Swiss vote puts EU to the test on Free Movement

The Swiss referendum on immigration restrictions for EEA nationals - effectively a vote on ending the free movement of people in the single market for Switzerland - was passed by a very narrow majority of 50.3%, but it has big consequences. The bilateral treaties between Switzerland and the EU form a dense and developed relationship; there are some 120 individual treaties. But the treaties are inter-related: should Switzerland breach one of the free movements, then the other single market provisions will be brought to an end. So Switzerland could potentially be exiting the single market.

As The Economist notes, this puts the EU in a bind: does it bring these agreements to an end and uphold the single market, or does it try to accommodate Switzerland for fear of inflating the Swiss vote? The Commission is quick to highlight the sanctity of free movement at every opportunity, but it is a delicate situation: the referendum doesn't have immediate effect, as the quota system needs to be drawn up and implemented. So when and how should the EU approach the question of bringing the single market agreements to an end? The EU should not come across as heavy handed - above all the decision of the Swiss electorate must be respected. But the relationship runs in two directions, and the Swiss should not be allowed to benefit from the single market without extending the same rights to the rest of the EU.

In the end, the issue will have to be confronted. Accommodation of the dilution of the single market unpicks the EU and the commitments Member States, and in this case also Switzerland, have made. If Switzerland chooses to opt out, then that's their choice, but it entails opting out of the single market, not just the parts they don't like. The EU should wait for the Swiss proposals, while making clear that they will stick by the treaties with Switzerland.

For Eurosceptics, the Swiss result is a victory, but the real question is if it is accommodated by the EU system. If it is, then the question will be: why not restrict free movement within the EU? It is one thing to say that the free movement rights are key to the single market, it's another to stand up politically for the benefits they bring and for the integrity of the single market as a whole. In the referendum, the impact of the result on Swiss access to the single market was debated. If Switzerland breaches its EU treaties and brings them to an end, that is their decision.

Stripping Citizenship

Last week the UK House of Commons voted on an amendment to the Immigration Bill that would empower the Home Secretary to strip foreign-born terrorist suspects of their UK citizenship, even if it would render them stateless. (Those with dual citizenship can already be stripped of their British citizenship). The amendment reads (p.3):

"(4A) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if—
(a) the citizenship status results from the person’s naturalisation, and
(b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory.”

The decision doesn’t have to be made following a court ruling and it isn’t made by a court – it’s made by the Secretary of State herself. The amendment was proposed by the Home Office Secretary of State, Theresa May, and was reportedly aimed at drawing Tory back-benchers away from an amendment that would have limited criminals up for deportation’s ability to rely on the right to family life under the European Convention on Human Rights. That amendment was defeated with the help of Labour and the Liberal Democrats.

The vote is another example of how difficult it is for Cameron to control his back bench, which will be worrying for him come the European elections. At the moment the Conservatives are expecting to come behind UKIP in the May poll, but even with that factored into their calculations, the back benches may take the result as a spur to become even more rebellious.

Disappointingly, the anti-immigration rhetoric has meant that the other parties have failed to take a firm stand on the issue of taking away citizenship. On Question Time on Thursday, the Labour and Lib Dem representatives weren’t able to give a clear “yes” or “no” on whether or not they supported the idea. UK politics seems to be stuck on an illiberal course…

Free Movement Night's Eve?

"Who cheats, flies", runs the campaign of the Christian Social Union in Bavaria. Fear of an influx of Romanians and Bulgarians seems to be at fever pitch, with Tory activists in the UK petitioning the Prime Minister to use an emergency clause to limit immigration and the new CSU campaign, which has angered its coalition partners (the CSU is part of Merkel's governing coalition). From tomorrow, the transitional restrictions on Romanian and Bulgarian citizens from enjoying the full rights of EU citizenship will expire and they will be able to work across the EU under the same conditions as other citizens.

Counter arguments, that Germany and others benefit from migration, that migrants contribute more than they receive in benefits and that the freedom of movement is a two-way street, don't seem to have broken through. However that doesn't mean that anti-immigration arguments and rhetoric are necessarily well-received. The "Go Home" campaign piloted in Britain - where a van pulling a billboard urged illegal immigrants to contact the Home Office and "go home" - was a laughing stock, with people cheekily trying to use the contact number to ask the Home Office to arrange for their trip home across London. Similarly, the "Who cheats, flies" - Wer betruegt, der fliegt! - campaign was mercilessly ridiculed online, with pictures of prominent CSU ministers on planes appearing under the slogan.

And a recent poll in Britain suggests that integration rather than immigration is the crux of the concern, with a majority of people accepting of immigration if people play by the rules. This is probably why the clumsy attempts to tar groups of immigrants - actual or potential - with the same brush has struck such a hollow ring with people. In this day and age scapegoating a group of people is simply not acceptable. The concern is more over pressure on the welfare state, public services and integration into the local community. These are issues - and it's sad that evidence of migrants' contributions haven't had much traction yet - and they also seem to be tied up with the wider debate over the welfare state and who deserves help: the old concept of the deserving poor.

The image of people flying in just to cheat the system may be ridiculous, but in tougher economic times there is a fear of cheaters. Announcements to reduce and cut away at the welfare state are not just about austerity, but also tinged with suspicions that some are milking the system, even as demand for charitable services like food banks rise. But as the welfare system is made tougher, it's made tougher on everyone... The political battles over immigration and welfare will continue into the new year, with parties bidding to be tougher on immigrants and welfare "scroungers". Past experience with populist campaigns may have jaded the public to these stunts, but we are drifting towards a tougher society.

Citizen Zambrano

Eurocrats: reviled faceless creatures that have no sense of fellow human feeling, right? Well it actually seems that a lot of them are softies whose conscience can influence the outcome of their decisions. Even the European Court of Court of Justice in Luxembourg (not to be confused with the European Court of Human Rights in Strasbourg, which is part of the confusingly, similarly named Council of Europe), critised by the European left for the Laval and Viking decisions on union action, can be swayed by the human stories that come before them. In fact, there's a good case to be made that the development of the law on European citizenship owes a lot to the stories of families and individuals in difficult situations.

In early March the ECJ ruled in just such a case, in what is a milestone case on citizenship, in Zambrano. Not that you would have read about it in the media. In fact I only read about it in The Irish Times, which covered the case and the subsequent reaction of the Irish Government. The excellent Verfassungsblog covered it in German. Zambrano is a landmark case as it strikes a blow against reverse discrimination (the idea that Member States can give fewer rights to their own citizens than to EU ones from other Member States), and it could have an effect on immigration and national citizenship laws. So here are my own belated thoughts on the case - as with all court stories, it will require some side-stories to give it context, but I hope the human interest element will keep it interesting, and that it will provide some insight into how the Court can act and think.


Citizen Zambrano

Ruiz Zambrano and his wife , Moreno, left their home country of Colombia in 1999 for Belgium. They were looking for asylum as Ruiz had been subjected to 2 years of extortion demands, backed up by death threats, by private militias, and had witnessed assaults on his brother and his 3-year-old son had been kidnapped for a week in January 1999. Their application for asylum was refused, but a non-refoulement condition was attached - Belgian authorities could not send them home as the civil war situation in Colombia was too dangerous. Ruiz Zambrano worked in Belgium without a work permit, but he paid taxes and social security contributions. He was fired from his job as he didn't have a work permit, and he wasn't allowed unempolyment benefit as the work he had done, and contributions he paid wouldn't count as he never had a work permit. In addition, with the deportation order hanging over the family's head, it took years of legal challenges to get even a temporary residence permit. In the meantime the couple had 2 children, who had Belgian citizenship (and therefore EU citizenship) under Belgian law.

If the 2 children had been EU citizens from another Member State, they would have been protected by EU law, and their parents would have been allowed to live and work there while they were still children without permits. Even as Belgian citizens, they could have the protection of EU law if they had used their free movement rights (e.g. moving to another EU country for a while) at some point in the past, but as they had never left the country of their nationality, it appeared that Belgian law would discriminate against its own citizens. So the Belgian court essentially asked the ECJ: does EU law protect against such discrimination, and if so, would the Zambrano parents be entitled to stay and work in Belgium without the relevant permits as the carers of EU citizens?

Yes, the ECJ said, since without the right to live and work in Belgium, they (the children with citizenship) could be removed from the Union to remain with their parents if they were ejected from the country. By being removed from Belgium (or risking that removal), the children:

"... [would be deprived] of the genuine enjoyment of the substance of the rights conferred by the virtue of their status as citizens of the Union." [paragraph 42]

A victory for equality of all EU citizens before the law! Um, well, actually, not necessarily. In fact, it's a bit unclear how far reverse discrimination has been ruled illegal. What is the "substance of citizenship rights"? The ECJ hasn't mentioned it before, and it didn't explain it in its judgment. There were also 2 arguments that would have had the same effect for the Zambrano family, but different effects for other EU citizens, and it's not clear which one the ECJ accepted.


Back to the Future Citizenship

Here's where EU citizenship becomes more messy and complicated. There's a Citizen's Directive (Directive 2004/38/EC), which grants rights to EU citizens living in another Member State other than their own, and which expressly says that it does not apply to citizens living in their own Member State. The ECJ has got around this in the past by finding an EU law angle. So in Surinder Sigh, a non-EU national married a British citizen, and they then moved to Germany to live and work there until they moved back to the UK. When they moved back, his wife wanted to divorce him, and the UK tried to deport him before they were divorced. The ECJ said that it would render the right to move and work in other Member States unattractive if the spouses of citizens could be deported when they came back - however, once the divorce is final, then third country nationals no longer enjoy the rights of a spouse of an EU citizen.

In the Zambrano case there was no movement, but the ECJ may be protecting the potential exercise of EU rights by the children citizens. It's done this before in Rottmann, where an Austrian citizen living in Germany lost his citizenship of Austria when he gained German citizenship. The problem was that he hadn't disclosed all the necessary information on his application for German citizenship, and the German authorities decided to remove German citizenship from him - which would have left Janko Rottmann stateless. The ECJ stepped in and said that it was up to the Member States to decide when citizenship was granted, but they re prevented by EU law from unilaterally withdrawing it (and therefore Rottmann's German citizenship in this case) were it would result in a citizen not being able to exercise any of his or her rights. So a citizen could rely on their EU citizenship to protect thagainst their own Member State if they would be deprived of all potential future use of those rights.

The problem with the "Back to the Future Citizenship" is that it's messy and unclear when someone is covered and when they're not. Under UK law if a British national marries a third country national and wants to bring them home to the UK, and they haven't used their EU free movement rights, then they have to pay to get them into the country. So other EU nationals and British nationals who have used their free movement rights have preferential treatment over British nationals who never used their free movement rights. It is unlikely that, under the Back to the Future model, that that British citizen could claim that they wouldn't be able to use their EU rights effectively in the future if their spouse couldn't join them in the UK, so they wouldn't be covered by EU citizenship law.


Civis Europeus Sum - I am a European Citizen

While the Citizen's Directive doesn't apply to EU citizens living in their own country, the Treaty articles on citizenship and the prohibition of discrimination on the basis of nationality (Articles 18 & 20 TFEU) are, in legal jargon, "directly effective". This means people can rely on them without extra laws being passed by the EU or Member States.

Article 20 TFEU gives EU citizens the right to "move and reside freely within the territory of the Member States". The second method is perhaps an example of law being almost laughably technical, because it depends on how that "and" is interpreted. If you have to both move and reside, then you have to use free movement rights and the Back to the Future model applies. If you have 2 separate rights - to move and to reside - then citizens living in their own Member State would have a right to reside there under both their national citizenship, and their European citizenship. Then the non-discrimination clause would mean that they could not be "reverse discriminated" against by their own Member State!

This is the method proposed by British Advocate-General Eleanor Sharpston in her Opinion on the case. It would mean that just by living in the EU - anywhere in the EU - a citizen would be under the same protection as other EU citizens, and rights would not be dependent on complicated legal reasoning.


What was the Court thinking?

You can't really tell which of these the Court supported in it judgment, but it still wanted to help the Zambranos. It's not good enough, however for a Court to be so unclear about what the law is. As the Court cannot give the separate reasonings of the different judges, but only a single court judgment, there may have been a compromise to fudge the issue and not take Sharpston's more radical proposal.

However, I don't want to leave you with the impression that it's only the ECJ that influences the development of EU citizenship. The only reason a Belgian court asked the ECJ in the first place is that the Belgian constitutional court had held that reverse discrimination was not permitted, setting how EU law should work in the area into doubt.

Zambrano was a big step for EU citizenship, but it will be a long time before we know what it really means.

The Shape of Dutch EU Policy

This article has been rattling around my head for a while - since before the official formation of the Dutch government - but I never got around to writing it. At the very end of September, I attended a lecture by Wepke Kingma, Chief Director for European Integration at the Ministry of Foreign Affairs on the challenges facing Dutch European policy. Of course, this was before the new government came in (though we were pretty sure about how the coalition would turn out), but it was very interesting to hear about how the Dutch government generally sees itself in the EU.

The Dutch EU role:

When it comes to how the Dutch government view the changes in the EC/EU over the decades and how the power structures affect its influence, it sounded familiar to me. I've often argued that increased power for the Council (or European Council) is counter to the interests of small states, and that the supranational aspect of the EU generally serves small states better. This seemed to be the Dutch experience, with worries over the growing power of the European Council as the Commission is weakened, as well as enlargement. Vetos are of little use as they are a "nuclear option" in negotiations and make you unpopular and less influential in future negotiations; also, it benefits big states more as smaller states are more easily pressured under a unanimous voting system. The Dutch strategy for dealing with enlargement and the "big 3" is to have well-developed positions on all European policies to ensure that the Netherlands is a reliable negotiating partner; and this also feeds into coalition-building on issues. I was a bit surprised that coalitions in the Council are very stable, but it makes sense as it is hard and time consuming to constantly form new voting/negotiating coalitions.

One aspect of the Dutch relationship with the EU that is different from Ireland, and perhaps other small states, is the "founding member" status of the Netherlands. Enlargement seems to be seen as a dilution of identity and influence - the original 6 were described as a "nuclear family", and I couldn't help thinking of the Dutch word "gezellig", which is a bit untranslateable, but means something lke "cozy". Money and the dilution of identity seem to be at the core of Dutch worries over the direction of the EU. However, it seems important to note how integration and supranationalism is seen as an important way of defending the influence and role of small states in the EU struture. While sovereignty may be viewed as being lost through the ending of the veto and supervision by the Commission, small states seem to view this as (generally, though it depends on the area), as protecting their position and opening up new opportunities to influence Europe's direction. Supranationalism can be a goal of nationally-minded member state governments too, it seems.


Multi-annual budget:

This is a big issue as it will be decisive in the EU's capabilities over the next few years (and therefore also decisive on how new Lisbon institutions such as the EEAS develops, and it is being decided in an atmosphere of austerity. Though there's undoubtedly a large element of self-interest in the EP's defence of the budget, and lobbying for increases, there is a good argument that you cannot increase the responsibilities of the EU institutions without having the money available to effectively carry out its duties.

The Dutch position seems to be that they are quite happy to continue paying as a net contributor, as the internal market is so important to the Netherlands, but CAP and the Cohesion Funds are areas where the Netherlands wants to see cuts and reforms. They want the EU budget to be set at around 1% GNI, and have priorities for the EU: Frontex (immigration control at the EU border), energy & climate, and the EEAS, among others. Therefore they want cuts in CAP and Cohesion funds to pay for increases elsewhere. The Dutch seem to view agriculture spending as necessary to aid declining villages and for the maintanence of the countryside ("landscape preservation"), but are otherwise looking for the CAP section of the budget to be reduced heavily. Cohesion funds are viewed as a good policy to help make the poorer member states wealthier, and therefore more able to buy more goods from the richer member states (the thought also occured to me that this is also a good strategy to steadily increase the number of net contributors; or rather slowly spread the burden of contributions). However, cohesion funds should focus on the poorer member states and not be directed to the wealthy countries' poor regions as well. There was a mention of asking for a rebate if the Netherlands didn't get its way, but this was heavily downplayed (my impression was that they viewed it as a childish strategy that wouldn't win them any friends and would be counter-productive in their coalition-building strategies).

My own thoughts on this are that CAP clearly needs to be reformed (as Kingma pointed out, the newer member states will soon join the CAP fully and this will add to the strain on the budget), but I doubt that restricting cohesion funds to only the poorer countries is a good idea in the long run. Perhaps I'm biased because I come from a poorer region, but I think that all member states need to be involved in the cohesion fund, and that if you break their link with it (in that they feel that they're not getting anything out of it), it will come under increasing pressure for cuts despite its value for the good of the internal market. What is clear is that the EU is definitely a "transfer union" and always has been. It consists of a number of different policies transfering money for different projects to help out poorer regions and areas, as richer areas benefit from larger and freer markets. I would personally defend this transfer union as being a social and economic good, though it could do with reform. Still, the battle over the budget is likely to be vicious, as the EU is in some ways a rudimentary welfare state for states, and battle lines have already been quite firmly drawn.

Introducing rebates into the equation would be highly damaging, as rebates are paid for by other countries (I'm reminded of a story of the Polish government asking the British government how much more they would need to pay to join the EU because of the British rebate [it was a sore point obstructing enlargement negotiations]. That image of a poorer country asking how much it would need to pay a richer country - and a champion of enlargement at that - due to its own obstructionism of the budget is something that sticks with me as a symbol for just how selfish and immoral rebates are).


Immigration and asylum:

With Geert Wilders' PVV supporting the minority coalition government, this is obviously a big issue in the Netherlands today. Justice and Home Affairs may be a big European focus for this Dutch government, as Kingma suggested that JHA was an area where the Netherlands wanted to see more action. The Lisbon Treaty moved JHA firmly into our "Union method", so this area could see a leap in activity. The challenge for the Netherlands here is to convince the other member states that they don't want to re-nationalise immigration, but to toughen the rules on illegal immigration. Immigration is such a big issue across many member states that they might be able to win some support for changing the system. Also, there are lots of "Dublin cases" before the European Court of Human Rights on the current system, and this could generate pressure for refrorm as well (the Dublin system is where immigrants into the EU are sent back to the country they first entered so that they can't "shop around" the member states - there have been complaints particularly about the Greek processing of applications).


Enlargement:

This touches on the identity, money and influence concerns of the Netherlands. The Dutch government wants tougher enforcement of the enlargement conditions to ensure that there is the legal and institutional change necessary to join, and that the EU moves away from the old practice of giving in to pressure to enlarge quickly. Kingma raised the prospect that a Dutch parliament may end up refusing to give the green light to enlargement if it felt that the candidate country hadn't fully reformed.

Naturally Turkey is a big topic, but it wasn't really directly addressed on its own. However, in the question-and-answer session, it was suggested - but not directly said - that the Netherlands may be negotiating or hoping that the Turkish government would accept some conditions on its voting weight. I stress that this was not directly or explicitly said, and that I am getting this impression from something said by someone talking in their second language rather than their mother tongue. Still, enlargement has seen restrictions on the free movement on workers and access to CAP funds, so if a "privillaged relationship with the EU" is unacceptable for Turkey and other member states, then I wouldn't be surprised if the idea of gradual integration and gaining of rights in the institutions hadn't surfaced in some national administration. If such an idea has surfaced, I hope it will be resisted.