Monday 25 April 2011

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.

Wednesday 20 April 2011

Siedentop and Democracy in Europe

Last week I attended an interesting debate between Larry Siedentop, the author of Democracy in Europe, and several law Professors and lecturers in Leiden University. In his talk, and the subsequent debate, he discussed the direction of both the UK and Europe.

In Britain, he claimed that the social and cultural supports of the unwritten constitution are in decay, and that there would probably be a move towards a more codified constitution in the future. I agree that the support that the unwritten constitution rested on is decaying - just look at the debates in Parliament over sovereigny and parliamentary sovereignty and you can see that there's a worrying about of confusion over what the key principle of the British constitution actually means even to MPs: the very people the constitution gives absolute power to. With gorwing calls for referendums on issues (an aspect of popular sovereignty rather than parliamentary sovereignty), devolution, human rights and EU membership, more modern ideas of citizenship and the state seem to be seeping in, even if they are largely promoted with the language of the old constitution. If the UK is going to get a codified constitution, I doubt it will get it for a few decades.

On Europe, Siedentop focused on the problem that people aren't involved in the decision-making process and that they don't feel close to the EU. He remarked that nationalism had brought the state and the people closer together, but that it hadn't reached its full goal almost anywhere. Siedentop seemed to be against democratising the EU, saying that he would have prefered if the European Parliament wasn't elected as it hadn't brought people closer to the EU. Turning the clock back now was unrealistic, he accepted.

He proposed an EU were:

1. Member States could exit if they wanted (already the case under Article 50 TEU).
2. The European Parliament has an upper chamber consisting of the representatives of national parliaments (a "Senate").
3. Human rights was a focus.
4. The EU tried to do less, but did it better.

I'm not very convinced by this list. Apart from the first point, which is already the case, and I'm happy with, I can't the remaining points as particularly useful to solving the problem of bringing the EU closer to people and involving citizens in the decision making process.

Human rights have already been upgraded in the EU system. The EU Charter of Fundamental Rights constrains the EU institutions to act within the bounds of human rights, and the EU is committed to joining the European Convention on Human Rights to the ECHR in Strasbourg will provide an additional judicial check on the EU institutions. Article 7 TEU provides a mechanism for the EU to sanction Member States that seriously breach the EU's values (democracy, etc.). Perhaps the EU could be reformed so that it could do more before using this nuclear option, but I think that the ECHR does a lot without duplicating its role within the EU. promoting better democratic politics at an EU level would probably be a good break on more populist tendencies by having a pan-European public as a watchdog against breaches. It's a soft political "measure", but I think that it's a culture that needs to be encouraged and that could have a positive effect.

Getting the EU to do less, but do it better is much, much easier said than done. It would likely be a lot easier to change things in the EU if it was more democratic in substance, as there could be a clear political majority in the institutions for policies like CAP reform. However, the current system is a finely balanced equation of interests and priorities, with CAP and structural funds balancing out freer trade and more liberalised market integration. (Should the EU stop working in the area of cross-border crime? The Netherlands is a strong supporter of this area, so cutting back on the more political aspects of the EU wouldn't automatically please even the more "pro-market area" Member Sates). Remove one, and it's hard to garantee that anything will be done better in the face of bitter Member States.

The senate idea is one I'd reject too. There is little use for another chamber in European politics. I asked Siedentop if it wouldn't be a better approach to have stronger Europarties and EP elections that could decide the leadership of the Commission, so that people would be more engaged (over time) as there would be a clearer link between elections and politicians gaining office and implementing policies. Over time I think this would contribute to building up a common political culture over the EU, though it would admittedly be an extremely long and difficult process. Siedentop responded by saying that informing people about European issues was the point of the senate, so that national politicians would come back and discuss European politics more.

I disagree because we already have elected politicians that have to compete for votes to get elected to have a voice on European policy - having indirectly elected people who will face the same barriers in the media and national political cultures are hardly going to make much more difference. Perhaps Siedentop's focus was to Europeanise national politics by restoring the direct link between national parliaments and the EU. This would mean continuing along the segmented national political cultures, and that political debate is hghly unlikely to go beyond nthe summitry of European politics in the public mind, where a national interest is declared and heads of government arte locked in a room to strike a deal.

Focusing on more open democratic politics would be an uphill struggle - and less based on institutions - but it's a vital one if the decaying old consensus in Europe (the economic integration one) is replaced with something more democratic and long-lasting.

Tuesday 19 April 2011

First Past the Post is my last preference

Growing up in Northern Ireland has the advantage of having three easily accessable political arenas: Northern Ireland, the Republic of Ireland and the UK. So mentally hopping across borders and discussing what's going on in each area becomes almost second nature - perhaps this is why I warm so easily to the EU. The UK is preparing for a referendum on changing the voting system from First Past the Post (FPTP) to the Alternative Vote (AV).

Living in Northern Ireland,* I could vote in local, NI and Wesminster elections** which were held using the Single Transferable Vote (the same system is used for the elections in the Republic), but FPTP for Westminster elections. It's a very strange feeling going from STV elections to FPTP ones, and the abiding feeling was one of a loss of choice and power as a voter. In the Republic, attempts by the Fianna Fáil party to change the electoral system from STV to FPTP failed - the electorate saw it as an attempt to rig the system in their favour and to reduce the power of the voter. As STV is AV with more MPs per constituency, when there can only be one winner - in by-elections or for the Presidency in the Republic - AV is used.

So it's very hard to understand the political reactions of the British media (and people?) to the political changes over the last year. Coalitions? Preferential voting? "The sky is falling in!" the media seemed to cry. Today in the Guardian there's a poll saying that support for AV has fallen to 33%, with those against at 44%. It's difficult to explain how strange this seems for someone who has voted according to preference in the vast majority of the elections he's been involved in - particularly the claim that AV is complicated and voters won't understand it. Perhaps this is an Irish/STV thing?

While a system of proportional system would be better, I support AV for the following main reasons:

1. It empowers voters and shakes up safe seats. By being able to vote according to preference, suddenly the first preference doesn't have to be tactical anymore. Preferences can be expressed according to the candidate according to his/her personal ability and/or party affliation, and this means that candidates will have to represent the views of the constituency more faithfully as party membership will be less able to grant near-automatic victories in safe seats. This will encourage voter turnout. Though tactical voting will remain with the lower preferences (there's no electoral system that can eliminate tactical voting), it will free up first preferences, and many safe seats may turn out not to be as safe as once thought once voters can express their first preference free of tactical voting.

2. It enables (though doesn't guarantee - that depends on the electorate) a greater degree of control over the political parties. Parties in the UK are very broad churches - almost coalitions - and their success seems to be based on striking a balance between different wings in such a way as to appeal to the floating voters in marginal seats. By encouraging candidates to appeal to the political sentiments of their constituency more directly, gradual change can be introduced into the parties. A right-wing conservative may be sitting in a seat that would prefer a more liberal conservative, but there is little way of influencing the outcome if they absolutely do not want a Labour MP, and so vote tactically. It should be stressed that this depends on the electorate making use of the possibility, and that it would be a very gradual and indirect way of influencing the balance within parties, but it should mean that parties are a bit closer to their constituencies.

Those are the main reasons for supporting the system itself (I'm not going to be exhaustive in explaining them, or this long post will become far too long), but there are wider cultural perceptions that are attached to AV and proportional representation systems which mean that British voters are (or seem to be) against changing from FPTP.

Chief among these reasons is the fear of coalitions. Coalitions won't automatically come from AV: it cannot change the party political system so radically that there will be great fragmentation. However, coalitions aren't a bad thing that necessarily mean that voters' choices are reduced. Parties are coalitions that are hard in themselves to influence, and where there are only 2 (or 2 1/2) choices for government, it's hard to determine whether, when these parties win an election, their programmes get a near-total endorsement. What's more, the decreasing vote for the main parties means that a majority can be won on about between 36-38% (the upper reaches of which are harder to achieve nowadays) - should a single party be given such power when they don't have the support of 50% of the people? Through coalitions there is a greater chance for the voters to strengthen one party or the other and shape their relative strengths.

Again, perhaps this is a cultural perception, as in Ireland single party government is a threat - at the last election (in February), it looked like there may be enough Fine Gael support for single party government, and the electorate switched votes away from FG to ensure that there would be a coalition (in Labour speak, a "balanced government"). Ironically the most unstable government we've ever had in the Republic was a FF single party government with a large majority. Still, the ability to give preferences for candidates across parties in STV enables voters to shape the representation of the constituency and the political balance in the Dáil for coalition building. The "dream team" approach to building a government!

AV is a very moderate change to the electoral system. It won't change things radically, it's still possible (and fairly likely) to produce single party governments, and it doesn't create a proportional repersentive system. Such a moderate change won't have the hyped-up affects on British politics that the Yes campaign suggest, but it will give constituencies greater control over their MP. And that's why it's worth voting for.

* Annoyingly, if not surprisingly, the parties in NI have split along Nationalist-Unionist lines on the AV issue, though none are advocating a return to FPTP for NI...

**I'm currently living in the Netherlands, and was annoyingly too late for a postal vote.

It's not a bail-out, but it might need to be

Jon Worth has a good post (and also pointed to this great post by Henning Meyer) on why the bail-outs are not actually bail-outs: they are loans to countries which will be paid off, with the creditor countries getting a profit at the end of the process. However, a problem with this can be seen in Meyer's post when he explains this:

"It is a widespread myth for instance that the European bailout fund is giving away money for free to countries such as Ireland and Greece. This is simply wrong! The ‘bail-out’ is a lending facility that lends money at rates with which the underwriting countries will make a profit if the debtor countries do not default. This is far from giving away money for free from presumed ‘responsible’ countries to ‘irresponsible’ countries to support their luxurious lifestyle."

"If the debtor countries do not default" looks like a big if to me. The structure of the bail out is such that it reinforces the austerity model that the debtor countries have been trying to enforce. This has been done with varying degrees of success when it comes to sticking to the programme. However, the plan is to change the EU structure so that countries can have a managed default after 2013, which means that there will be many voices (as there is currently in Ireland) questioning why they have to go through the harsh readjustments of austerity when after 2013 default would be the accepted option. Surely only a fool would go through that pain for no real reason?

It doesn't help that the rescue loans are structured so that they have fairly high interest rates, even if they are below the market rate - Europe seems to be caught in between solidarity and ensuring the hair-shirted redemption of the debtor states through some cleansing punishment. With the rates higher than the growth rates of the debtor countries, it may be that their debt could grow - particularly in Ireland. The Irish case seems to be different from the Greek case, in that the European system has stepped in to prop up the Irish banks to ensure that their debts to British and Eurozone banks are repaid. As they cannot be bailed out directly, the loan facility means that essentially the Irish government borrows money from the EU to give to the banks to pay off their loans to private continental banks, and the Irish taxpayer picks up the tab at the end of the process.

Allowing the private banks in Ireland to fail now is not an option as the ECB ensures that the banks keep running as the lender of last resort, but it is widely accepted that Ireland cannot pay off the debt, and the Irish government is looking to renegotiate parts of the EU-IMF deal, starting with the interest rate on the loans. Eventually Ireland may ask for some restructuring of the debt - which seems to essentially mean that some of it simply isn't paid back. Now that part would be a bail-out.

This is very different from the situations in Portugal and Greece, but with the domestic political pressures building up, it should be borne in mind that default only seems a scary prospect for debtor countries for so long. Once the pain of austerity becomes too much, with too little reward, then the option of default - which would turn the loans into lost money - becomes more realistic.

The current plan for the Eurozone has failed - it doesn't seem to be working in the Member States it's supposed to help out, as it forces them into narrow austerity plans that do a lot of damage to their economies and therefore damage their ability to pay the loans back; and it has failed to stop the debt crisis spreading. The loans have bought time to deal with the Eurozone more comprehensively, but there doesn't seem to be many good or imaginitive ideas on the table.

So while offering - and accepting - the loans was a good idea in order to buy time, if it's not followed up with effective action, then things could get worse. Not offering the loans, however, would have brought about default in the debtor countries, which would have meant that their debt would wash back into the economies of the creditor countries. This would have had an immediate effect on the economies of all the Eurozone members, since the credit originally came from their private sectors, or they would be simply affected by the damaging effects of the debt washing back into Germany and the Netherlands, etc. Which is why I think that mainstream European political parties need to put forward a realistic and effective vision - or at least start vigourous debates on options* - to combat the platforms of the populist parties. There's no excuse not to.

* I know, that will be the day.

Monday 18 April 2011

Lifting the sanctions against Moussa Koussa is the right thing to do

Moussa Koussa is hardly the most beloved former government ministers in the world - as a former minister under Gaddafi, he was part of one of the nastiest regimes, and no doubt there are plenty of cases that people want to take against him. However, the move by the EU to lift sanctions against him (so he can move throughout the EU without the restrictions placed on the other Gaddafi government members, and can access his assets) is not granting him immunity from prosecution in itself.

The aim of the sanction was to penalise the regime and put pressure on it to stop its war against the rebellion. By lifting sanctions on those who defect, the EU is creating an incentive - if a soft one - to defect from the regime and weaken Gaddafi's position. It is unlikely that there will be many defections now as the stalemate in Libya means that the regime isn't likely to be ousted, so those who decided to stay probably won't jump ship now. Still, the move may pay off in the future if the situation on the ground changes. Then members of the regime may see a life boat, and take the plunge.

It can be a tough decision to ease the position of people who have participated in such regimes, but the hope is that by removing them peacefully with incentives, bloodshed would be avoided or reduced than by backing regimes that are clearly capable of great cruelty into a corner with nothing to loose.

From EU Observer the routine attitude with which the sanctions were lifted seems to indicate that this is an accepted strategy across the EU:

"The EU decision was made unanimously at ambassador-level last Thursday.

Foreign ministers rubber stamped the move without debate or public remarks at a meeting in Luxembourg on Tuesday. Koussa became legally able to once again travel inside the Union and take money from any bank accounts he has in Europe from Thursday morning onward."

Jumping ship is still a risky move for members of dictatorships: though they leave with promises of immunity or certain privileges, their legal situation has a habit of changing eventually.

Finnish Election

Finland held its general election yesterday, with the right-wing populist True Finns breaking through to become one of the main parties in the Finnish parliament (Finland is unicameral, so it only has one chamber of parliament).

The BBC reports the predicted seats for the main parties (out of 200) as:

"National Coalition Party - 44

Social Democrats - 42

True Finns - 39

Centre Party - 35"

Percentage-wise, the True Finns will have gone from 4% to 20% of the vote. Their platform is eurosceptic and anti-immigration, with the bail-outs of Greece, Ireland and now Portugal helping to boost their popularity, as the idea of sending money over to other EU Member States doesn't seem to have been defended very well: it's a lot easier to sell a simple rejectionist message than explain the complex economic case for supporting other countries. That's not to tsay that there isn't a need to challenge the current approach to the European debt crisis - and the worrying signs of satisfaction at the measures taken so far. Though the methods and ideas so far haven't been far-sighted enough, going into reverse gear would make the situation worse.

"The party's candidates are a motley crew and amongst them there are distinct anti-immigrant views. Neither does the party leadership have much sympathy for a place for the Swedish language and Swedish teaching in Finland. Nor for development aid, climate policies and so on. The general impression is that of deep conservative values and a nationalistic spirit. The word extreme right is not used in Finland. The party's future shape depends however on which of the party's candidates finally win a place in parliament." - EU Observer.

Given how close the seat numbers arre for the 4 biggest parties, it is possible that the True Finns could even end up in government. Again, it's hard to know whether the best approach would be to freeze them out of coalition possibilities or not (which takes us back to the question of how to deal with such parties generally). I haven't been following Finnish politics closely enough to know how extreme the True Finns are in their rhetoric and policies, but from what I've read they seem quite extreme. I hope that the mainstream parties start digging in and re-vitalising their grassroots.

Back from the Grave

Don't worry - I'm not dead! Things have been very busy over the last month and a half, so The European Citizen has gone a bit quiet. I'm hoping to revive the blog and use it more regularly from now on.

I'm not sure how smooth the process will be, since the next few weeks will still be pretty busy, but I hope to squeeze in a few blog posts each week.