Events: Human Rights Week 2014 at Matrix Chambers

Matrix is putting on two events in Human Rights Week (w/c 8th December) designed to celebrate Human Rights Day, held annually on the 10th December 2014 by the UN.

Tuesday 9 December, 6.30pm

‘Are international institutions and international law practices encouraging or stifling the private sector’s approach to diversity and female inclusivity?’

As part of a week-long, profession-wide series of events put together by The Law Society to celebrate Human Rights Day, Berwin Leighton Paisner (BLP) and Matrix Chambers invite you to a panel discussion by leading academics and legal and business professionals on gender and female inclusivity. Given the gender equality and inclusivity obligations in international treaties, such as the UN Charter, and the role of international institutions in underpinning international relations and many of these international law obligations, the lack of visible commitment or tangible progress concerning women is surprising. Are there lessons to be learnt from the private sector? If so, why?

The panel (including Matrix’s Karon Monaghan QC and Professor Christine Chinkin) will explore this topic by looking at the constitution and operation of a number of international institutions and international law practices, and current experience in the private sector.

There will also be an exhibition of photographs from PhotoVoice’s Voice of Freedom project, which supports women who have been trafficked to express themselves through photography, and to play an active role in campaigning against modern day slavery.

This event is taking place at BLP. For booking details, please visit the Law Society’s website.

Wednesday 10 December, 5pm

Twitter Q&A with Hugh Southey QC, ‘Should everyone be entitled to Human Rights?’ Get involved by following @MatrixChambers. Send your questions in advance to 1Marketing@matrixlaw.co.uk and we will be sure to get them answered for you.

For more information on other events taking place within the legal profession during Human Rights Week, please visit the Law Society website, and for more information on Human Rights Day, please visit the UN website.

 

EU Free Movement as a Legal Construction – not as Social Imagination

Daniel Thym

Monetary union demonstrates that some EU projects are realised without preparation for all eventualities. In the case of the euro, the financial crisis revealed lacunae in the field of economic and budgetary supervision, which the euro countries had to bridge through the introduction of new instruments. In the case of Union citizenship the legal gaps are less dramatic, but nonetheless visible – in particular with regard to access to social benefits for persons who do not work. It was these uncertainties that the European Court of Justice (ECJ) had to confront in the Dano judgment of last Tuesday. It opts for a surprisingly conventional solution, which abandons earlier attempts to conceive of Union citizenship as a projection sphere for political visions of a good life and just society.

The European Court of Justice as Legal Technician

A reminder of the debate about the Free Movement Directive demonstrates the absence of clear political guidance. Initially, the EU Commission had suggested to lay down explicitly that Union citizens who do not work should not have access to social benefits during the first five years of their stay in another EU country (Art. 21.2). It later abandoned the project after the ECJ had ruled in Grzelczyk that similar provisions on study grants do not pre-empt recourse to the Treaty guarantee of non-discrimination. As a result, the final version of the Free Movement Directive reiterated existing Treaty rules, whose precise bearing for people like Ms Dano remained unclear. Otherwise put, there was never a positive political agreement at EU level on the status of Union citizens who do not work. This shifted the responsibility upon judges to resolve open questions.

Judges in Luxembourg used this room for manoeuvre for progressive decisions on various occasions. Judgments such as Grzelczyk, Martínez Sala, Collins, Trojani, Bidar, Vatsouras and Ruiz Zambrano constitute the most ambitious and tantalising line of case law in recent memory. They are characterised by an attempt to breathe life into the abstract Treaty provisions on Union citizenship by granting equal access to social benefits for various categories of economically inactive citizens irrespective of the limits laid down in secondary legislation. It would have been possible for the Court to decide the Dano case differently under recourse to the argumentative arsenal of these judgments.

That did not happen. For more than a decade, the ECJ had ignored the arguments put forward by his most outspoken academic critic, Kay Hailbronner – but they now dominate its reasoning on why citizens like Ms Dano cannot claim social benefits. This presents us with a noteworthy shift of emphasis from a promise of equality inherent in EU citizenship towards the ‘limitations and conditions’, which primary law had always provided for (Art. 21.1 TFEU). Judges abandon the aspirational underpinning of the citizenship concept to the benefit of conventional doctrinal arguments such as the wording or the systematic structure. In short, the Court turns into a legal technician.

Anuscheh Farahat criticises the Court’s outcome and, yet, she follows a similar path as the ECJ, when she argues that the technical rules on inter-state social security coordination mandated a different outcome. It is not convincing to maintain that this specialised field of secondary law should have defined the answer, not least since doing so would have required the Court to disconnect the interpretation of the non-discrimination principle in Article 4 of Regulation (EC) Nr. 883/2004 from primary law. A fundamental question, such as this one, should be answered primarily on the basis of the EU Treaties and the citizenship concept – even by those who disagree with the Court’s conclusion.

It seems to me that the outcome of the Dano case is no coincidence. Judges in Luxembourg are not autistic and listen to the general political context. The Pringle judgment on the compatibility of the ESM Treaty with the rules on monetary union was a case in point – and the same held for the Förster ruling, in which the Court shied away from open conflict with the EU legislator, when it accepted a five-year waiting period for access to study grants for incoming EU students in line with the Free Movement Directive. The Grand Chamber deciding the Dano case will have considered potential implications of its judgment for the overall support for the integration project at a time, when eurosceptic political parties are on rise across the continent, not only in the United Kingdom. Continue reading

The End of Free Movement of persons? The CJEU Decision in Dano

Dr Iyiola Solanke

In January 2014, I wrote a post discussing the plans of the UK Coalition government to withhold some benefits from ‘jobless’ EU migrants. I suggested that this group would be hard to define and that the most obvious persons to fall into this category would be those who are not only unemployed but also for some reason unemployable, such as Wadi Samin, an Austrian army veteran deemed permanently unable to work due to ill health. In Dano, the Grand Chamber of the CJEU seems to have confirmed that this is indeed the case. This decision has been welcomed by leaders including but not limited to David Cameron. However, it does not place major new restrictions on the right of free movement – rather it provides a welcome affirmation of the existing restrictions in the Treaties and secondary legislation. It does this by establishing that ‘sufficient resources’ in Article 7 of the Citizenship Directive refers to ‘own’ resources.

Ms Dano grew up in Romania but migrated to Germany where her 2-year old son, Florin, was born in 2009. Both are Romanian nationals. She settled in Leipzig with her sister and was issued with a permanent residence card in July 2011. She received no support from the child’s father but in addition to help provided by her sister, Dano received child benefit for her son, as well as an additional amount in maintenance payments. (totalling around EUR 317 per month). In 2011 she applied for a series of basic provision benefits (‘Grundsicherung’) provided under German legislation to jobseekers – subsistence benefit (‘existenzsichernde Regelleistung’) for herself, social allowance (‘Sozialgeld’) for her son as well as a contribution to accommodation and heating costs. This application was refused, as was a second application in 2012. An administrative challenge to the 2012 decision, based on Article 18 and 45 TFEU, failed. It was held that she was not eligible to receive these benefits under the relevant German legislation (Paragraph 7(1) of SGB II and Paragraph 23(3) of SGB XII).

She subsequently brought an action before the Social Court in Leipzig, challenging the refusal to grant these basic benefits. The Leipzig Court, although it agreed with the decision under appeal, was unsure that the German provisions were compatible with EU law, in particular the general principle of non-discrimination resulting from Article 18 TFEU, the general right of residence resulting from Article 20 TFEU and Article 4 of Regulation No 883/2004. It therefore referred four questions to the CJEU.

Question 1: the scope ratione personae of Article 4 Regulation No 883/2004

The first question concerned the scope ratione personae of Article 4 Regulation No 883/2004, which replaced Regulation No 1408/71 from 1 May 2010.  Article 4, headed ‘Equality of treatment’, provides:

‘Unless otherwise provided for by this Regulation, persons to whom this Regulation applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof.’

Having decided that the basic provision benefits sought were ‘special non-contributory cash benefits’ (within the meaning of Article 70(2) of Regulation No 883/2004) the Leipzig Court asked whether such benefits were covered by Article 4. The Grand Chamber confirmed that they did. Continue reading

Very private lives: “acceptable questioning” in sexual orientation asylum cases

Anita Davies

The CJEU’s judgment in the case of A, B and C is due by the end of the year. Ahead of the expected judgment, this post recaps the opinion handed down by Advocate General Sharpston in July.

In February 2014 The Guardian published details of the lines of questioning used by the UK Home Office in questioning gay and lesbian asylum seekers. The questions considered appropriate to ask vulnerable asylum seekers were shocking; including queries such as “what is it about men’s backsides that attracts you?”.

The Home Office’s prurient interest in the very private lives of asylum seekers has been attributed in part to the Supreme Court judgment in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31, where the Court found that asylum could not be refused on the basis that an individual would not face persecution due to their sexuality if they behaved with discretion when returned. The onus in questioning therefore shifted from conditions facing gay communities in the country of return to proving sexual orientation, resulting in the Home Office seeking to verify sexual orientation via intrusive questioning. Verifying sexual orientation in asylum claims is an issue that a number of EU states have sought to deal with, and Advocate General Sharpston’s opinion in ABC constitutes guidance as to what is considered acceptable questioning. However, as will be seen below, Sharpston’s opinion has to grapple with the central problem: how do you legally “verify” human sexuality? By its very nature sexuality is impossible to “prove” by reference to anything other than what an individual considers their sexuality to be.

  1. B and C were individuals who submitted asylum claims to the Netherlands authorities on the grounds of a well founded fear of being persecuted in their respective countries of origin because they were gay men. All were refused on the basis that their claims of sexual orientation were not “credible”. Two of the applicants had gone to some lengths to prove their sexual orientation: C had submitted a video depicting him performing sexual acts with a man, and A had been willing to submit to a test to prove that he was gay.

In her opinion, Advocate General Sharpston sought to set out some guidelines as to what was an appropriate method for assessing declared sexual orientation, and if the limits were different from the limits applied to an assessment of the credibility of other grounds of persecution. Sharpston recognised that an “individual’s sexual orientation is a complex matter, entwined inseparably with his identity, that falls within the private sphere of his life” [38], therefore, an applicant’s averred sexual orientation must always be the starting point in assessing a claim, however:

The competent national authorities are entitled to examine that element of his claim together with all other elements in order to assess whether he has a well-founded fear of persecution within the meaning of the Qualification Directive and the Geneva Convention.

It therefore follows ineluctably that applications for refugee status on the grounds of sexual orientation, like any other applications for refugee status, are subject to a process of assessment as required by Article 4 of the Qualification Directive. That assessment must, however, be carried out in a way that respects the individual’s rights as guaranteed by the Charter.” [48 -49]

Continue reading

Booklet on the application of the Charter of Fundamental Rights to asylum procedural law

Dr Iyiola Solanke

The European Council on Refugees and Exiles (ECRE) is a pan-European alliance of 85 NGOs. Its purpose is the protection and promotion of the rights of refugees, asylum seekers and displaced persons. Its mission is amongst the most challenging of our time: to promote the establishment of fair and humane European asylum policies and practices in accordance with international human rights law. ECRE activities include dissemination of information, monitoring of human rights violations and contribution to policy development. They also conduct legal research, most recently on the application of the EU Charter of Fundamental Rights to Asylum procedural law.

This 188-page booklet, compiled in association with the Dutch Council of Refugees and with financial support from the Fundamental Rights and Citizenship Programme of the European Union, draws upon the expertise of EUtopia contributor Gunnar Beck (SOAS, London) as well as Nuala Mole (AIRE Centre) and Marcelle Reneman (VU University Amsterdam). The booklet contains useful information that will increase practical understanding of the how the EU Charter applies to asylum and migration cases. As the authors state, this is important for two key reasons: not only for the proper implementation of the EU asylum acquis but ultimately to ensure that, at a time when asylum seekers, refugees and displaced persons are particularly vulnerable, ‘the rights of those seeking international protection are respected.’

A hard copy of the booklet can be obtained from Kimberly Friesen at the Dutch Council for Refugees. Alternatively, it is available online here.

Supranational Organizations as Administrative Governance (and the issue of constraints on scope of authority delegable to the European level)

Prof. Peter Lindseth

I have a new piece posted on SSRN that may be of interest to readers. Entitled ‘Supranational Organizations’, it will appear in the Oxford Handbook of International Organizations (Ian Hurd, Ian Johnstone and Jacob Katz Cogan, eds., forthcoming 2015). This chapter elaborates on the argument (made previously, for example, here and here) that supranational bodies – more specifically those of the EU – are best understood as extensions of modern administrative governance rather than as incipient democratic and constitutional bodies in their own right. The full chapter may be downloaded here. Below, however, are the closing paragraphs, which explore whether, as a consequence of their fundamentally administrative character, supranational bodies in Europe should be subject to some form of constraints on the power delegable to them, a question that goes directly to the administrative-constitutional distinction:

The problem with a “constitutional” framework for understanding European integration is that it ignores any limitation on the scope of authority delegable to the supranational level. It assumes European supranationalism can legitimize an ever-increasing range of regulatory powers in autonomously democratic and constitutional terms, as if supranational institutions are or could be a site of such authority in their own right, apart from the member states that created them. Even for the most sophisticated “constitutional” theorists of the EU, the evolution of European public law and supranational authority ultimately is a question of the functional demands of interdependence as they perceive them (Maduro 2012). Given the demands of the Eurozone crisis, this ultimately functionalist understanding suggests that the Eurozone crisis should have automatically led to both to greater fiscal capacities as well as an intensification of democratization and constitutionalization at the supranational level (Habermas 2013). This purely functionalist approach, however, ignores the complex interplay between the various dimensions of institutional change, not just functional (need), but also political (interests) and cultural (conceptions of right), as well as the ensuing process of contestation, reconciliation, and settlement (cf. Lindseth 2010, 13–14). This failure to account for the full complexity of institutional change leads to a temptation to view European legitimacy as primarily a matter of institutional engineering, most often revolving around more powers for the European Parliament (see, e.g., European Commission 2013).

By contrast, an historical-constructivist understanding of the EU as a denationalized form of administrative governance is deeply cautious about such engineering and, in view of the complex process of institutional change, stresses the ultimate constraints on the scope of authority delegable to the supranational level. Such supranational delegation constraints are analogous, I would maintain, to similar constraints that exist in national administrative states, expressed in such doctrines as the Italian riserva di legge, the German Vorbehalt des Gesetzes, or the American “nondelegation doctrine” (Lindseth 2014, 553, 556). Given the fundamentally administrative character of the European integration, the EU (qua [supranational organization (SNO)]) can sustain a great deal of autonomous regulatory power; nevertheless, there are limits to what it can reasonably sustain given the lack of autonomous democratic and constitutional legitimacy. Continue reading

Some comments on the UKAEL ‘Untying the Knot with Europe’ seminar

On 28 October 2014 the UK Association for European Law hosted a practitioners’ seminar: ‘Untying the knot with Europe: The legal implications of UK withdrawal from the EU‘. Topics covered included the legally complex and probably lengthy process of withdrawal from the EU involving disengagement from EU institutions and agencies, vested EU rights of individuals and companies, a review of UK legislation with an EU provenance, and settling the UK’s future relationship with the EU and the rest of the world.

Rhodri Thompson QC’s observations from the event are available in PDF here.

The Price is Not Right: Italian Troubles with Road Haulage and Tobacco Pricing

Angus MacCulloch, Lancaster University Law School

Two recent judgments handed down by the CJEU show how difficult it can be for a Member State to involve itself in fixing minimum prices for products. Given the ongoing challenge to minimum alcohol pricing in Scotland it is interesting that in both these cases the Court ruled against the fixing of prices, but for very different reasons. Neither case is directly analogous to the Scots alcohol MUP referred to the Court in Case C-333/14, but there are perhaps lessons that can be learnt.

Road Haulage

The first of the Italian cases is the least similar to the ongoing UK dispute, but it does indicate an important aspect of the wider problem with Member States interfering in markets. Cases C-184, 187, 194, 195 & 208/13 API and Others (ECLI:EU:C:2014:2147) concern a request for a preliminary ruling regarding the Italian Ministry for Infrastructure and Transport’s measures which fix minimum operating costs for carriage of goods by road. Charges payable by road haulage customers in Italy could not be lower than the minimum operating costs, and they therefore operated as a minimum price for services. The legislative provisions delegated the setting of the minimum operating costs to the Osservatorio; a group drawn from State, industry and stakeholder representatives. Its role was to ‘ensure the protection of road safety and the proper functioning of the market in the road haulage of goods’. The question the Court addressed was whether the fixing of prices by the Osservatorio could be compatible with EU law on the ground that it ensured road safety standards.

The Court first considered the nature of the measure itself – was it a public law measure, or a private arrangement? This is central to the applicability of EU competition law to the measure in question. Art 101 TFEU, when read in conjunction with Art 4(3) TFEU, applies where a Member State ‘requires or encourages’ anti-competitive agreements, or where it ‘divests its own rules of the character of legislation by delegating to private operators responsibility for taking decisions affecting the economic sphere’ [29]. Competition law does not apply to the legislative action of a Member State, as the Court makes clear in para [30]:

“where legislation of a Member State provides for road-haulage tariffs to be approved and brought into force by the State on the basis of proposals submitted by a committee, where that committee is composed of a majority of representatives of the public authorities and a minority of representatives of the economic operators concerned and in its proposals must observe certain public interest criteria, the fixing of those tariffs cannot be regarded as an agreement, decision or concerted practice between private economic operators”.

Even if the private parties were a majority on such a committee it would not affect the public nature of a measure ‘provided that the tariffs are fixed with due regard or the public-interest criteria defined by law’ [31]. However, on the evidence, it was clear that the Osservatorio was, in effect, a type of trade association. Eight of the ten members were industry representatives taking decisions by majority of its members; the State having no right of veto or casting vote [32-33]. The criteria upon which the Osservatorio operated were also problematic; its ‘guiding principles’ didn’t feature ‘any provision such as to prevent the representatives of the professional organisations from acting in the exclusive interest of the profession’ [35]. As to the road safety justification, the Court noted the legislation, ‘makes vague reference to the protection of road safety and, moreover, leaves a very large margin of discretion and independence to the members of the Osservatorio’ [37]. It therefore concluded, at para [38], that:

“In those circumstances, the national legislation at issue in the main proceedings does not contain either procedural arrangements or substantive requirements capable of ensuring, that, when establishing minimum operating costs, the Osservatorio conducts itself like an arm of the State working in the public interest”.

Having established that Art 101 TFEU applied to the measure, the Court turned to its potential for justification under Art 101(3). It rejected application of the Art 101(3) exception on the basis that while road safety may be a legitimate objective the fixing of costs was not ‘appropriate, either directly or indirectly, for ensuring that the objective is attained’ [51]. The measures also went beyond what was necessary as they did not allow carriers to prove that, although they charged lower prices, they fully complied with safety provisions [55]. The fixing of minimum costs could therefore not be justified.

Tobacco

The second case turns away from direct price fixing to a more indirect route: the taxation of tobacco products. In Case C-428/13 Yesmoke Tobacco (ECLI:EU:C:2014:2263) the Court considered the compatibility of the Italian rules setting excise duty on cigarettes. Those cigarettes with a lower retail price lower than brands in the most popular price category were charged a duty at 115% of the basic amount. This meant that the cheapest cigarettes, when compared with the most popular brands, were charged a slightly higher level of excise duty. With this higher level of duty their comparative price advantage was, at least partially, removed. It will not be a surprise to anyone that tobacco products are highly regulated in the EU, and that the protection of public health plays a significant role in that regulation. The relevant EU law is found in Directive 2011/64/EU which governs excise duty on tobacco products. The purpose of that Directive is to ensure the proper functioning of the internal market and neutral conditions of competition [23]. This reference to ensuring ‘neutral competition’ on the tobacco market became crucial to the rest of the judgment. The Directive draws a distinction between different types of tobacco product, for instance cigars and cigarettes, but treats all cigarettes as a single category without distinction. The Court made it clear, at para [31], that Member States, when imposing an excise duty, should not act in way which ran ‘counter to the objectives of that directive’:

“The establishment of different minimum tax thresholds according to the characteristics or price of cigarettes would lead to distortions of competition as between different cigarettes and would therefore be contrary to the objective pursued by Directive 2011/64 of ensuring the proper functioning of the internal market and neutral conditions of competition”.

Italy tried to rely on the public health objective to justify the imposition of the duty. The Court noted that the Directive already takes into account public health, at recitals 2, 14, and 16, and that the framework put in place by the Directive ‘does not prevent the Member States from taking measures to combat smoking and to ensure a high level of protection for public health by levying excise duties’ [36]. In that light the Court therefore ruled that the Directive precluded the setting of a differential rate of excise for a class of cigarettes based on their retail price.

It was clear in this case that the EU legislation took into account the health concerns in relation to tobacco and allowed the imposition of excise duty likely to discourage the consumption of tobacco; the Directive therefore did ‘not prevent’ health protection. But the Directive was also designed to ensure ‘neutral competition’ within the remaining market for tobacco products. The differential tax rate, which attempted to subvert normal price competition, was clearly then contrary to the purpose of the Directive.

Lessons for Minimum Alcohol Pricing

It is clear that the Scots MUP measure is not a disguised cartel, where the drinks industry’s attempts to set prices is given the protection by the State through legislation. But that does not mean that the API & Others is irrelevant to the ongoing SWA case. There is a clear connection between all three cases.

One of the questions raised in SWA regards the compatibility of MUP with Regulation 1308/2013 which governs, inter alia, the common market in wines. Art 167(1)(b) of the Regulation is particularly relevant as it prohibits Member States from laying down market rules which ‘allow for price-fixing’. On the face it of this could mean that the Scottish Parliament are constrained from introducing a minimum price for wine, in the same way as the Italian State was in relation to the imposition of a differential excise duty in Yesmoke. But if one considers Art 167 in context there is an argument that the apparently stark prohibition is more nuanced. The Regulations recitals make it clear that Producers Organisations and Interbranch Organisations (made up of producers and other industry stakeholders), as recognised in the Regulation, are to play a role in the organisation of the market; much as the Osservatorio did in Italian road haulage. It is not a surprise that the Regulation is clear that the rules in the common market, perhaps promulgated by way of a decision taken by an interbranch organisation (see Art 167(1)), should not relate to pricing. When read in this context it is not clear that the Regulation intends a bar on Member States adopting pricing controls unrelated to the common market organisation rules; i.e. where they are put in place for an entirely separate purpose.

Another interesting distinction between the Yesmoke and the SWA case is the fact that the tobacco Directive clearly has public health concerns at its forefront, and as the Directive had taken those concerns into account Italy was required to stay clearly within the terms of Directive. That is not the case in relation to the common market in wines. Health is mentioned in the Regulation, but only in relation of the production of foodstuffs, not in the wider public health concern that stems from the ‘hazardous and harmful’ consumption of alcohol. It would appear therefore that the Scottish Government may be able to argue that their separate concern for public health is outwith the terms of the Regulation and should be handled under the free movement provisions of the TFEU.

Events round-up

Over the past few weeks we have spotted a few interesting up-coming conferences, seminars and lectures, which we thought we would share with our readers.

On Monday 13th October, IALS are putting on what is bound to be an excellent seminar entitled “The Court of Justice of the European Union”.  The speaker is none other than Eleanor Sharpston, QC, Advocate General at the Court of Justice. See here for more details.

With the possibility of an in/out referendum if the Conservative party form the next Government, now seems like an opportune moment to consider the legal implications of ‘no’ prevailing.  Handily, the UK Association for European Law have had the same thought.  On 28 October, Professor Sir Alan Dashwood QC, Martin Howe QC, and our very own Rhodri Thompson QC will be speaking at a seminar entitled ‘Untying the knot with Europe: The legal implications of UK withdrawal from the EU’, chaired by Professor Philippa Watson.   More details here.

 On the  EU competition law front, the Franco-British Lawyers Society is holding a colloquium this Friday, 10 October, at the Competition Appeal Tribunal to discuss developments in competition and regulatory law in the UK, France, the EU and the USA, and in particular the soon to be adopted EU Directive on antitrust damages actions.  See here for more details.

And in the field of EU economic law, Professor Sue Arrowsmith will be delivering one of UCL’s Current Legal Problems lectures on 4 December entitled “Rethinking ‘economic’ derogations and justifications under the EU’s free movement rules: Proposals for a new approach and a taxonomy”.  Details here.