Category Archives: Employment and Social Affairs

Commission’s Vision on EU Borders and Migration

By now you must have heard that the Mediterranean Member States are experiencing some serious difficulties in managing the wave of new migrants from North Africa. The governments of Italy and France have stepped in and suggested temporal reintroduction of border controls due to the migrant wave. Now the European Commission has issued its own Communication on migration.

The Commission notes that the EU is not fully equipped to help those Member States most exposed to massive migratory movements. That is why it believes that the feasibility of creating a European system of borders guards should be considered. The Commission also recommends adopting a risk-based approach and ensuring greater use of modern technology at land as well as sea borders.

The Commission advocates for a mechanism that would allow the EU to handle situations where either a Member State is not fulfilling its obligations to control its section of the external border, or where a particular portion of the external border comes under unexpected and heavy pressure due to external events. The mechanism should be used as a last resort in truly critical situations.

The Commission also calls for the incorporation of enhanced readmission obligations into the framework agreements concluded with third countries.

One important claim of the Commission is that a European entry-exit system would ensure that data on the crossing of the border by third country nationals would be available for border control and immigration authorities.

The Commission intends to present by 2012 a Green Paper on addressing labour shortages through migration in the EU Member States.

In general the Commission says that the EU should step up its efforts to address the drivers of migration with a special focus on employment issues, governance and demographic developments.

The Communication on migration is a well prepared and consistent document, but it remains to be seen how Member States will act on it.

New Directive on Patients’ Rights in Cross-Border Healthcare

Directive 2011/24/EU on the application of patients’ rights in cross-border healthcare has been published in the Official Journal. The directive applies to individual patients who decide to seek healthcare in a Member State other than the Member State of affiliation. It does not apply to the following:

  • services in the field of long-term care;
  • allocation of and access to organs for the purpose of organ transplants;
  • public vaccination programmes against infectious diseases.

Member States must ensure that the healthcare providers on their territory apply the same scale of fees for healthcare for patients from other Member States, as for domestic patients in a comparable medical situation (Art. 4, para.4).

The Member State of affiliation must ensure the costs incurred by an insured person who receives cross-border healthcare are reimbursed, if the healthcare in question is among the benefits to which the insured person is entitled in the Member State of affiliation (Art. 7, para. 1). The Member State of affiliation can determine the healthcare for which an insured person is entitled to assumption of costs and the level of assumption of those costs, regardless of where the healthcare is provided (art. 7, para. 3). The Member State of affiliation can also prescribe a list of the categories of healthcare that require prior authorization of the cross-border treatment (Art. 8).

Member States must adopt the necessary laws, regulations and administrative provisions by 25 October 2013.

 

 

The Pact for the Euro: a Summary

The heads of state and government of the еurozone Member States have adopted a new competitiveness pact, called “A Pact for the Euro”. The pact comes as a form of guarantee for Germany in order to increase the funds of the European Stability Mechanism (ESM). You can read more about my concerns about the legality of such a pact here. An early assessment of the Pact for the Euro is available here.

The guiding rules of the Pact for the Euro:

  • It will be complementary to the existing instruments of economic governance in the EU;
  • It will concentrate on actions where the competence lies with the Member States. In the chosen policy areas common objectives will be agreed upon at the Heads of State or Government level;
  • Each year, concrete national commitments will be undertaken by each Head of State or Government;
  • The implementation of commitments and progress towards the common policy objectives will be monitored politically by the Heads of State or Government of the Euro area and participating countries on a yearly basis.

The goals of the Pact for the Euro:

  • Fostering competitiveness;
  • Fostering employment;
  • Contributing further to the sustainability of public finances;
  • Reinforcing financial stability.

The main policy instruments:

  • Monitoring and adjusting unit labour costs (ULC);
  • Removing unjustified restrictions on professional services and the retail sector;
  • Improving education systems and promote R&D, innovation and infrastructure;
  • Removing red tape and improving the regulatory framework (e.g. bankruptcy laws, commercial code);
  • Labour market reforms to promote “flexicurity”;
  • Tax reforms, such as lowering taxes on labour;
  • Aligning the pension system to the national demographic situation;
  • Putting in place national legislation for banking resolution;
  • Developing a common corporate tax base.

 

 

Looking for the Philosopher’s Stone of Economic Governance Coordination

France and Germany proposed a new way forward for the coordination of economic governance in the European Union. The proposal may be ambitious in scope, but is minimal on detail – the leaked document contains one (1) page only. So how to interpret this?

First of all I am really surprised by the mentoring attitude of Merkel and Sarkozy at the European Council meeting. Wall Street Journal quotes Yves Leterme, the Belgian prime minister:

“There were 18, 19 countries who spoke up to make known their regret on the way it was presented and also on the content. It was truly a surreal summit.”

This misstep will obviously diminish the chance for quick success of the negotiations. Apart from the tactics, however, I am much more interested in the emerging legal obstacles to any compromise. The problem is that too much EU law stands in the way of the proposal in its present form.

The scope of the proposed measures is huge – raising retirement ages across the euro zone, abolishing indexation of wages to inflation, harmonizing corporate and other taxes and instituting a “debt brake” that limits the ability of governments to borrow to fund their spending. Nevertheless, France and Germany seem to believe that this can be done without a proper reform of the Treaties, in some sort of Schengen-like legal framework.

First it’s worth investigating whether the proposals can be introduced as an enhanced cooperation (art. 326 – art. 334 TFEU). Such cooperation must not undermine the internal market or economic, social and territorial cohesion. It must not constitute a barrier to or discrimination in trade between Member States or distort competition between them (art. 326 TFEU). These legal restrictions must be interpreted carefully, and a program to raise the competitiveness of certain Member States may well violate them. An enhanced cooperation also involves a proposal by the Commission and the consent of the European Parliament. It’s approved by the Council with a unanimous vote (art. 329, para. 2 TFEU).

But another way forward may be a Schengen-like legal framework, initially external to EU law. In this case, however, I believe that it must also comply with the criteria set for enhanced cooperation – i.e. it should not undermine the internal market or economic, social and territorial cohesion, and it should not distort competition between Member States. These criteria will be difficult to meet provided that the very purpose of the measures is to improve the competitiveness of the participating Member States. Additionally, it looks like France and Germany do rely on the Commission and the European Systemic Risk Board to perform some functions in this new framework. I can’t imagine how this can be done without someone (for example, the UK), raising the question of the funding of such initiatives by the EU budget. The European Parliament could also have some objections to this.

The most likely (and the slowest) option is Treaty revision. It is also the most legitimate way forward (and maybe the only legal one). True, it would lead to a lot of bargaining and time loss, but it would also bring stability and legal security to this new framework.

Having said this, it’s obvious that some measures must be taken. It’s just that proposing measures without thinking about their legal ramifications is not a good sign for their success. After all, we are talking about unprecedented levels of economic governance coordination. Trying to circumvent Treaty reform may not work simply due to the scale of the proposals.

 

 

Commission Wins on Salaries Dispute with Council

This may not be hot news, but raises some questions. The ECJ has partially annulled Council Regulation (EU, Euratom) 1296/2009 on the adjustment of the remuneration and pensions of officials of the European Union.

In November 2009, the Commission proposed a salary increase of 3.7%. On 23 December 2009, the Council decided on an increase, in the contested regulation. It considered that the Commission’s proposal for adjusting salaries should be modified to take account of the economic and financial crisis. It fixed new salary levels on the basis of an increase of 1.85%.

The Commission brought an action for annulment against the provisions of the regulation setting out those amounts. It argued that the Staff Regulations establish an automatic method for adjusting salaries that leaves no margin of discretion to the Council that would allow it to reject the Commission’s proposal.

The ECJ has concluded that the Council has no margin of discretion allowing it to decide upon a salary adjustment different to that proposed by the Commission on the basis of the criteria laid down in Article 3 of Annex XI of the Staff Regulations alone, except under the special procedure provided for by Article 10 of that Annex.

Interestingly, the ECJ has held that in order to avoid creating a legal vacuum in the EU salary regime, the effects of those articles are maintained until such time as a new regulation, adopted by the Council, enters into force.

Here are the questions:

What was the Council Legal Service actually thinking? Did they explain to Council members that they were about to make a blatant violation of relevant EU law? If yes, did the Council adopt the regulation anyway to score a political point against the Commission?

 

 

Committee of the Regions 2009 Ageing Report

The 2009 Ageing Report of the Committee of the Regions provides some interesting proposals for managing the ageing of populations in the European Union. The topic is very important given the fact that 9 out of the 10 countries with the oldest population in the world are EU Member States.

The report proposes three main priorities:

(1) healthy ageing;

(2) labour market participation and productivity; and

(3) access to services and facilities.

The idea is to merge those priorities in the Europe 2020 strategy.

Expelling the Roma: Is It Legal?

The recent police operation in France leading to the expulsion of thousands of Roma citizens of Romania and Bulgaria has been a hot topic in the news for some time. Now Euractiv reports that Italy has also plans to expel Roma citizens of other Member States.

The big question here is – is it legal?

There are two separate legal systems that must be assessed in this case. One is the European Union law, and the other is the European Convention on Human Rights. These two systems must not be mixed together in the analysis, and they have different outcomes.

Let’s start with EU law. The citizens of the European Union have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect (art 3, para. 2 TEU; art. 20, para. 2, “a” and art. 21 TFEU). Most of these limitations and conditions are provided in Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. The main principle of Directive 2004/38/EC is that the right of residence for Union citizens and their family members for periods in excess of three months is subject to conditions. This is very important to note, since many EU citizens mistakenly believe that their right of residence is unconditional.

These conditions for the right of residence over three months are spelled out in art. 7 of Directive 2004/38/EC. The resident should be a worker or self-employed person in the host Member State or should have sufficient resources for himself and the family members in order not to become a burden on the social assistance system of the host Member State. Art. 14 stipulates the conditions for an expulsion measure and specifically points out that the expulsion measure should not be the automatic consequence of a Union citizen’s recourse to the social assistance system of the host Member State.

In addition to that Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. Measures taken on grounds of public policy or public security must comply with the principle of proportionality and must be based exclusively on the personal conduct of the individual concerned. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention cannot be accepted (art. 27, para. 2 of Directive 2004/38/EC).

These texts are very concrete, and they raise important questions about the conduct of French authorities. In each and every case of expulsions the French state must have assessed the personal conduct of the individual, any general policy concerns notwithstanding. The information that is delivered by the media in this case is insufficient to assess the legality of the actions of the French Ministry of the Interior, but I am quite skeptical that they have been able to go though individual assessment of personal conduct in each of the cases. More, the reference to the ethnicity of the persons expelled is a serious breach of the principle of non-discrimination (art. 19, para. 1 TEU).

That being said, it is the European Commission that must decide whether in this case France has breached the relevant texts of Directive 2004/38/EC. I would also urge the European Ombudsman to independently observe this case.

Apart from the considerations about EU law, France is a party to the European Convention on Human Rights. Mevlüt Çavuşoğlu, President of the Parliamentary Assembly of the Council of Europe, has voiced some criticism towards the measures. Article 4 of Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms explicitly prohibits the collective expulsion of aliens. Now the question is whether the actions of French authorities constitute such a collective expulsion.

In conclusion the actions of the French authorities for the mass expulsion of Roma citizens of other member states may breach relevant EU law and texts of the European Convention for the Protection of Human Rights and Fundamental Freedoms. France should restrain from any actions that constitute collective expulsion. The European Commission should fully investigate this case. The Council of Europe should also carefully monitor this case.