back to the withdrawal agreement; they are not general power to do anything the government likes, even in breach of it.

The clause on the application deadline would be a good place to insert an amendment to ensure that EU citizens are not deported or subjected to any other detriment due purely to missing the deadline. Furthermore the bill should be amended to protect the position of those whom the UK is only protecting on a discretionary basis (for instance, the non-EU family members of UK citizens who return to the UK from an EU Member State, and those who are not working but whom the UK considers do not have ‘comprehensive sickness insurance’ because they rely on the NHS.

In addition, the withdrawal agreement requires the UK to set up an independent monitoring authority for EU27 citizens’ rights. This is established in a schedule to the bill. EU27 citizens can complain to this body about their treatment, and it can launch inquiries or court proceedings as a follow-up. However, it might be questioned whether the body is really independent, given the influence which the Bill gives the Home Secretary over appointments. A better approach would be appointments by an independent body or a parliamentary committee, or perhaps adapting the model for judicial appointments.

Workers’ rights

Some Labour MPs have brought themselves to support the withdrawal agreement based on promises for protection of worker’s rights. How substantial are these – in light of the removal from the withdrawal agreement of the protection for such standards (forming part of the UK-wide customs union backstop) in the earlier version of the agreement?

According to the bill, the government must release a statement as to whether a new bill goes below EU standards on employment law or not. But it can still propose a bill even if it drops below those standards. As for new EU legislation on workers’ rights, the government must report on whether they are higher than UK standards, and if so whether they intend to match them.

This leaves obvious gaps: what about secondary legislation related to workers’ rights? What about gaps between UK courts’ interpretation and the CJEU? And even the core commitments are not very impressive – a sort of Potemkin village of apparently solid promises which are actually empty facades. If Labour MPs fall for this, I have a red flag in Florida I’d like to sell to them.

A more genuine commitment would: rule out reduction of EU standards by means of secondary legislation; require the UK courts to keep to any minimum standard set by the CJEU unless an Act of Parliament requires otherwise, with the power for the courts to go above that standard; and match new EU legislation on workers’ rights unless Parliament votes against it (or at least, leave to Parliament the choice whether to match the new legislation nor not).  

Future relationship

The bill regulates the future relationship between the UK and the EU too. The government's negotiating strategy must be approved by Parliament (it’s not explicit whether Parliament could amend that strategy), and ratification of the resulting treaties must be approved by Parliament, in much the same way as approval of the withdrawal agreement under the EU Withdrawal Act. So we are promised more ‘meaningful votes’ in future – assuming that there are any treaties with the EU to approve.

But there’s a catch: any negotiating guidelines have to be ‘consistent with the political declaration’ on the future relationship, which suggests that this non-binding agreement between the UK and the EU attains a sort of binding effect in domestic law. But this declaration rules certain things out, such as a customs union or single market relationship. So, to paraphrase Henry Ford, the government is telling Parliament that it can vote for any negotiation strategy it likes – as long as it’s blue.

We can expect amendments to the bill on this issue, including on the question of a customs union. It has been argued that the opposition parties who want a different relationship with the EU should just roll over on this point and wait to win an election. But we had an election in 2017 – in which the future relationship with the EU was an issue. Those who voted for the opposition parties then voted for manifestos promising to support a close relationship with the EU; so why shouldn’t the opposition parties try to amend the bill to give effect to these preferences? After all, the government chose to hold an early election on the issue of Brexit, and lost its majority.

This goes back to underlying themes in the Brexit debate. Supporters of the government’s notion of One True Brexit gloss over that at various times this One True Brexit – which ‘everyone knew they were voting for’ – has constituted the first withdrawal agreement, the revised withdrawal agreement, and no deal at all. The government blames its likely inability to achieve its Brexit objectives by the end of October on judges judging, Remainers moaning, Parliament legislating, and the EU parking the bus in the Irish Sea. But at the root here is voters voting: depriving the government of its majority in an election in which they were asked about Brexit policy.  

Barnard & Peers: chapter 27

Photo credit: Jonathan Joseph Bondhus