Category Archives: Discussion and Debate

UK treatment of EU migrants under scrutiny in Brussels

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Dr Iyiola Solanke

Readers of EUtopia Law may recall my comments in May on the government plans to introduce a duty upon landlords to check the immigration status of their tenants. I stressed that the proposed checks were likely to breach UK obligations under EU law. Since then, the plans have been modified in order to reduce the administrative burden and limit the reach of the envisaged rules. The intention now is to target the landlord duty only on those renting out properties in certain boroughs that are popular with migrants, such as Ealing and Hounslow in West London.[1] I would contend that this does not rid the policy of problems, but changes them: such a focus is likely to breach the EU Race Directive 2000/43[2], as well as the public sector equality duty (PSED) in Section 149 of the Equality Act 2010.[3]

The EU Race Directive sets out a framework for combating discrimination on the grounds of race and ethnicity. The scope, set out in Article 3 covers both public and private sectors and includes housing. Although the Directive explicitly excludes nationality, the landlord duty as currently envisaged is likely to disproportionately affect British black and minority ethnic communities. As a consequence of the demographics of housing, it is likely to prove difficult to target areas with high numbers of migrant populations without also targeting settled communities of colour. Ealing and Hounslow are examples of this: Lambeth and Stratford in South and East London are others. Beyond the Race Directive, the government should also consider the PSED, under which all public authorities must have ‘due regard to the need to’ not only eliminate conduct prohibited by Act, but also advance equality of opportunity and, perhaps most relevant to the landlord duty, foster good relations. The modifications may therefore be unlawful under national as well as EU law. Continue reading →

Alcohol Pricing, EU Law and the Court of Session

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Angus MacCulloch

There has been debate about the legality of minimum per-unit (MPU) alcohol pricing in the UK, since the SNP-led Scottish Government first suggested adopting such a measure back in 2009. I contributed to the debate on several previous occasions, but now there is a little more substance to be discussed after the Outer House of the Court of Session, on 3 May 2013, handed down its judgment in The Scotch Whisky Association and Ors, Re Judicial Review of the Alcohol (Minimum Pricing)(Scotland) Act 2012 [2013] CSOH 70. The judgment answers some of the questions posed, but, sadly, it leaves yet more unanswered. I doubt this will be the last that we see of minimum alcohol pricing before the courts.

The SWA petitioned the court challenging the legality of the Alcohol (Minimum Pricing)(Scotland) Act 2012 and a proposed Order under that Act which would have set the minimum price at 50p per unit. Under that Order the minimum price for a product would be set using the formula: MPU x strength x volume in litres x 100. For one of my favourite red wines this would mean a minimum price of £5.62 per bottle (£0.50 x 15% x 0.75 x 100). For a can of Stella Artois the minimum price would be £1.14 (£0.50 x 5.2% x 0.44 x 100). Continue reading →

Stop bashing the EU with olive oil

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Alberto Alemanno considers a tale of Euroscepticism, political opportunism and a European Commission ‘own goal’

In the aftermath of the last EU summit, one of the many provisions proposed by the European Commission within the framework of its action plan for the olive-oil sector unexpectedly gained global attention.

The provision, which had already won member states’ backing, would have required that restaurants serve olive oil in sealed, clearly labelled and non-reusable containers, instead of relying on refillable containers. The UK’s prime minister, echoed by his Dutch counterpart, publicly attacked the Commission’s adopted proposal by dismissing it as “exactly the sort of area that the European Union needs to get right out of”. While Dacian Cioloş, the European commissioner for agriculture, initially defended the proposal as a way to promote quality olive oil and to protect consumers from fraud, he rapidly withdrew the measure, declaring that the ban was “not formulated in such a way as to assemble widespread support”. Continue reading →

Addressing Violent Racist Policing – A Priority for Policing in the EU

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Dr Iyiola Solanke

May has not been a good month for policing in the EU. The service that they provide has been under the spotlight in various member states. The policing of racist violence is on trial in Germany, where the process against neo-Nazi Beate Zschäpe began this month. The alleged co-founder of the National Socialist Underground (NSU) terrorist group is accused with four other people of involvement in 10 murders of Turkish-Germans between 2000 and 2006, as well as in a bomb attack on a Turkish-German district of Cologne. The NSU had apparently believed that the German nation was under threat and had decided to save it by randomly executing Germans of Turkish descent. Each victim was shot: in the head, through the face, in the neck. The first victim was Enver Simsek, a flower seller from Nuremburg – he was found in the back of his delivery van with eight bullets in his body. He had been assassinated – shot at close range and his body fired into when he was already immobile. The last victim was Halit Yozgat, murdered whilst at work in his Internet cafe in Kassel. On trial is not only Zschäpe but the German police: they refused to acknowledge a racist motive behind the murders and treated them instead as gang killings, suspecting the families instead of supporting them.[1] The catalogue of errors by law enforcement officials ensuing from that basic blindness has led to comparisons with the murder of black teenager Stephen Lawrence in Britain 20 years ago and similar accusations of institutional racism.

The continuing problem of racist and violent policing is highlighted by riots in Sweden. Six nights of violence in May exposed the hidden tensions between the police and minority ethnic communities: schools have been set ablaze, businesses smashed up and stones thrown at police. The battles have left the international image of peaceful Swedish integration that we all believed in tatters – as is often the case it was only the voiceless victims who knew the reality. The violence has apparently been a long time coming: police have for years harassed black and ethnic minority citizens, and even those white Swedes associated with them. As in Germany, blinkered police interpretation played a leading role: arriving home with his Finnish wife after being chased by a gang of youths, a 69-year-old Swede of Portuguese origin emerged from his house brandishing a knife to confront the marauders; police arriving on the scene assumed they were dealing with a situation of domestic violence, broke into his home and shot him dead, in front of his wife. Who needs Elizabethan drama? The 21st century is littered with its own tragi-farcical material. The police then apparently inflamed the situation by calling the rioters ‘monkeys’ and ‘negroes.’[2] Continue reading →

Melloni and the future of constitutional conflict in the EU

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Dr Dorota Leczykiewicz

Constitutional conflict is a leitmotif of the relationship between EU law and national law. Courts of EU Member States are under a dual obligation of loyalty. On the one hand, they need to apply and respect their own laws, but on the other, they also need to ensure effectiveness of norms of the EU legal order. In the event of conflict, the principle of supremacy of Union law tells them to disapply conflicting national rules. Member States’ courts to a large extent accept that obligation, although they usually exclude from its ambit conflicts between EU law and state constitutions. For this reason, the best tactic for the Court of Justice of the EU is to avoid situations where EU law would require from national courts to act in violation of the state constitution. The Court of Justice has developed various techniques to deal with such instances of potential constitutional conflict. The controversial issue may be brought outside the scope of EU law (Grogan), EU law may be recognised to protect the same constitutional right and to the same far-reaching extent (Omega Spielhallen), or the principle of respect for national identity, as laid down by Article 4(2) of the Treaty on the European Union, may be used to allow national norms to remain applicable even when they undermine effectiveness of an EU norm (as I discuss here). In a recent judgment in the Melloni case(Case C-399/11, Judgment of 26 February 2013) the Grand Chamber of the Court of Justice of the EU decided not to use any of these techniques. Instead an EU Framework Decision was held to prevail over the Spanish Constitution. Continue reading →

The Hungarian Dilemma from a Pluralist Perspective

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untitledMatej Avbelj

[This piece was originally posted on the Verfassungsblog and is re-posted here with permission.  Readers may be interested in reading earlier posts on developments in Hungary, such as those by Kim Lane Scheppele here and here.]
 
The constitutional and political developments in Hungary in the last few years have stirred a lot of controversies and also raised significant academic attention. This blog has provided not only a wonderful forum for an exchange of different views, but it has also produced original and thought-provoking proposals for tackling the Hungarian problem.
 
However, the “reverse Solange” idea, the call for the establishment of a special Copenhagen Commission, for a straightforward supremacy of the Charter and other insightful proposals, all appear to be addressing the Hungarian dilemma from within the constitutional register. This is, of course, a legitimate choice, but it is neither exclusive nor neutral.
 
As the Lindseth-Halberstam exchange in particular demonstrated, the answers sketched for the resolution of the Hungarian dilemma are heavily dependent on the assumed or the desired character of the European Union.  Without engaging with the merits of the constitutional account of the European Union and without necessarily taking sides, I would like to use this post to explore – out of intellectual curiosity – the Hungarian dilemma from a pluralist perspective.

Continue reading →

The UK Immigration Bill and EU law

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immigration bill and EU lawDr Iyiola Solanke

‘My government will bring forward a bill that further reforms Britain’s immigration system. The bill will ensure that this country attracts people who will contribute and deters those who will not.’

Every government in the post-WWII period has promised to reform the immigration system. Fortunately words have been chosen carefully – none promise to improve it. In times past, governments have tried to gain support for stricter immigration controls with a ‘sweetener’, usually in the form of simultaneous promises to improve integration. This trend is visible in the Queens Speech of May 8th, but the tone is quite different: previously, equality was promoted as a right; for the Coalition ‘fairness’ is a reward for those who ‘work hard’. In short, the Coalition ‘is committed to a fairer society where aspiration and responsibility are rewarded.’

Yet this fair treatment does not extend to immigrants who the Coalition plan to subject to further unfair treatment at the hands of private landlords. The intention is to impose upon landlords a requirement to check the immigration status of tenants or face heavy fines. It is not clear which of the above reform goals this is designed to address: it seems to be a general measure to disseminate throughout society a message of ‘crimmigration’ – the criminalization of immigration whereby those who cross borders are per se regarded as a security threat and subjected to constant policing and monitoring.

Many have already questioned how this duty will work, given that there is no current register of the millions of private landlords in the country. Why should they make the effort to comply, even with the threat of fines? In order to make such sanctions effective they will have to be closely enforced; surely it will undermine the Conservative goal of reducing ‘red tape’ to introduce the necessary enforcement regime? Furthermore, given that discrimination on the grounds of nationality has been prohibited under EU law since 1957, can the government introduce a measure which explicitly targets non-nationals, including those arriving from the European Union?

Continue reading →

Thatcher’s EU Policy: A Personal Perspective

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Dr Gunnar Beck

I arrived in this country as a student from Germany very shortly before Mrs. Thatcher resigned as British Prime Minister.

I still remember that much of her party had fallen out of love with her in 1990, that she often came across as obstinate, narrow-minded, and ideologically driven, and that she divided opinion as no other politician I remember. At my college in Oxford she was almost universally and equally disliked by both my Communist and extreme conservative friends, although my college tutor Nevil Johnson whom I respected for his personally often difficult but impeccable moral rectitude, greatly admired her.  I have since had the opportunity of listening to many of her public pronouncements on the N. Ireland conflict and the miners’ strike, much of which struck me as lacking in compassion, sometimes crude, even inhumane at times. Many people  consider that her entire economic policy had disastrous social consequences and devastated entire regions of Wales, Scotland and Northern England. Continue reading →

Case Comment: Las v PSA Antwerp NV (C-202/11)

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Michèle Finck, University of Oxford

On 16 April 2013, the Grand Chamber of the Court of Justice of the European Union (hereafter referred to as ‘the Court’ or ‘the CJEU’) delivered its judgment in Anton Las. At issue in this case was a decree of Flanders, a federated entity of the Belgian State, which required all cross-border employment contracts to be drafted in Dutch, one of Belgium’s three official languages. The CJEU had to decide whether such a measure was compatible with the free movement of workers, enshrined in Article 45 TFEU.

The Court held that, while the measure at issue could have been justified by the objectives invoked by Belgium; namely the protection of a national language, the protection of employees and the effective supervision by the national authorities, the obligation was disproportionate and thus contrary to EU law. While this case raises many interesting questions, this blog post focuses on merely one of them, namely on the CJEU’s stance towards the right of a sub-national authority of a Member State to protect and encourage the use of an official language. Aspects specific to Article 45 TFEU will not be dealt with. Continue reading →

Case Comment: HMRC v Aimia Coalition Loyalty UK Ltd [2013] UKSC 15

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Matthew Wentworth-May

Last month the Supreme Court decided, by a majority of 3-2, to dismiss the appeal of the Commissioners for Her Majesty’s Revenue and Customs. The decision followed a reference to the Court of Justice of the European Union by the House of Lords, and an important part of the decision was the extent to which the ruling by the CJEU was determinative of the appeal. The majority thought that it was not and, despite seemingly clear statements from the CJEU to the effect that HMRC’s appeal must succeed, the majority still found for the taxpayer.

 The facts

Aimia Coalition Loyalty UK Limited (“LMUK“) operates the Nectar points scheme which rewards customers by giving them points when they buy goods or services from certain businesses (known as ‘sponsors’). The customers then redeem the points in return for other goods and services (“Rewards“) from other suppliers (known as ‘redeemers’). In practice the sponsors and redeemers are frequently the same business.

LMUK is paid by the sponsors for the points it issues under the scheme, and LMUK accordingly accounts for VAT in respect of the supply it makes of issuing points (LMUK also receives a fee for providing certain other services, such as marketing services). LMUK then pays the redeemers a fixed amount (a “Redemption Amount“) for each point which is redeemed in return for Rewards. Continue reading →