Zambrano: Unwritten?

Dr Iyiola Solanke

National courts have continued to deal with the consequences of Zambrano. Although Dereci and MacCarthy clarified that compulsion to leave related solely to practical consequences, the scope of ‘practical consequences’ was not determined by the CJEU. While the rupture of strong emotional and psychological ties within the family would not demonstrate compulsion to leave, would the removal of the rights to welfare engage the Zambrano right?

This question was discussed in a previous post on the ‘Zambrano Amendments’[1] introduced in 2012 at the same time as changes were made to the EEA Regulations 2006 implementing Citizenship Directive 2004/38 to give effect to the Zambrano decision.[2] These ‘Zambrano Amendments’ banned Zambrano carers from all mainstream benefits under national law – employed and unemployed Zambrano carers were henceforth excluded from eligibility for social security benefits, child tax credits and housing entitlements. In HC and Sanneh, it was decided that this blanket refusal of welfare benefits was legal – it did not compel a Zambrano carer to leave the EU. The substance of the Zambrano right to reside remained intact even if the Zambrano carer was left destitute and without adequate resources to care for the EU citizen child.

LJ Elias introduced in Harrison[3] what has become the standard dicta for understanding the Zambrano principle. Dismissing a broad approach to the CJEU ruling, he stated:

‘… The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality or life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to reside if residence remains possible as a matter of substance, albeit that the quality of life is diminished. Of course, to the extent that the quality or standard of life will be seriously impaired by excluding the non EU national, that is likely in practice to infringe the right of residence itself because it will effectively compel the EU citizen to give up residence and travel with the non-EU national. But in such a case the Zambrano doctrine would apply and the EU citizen’s rights would have to be protected (save for the possibility of a proportionate deprivation of rights).’

The Zambrano principle is thus limited to situations where the EU citizen is irrefutably in practice forced to leave the EU. The CJEU has not yet had an opportunity to comment on this approach and it has continued to be applied, most recently in Hines v London Borough of Lambeth[4] where the removal of one parent was found compatible with the Zambrano principle. Surprisingly, it was not applied in R (Osawemwenze) v SS Home Department[5] where both parents were told to relocate with two small children who may have been EU citizens. These cases continue the theme raised in my last post on the compatibility of rights under EU and ECHR law, in particular the rights of the child. The cases also provide further insight into the national judicial response to the Zambrano ruling.

Maureen Hines, a Jamaican citizen without permission to remain in the UK, was refused housing assistance despite being mother to a 5-year old boy, Brandon, who was born in the UK and thus an EU national. The reviewer for Lambeth decided that even if the refusal caused Hines to leave the UK, Brandon’s father, who had an EU right to permanent residence in the UK, could look after him: although his parents had separated, Brandon did spend two days and nights a week with his father. Continue reading

Call for papers – Nudging in Europe: What can EU law learn from behavioural sciences

We have been asked by our sometime contributor Alberto Alemanno to publicise a call for papers for an interesting-looking workshop in December 2013.  See below for more details.

Call for Papers
Nudging in Europe: What can EU Law learn from Behavioural Sciences?

OVERVIEW: A growing body of evidence suggests that insights from the behavioural sciences – from psychology and behavioural economics to neurosciences – can help design public policies that work better, cost less, and help people to achieve their goals. By showing that individuals deviate in predictable ways from neoclassical assumptions of rationality, behavioural sciences may help policy makers and administrative agencies to design policies that accommodate how people really behave, not how they are assumed to behave. 

Under both UK Prime Minister Cameron and US President Obama, policy makers have recently been encouraged to draw on behavioural and social sciences insights in the design or implementation of new regulations. In the UK, through a process of rapid, iterative experimentation (“Test, Learn, Adapt”), the Behavioural Insights Team has successfully identified and tested interventions that will further advance priorities of the British government, while saving the government at least £1 billion within the next five years. The US federal government has also been experimenting with the idea and is currently creating a new team that will help build federal capacity to experiment with these approaches and scale behavioural interventions that have been rigorously evaluated, using, where possible, randomized controlled trials. 

Although the results of the first nudging experiments are mixed, there seems to be an emerging consensus around the idea that regulation cannot work effectively or efficiently if regulators do not consider how targeted people respond. 

However, besides a few isolated initiatives displaying some behavioural consideration (e.g. revision of the tobacco products directive, consumer information regulation, behavioural advertising, behavioural remedies in competition law), the European Union has not yet shown a commitment to integrate behavioural research into its policy-making. Given the potential of this regulatory approach in attaining effective, low-cost and choice-preserving policies, such a stance seems inadequate when measured against the EU’s commitment to smart regulation in the Europe 2020 Strategy. 

Against this backdrop, our workshop aims to: (i) map the actual and possible uses of behavioural insights in EU policy making; (ii) explore what roles – if any – behavioural sciences may play in EU law; and (iii) discuss how they could be better integrated into EU law-making. 

TOPICS: Contributions may relate to any field of EU law. Contributions should seek to address the following points (or some of them) in relation to a particular area of EU law:
– Is there a place for behavioural insights in your chosen field of study? If so, what are, in your view, the most important reasons why behavioural sciences are relevant to the law?
– In the law as it stands, are there openings for developing behavioural arguments either at the policy or litigation stage?
– In your view, do behavioural sciences address questions about human behaviour that would be relevant to lawyers?
– What are the expected benefits and the expected challenges of integrating behavioural insights into the law?
– In your area of study, are the teachings of behavioural sciences more relevant at the stage of rule making or at the stage of individual decision (including adjudication)? 

Papers addressing the implications of behavioural sciences for contract law, competition law and risk regulation will be particularly welcome, but all areas of EU law are of interest. Where relevant, a comparative dimension (comparison between how behavioural insights are used in various jurisdictions) will also be welcome in full papers. 

ORGANISERS:
– Alberto Alemanno, Associate Professor of Law at HEC Paris and editor of the European Journal of Risk Regulation
– Anne-Lise Sibony, Professor of Law and co-Director of the Institute of European Law, Liege University School of Law 

EVENT: The event will consist of a one-day workshop to be held at the University of Liege Law School on December 12-13, 2013. Invited speakers will be reimbursed for reasonable travel and accommodation expenses. The workshop is supported by the University of Liege and the Jean Monnet Chair in EU Law & Risk Regulation at HEC Paris. 

OUTCOMES: It is anticipated that the papers presented at the workshop will form the basis for an edited collection. 

PAPER SUBMISSION PROCEDURE: Please submit an abstract of between 300 and 500 words, including a title, to Alberto Alemanno (alemanno@hec.fr) and Anne-Lise Sibony (alsibony@ulg.ac.be) by October 1, 2013.

Vacancy: Legal Secretary (Reférendaire) to Judge Vajda at the European Court of Justice, Luxembourg

Applications are invited for the position of Legal Secretary (Reférendaire) to Judge Vajda, which is expected to fall vacant in about November 2013.

The post involves providing advice on both substantive and procedural points of law arising in cases before the CJEU to Judge Vajda, preparing drafts of judgments and procedural documents, as well as contributing to the deliberations of the Court through written notes.

The internal working language of the CJEU being French, all written work will have to be carried out almost exclusively in French. Continue reading

The EU law blogosphere

We wanted to draw readers’ attention to a few other blogs dealing with matters of EU law.  First of all, we are delighted to draw attention to a new blog, europaeuslaw, founded by our loyal contributor Professor Peter Lindseth (U.Conn.), which will serve as the blog of the (future) European Law Section of the American Association of Law Schools.  Its primary purpose is to serve as a forum for debate on European law among scholars based in North America. Given the degree of EU law scholarship on the other side of the pond, it promises to be a great source of comment and analysis.

We are also pleased to mention the new blog from the Amsterdam Centre for European Law and Governanance.  We have already cross-posted one piece – by the Centre’s Director, Professor Deidre Curtin – and no doubt there will be more.  Staying in the Netherlands (indeed, in Amsterdam), we also like the European Law Blog, most of whose editors are at VU Amsterdam.  Then there is Martin Holterman’s blog, which carries an impressive amount of content and the King’s Student Law Review European Law blog.  And the EJIL: Talk! blog can also be relied on for at least some posts on EU law-related topics.

These are only a few of the English language blogs available and there are many more in other languages – for example Verfassungsblog frequently carries pieces on EU law.

Happy reading!

‘Fault, Not Solidarity’ to Save the Eurozone? Apparently It’s ‘Neither’

Prof. Peter Lindseth

 Just a brief update on one of my earlier posts that explored whether the idea of ‘fault, not solidarity’ could serve as a normative argument to support the sort of wealth transfers (‘burden-sharing’) that will no doubt be required in order to resolve the Eurozone crisis.

 One way in which such ‘burden-sharing’ might manifest itself would be in the recapitalisation of banks in peripheral countries like Spain, via the ESM.  The precarious state of bank balance sheets throughout the Eurozone, including Spain, is without doubt one of the ‘legacy problems’ that my ‘Fault, Not Solidarity’ post highlighted, drawing on an idea set out in a report by the INET Council on the Eurozone Crisis.  This is precisely the sort of problem that derives from ‘the original flawed design/perverse incentives of the EMU’ for which all members of the Eurozone should bear some responsibility. Addressing this problem via the ESM was certainly one of the implications, if not explicit agreements, of the Eurozone Summit in June.  Eurozone leaders recognized in the very first sentence of their summit statement that it was ‘imperative to break the vicious circle between banks and sovereigns’.  As Ambrose Evans-Pritchard wrote yesterday in The Telegraph: ‘The document said the ESM must be allowed to “recapitalise banks directly”, clearly referring to Spain’.

 It seems, however, that the finance ministers of Germany, the Netherlands, and Finland apparently don’t see it that way.  As a joint statement of September 25 made clear, in their view ‘the ESM can take direct responsibility of problems that occur’ only after a country has relinquished fiscal control under an ESM bailout and supervision memorandum. Otherwise, ‘legacy assets should be under the responsibility of national authorities’.

 So much for recognizing shared ‘fault’ as a basis for dealing with this key portion of the ‘legacy problem’ that my prior post highlighted.  As Evans-Pritchard concludes, the September 25 joint statement would seem to prevent the ESM ‘from recapitalising Spain’s crippled banks directly under a €100bn (£79bn) loan package agreed with Madrid in June. The burden will fall entirely on the Spanish state’.  And he further elaborates: ‘The extra debt burden is likely to be around €60bn or 6pc of GDP, depending on bank stress tests to be unveiled on Friday. Pessimists fear it could rise to 15pc of GDP once full losses from the property crash are crystallised’.

 I suppose we could call the proposed German-Dutch-Finnish approach to bank recapitalisation as ‘Neither Fault Nor Solidarity’.

EUtopia law is 1!

Saturday marked one year since the formal launch of the EUtopia law blog.  In that time we have carried pieces on topics as varied as the Eurozone crisis, the use of bus lanes by minicab operators, residence rights under EU law, the Emissions Trading Scheme, the Charter of Fundamental Rights, Scottish Independence and minimum alcohol pricing. In total there have been more than 180 posts, which equates roughly to a post every other day.  We have had 80,091 unique ‘hits’ from readers all over the world.

 We would like to say a big thank you to our contributors for making the blog what it is.  We also thank you, our readers, for taking the time to read and comment.  And we would welcome your feedback: what we do right, what we do wrong and what we don’t do but should.  Finally, we would be delighted to hear from anyone in academia, practice or public service who would like to contribute to the blog – just drop us a line.

Would an independent Scotland still be part of the EU?

Alan Trench

(This piece was initially published on 13 September 2012 on the Guardian’s website.)

With Catalan secessionism on the march, as well as debates about Scottish independence and a looming referendum, the question of EU membership for possible new states has become politically charged. By declaring that any state seceding from a member state would not automatically become a European Union member, EU commission president José Manuel Barroso has dealt a serious blow to a key part of the SNP’s plans for a “soft” form of Scottish independence.

EU membership is vital to the SNP’s plans in several ways. Automatic membership would emphasise the ease of the transition from being part of the UK to being an independent state, ensure continuity for Scotland’s economy and the business world and simplify negotiations with the UK government over independence. While an application for EU membership by an independent Scotland ought to be relatively straightforward, it would mean that the new state would have to spend two or three years outside the EU. Those negotiations might be complicated if Scotland were seen as a precedent for other “discontented” regions like Catalonia or Flanders, and perhaps by issues like the Schengen accord.

Continue reading

Seven days in Europe

The Commission has stated in a written note that respect for gay rights is a criterion for EU accession. Armenia is keen to become a member state, but Armenian law does not prohibit any sort of discrimination on grounds of sexual orientation, does not recognise same-sex partnerships and has no legal provision for individuals wishing to change gender. It repealed legislation criminalising homosexual intercourse in order to meet conditions for its accession to the Council of Europe in 2001.

Public attitudes are also considered a problem, with gay-friendly bars being vandalised and protesters at a small pro-toleration rally abused with slogans about gay people being a disease and a threat to children.

This looks likely to result in Armenia failing to meet the eligibility criteria for accession, with the Commission’s note quoting the 1993 “Copenhagen criteria”, the TEU arts 2, 10 and 19, and the European Charter of Fundamental Rights art 21.

Continue reading

Fault, Not Solidarity: a Normative Argument to Save the Eurozone?

Prof. Peter Lindseth

The pace of the Eurozone crisis often defies even the most conscientious observers. Mario Draghi’s comments last week that the ECB would do ‘whatever it takes’ within its mandate raised the prospect of ECB intervention in the secondary sovereign-debt market.  A follow-up joint declaration from Merkel-Hollande (that ‘they are committed to do everything to protect the eurozone’) was also bold, echoed by a similar declaration from Merkel-Monti.  But then there were news reports over the weekend suggesting that ‘everything’ apparently does not include purchases of Spanish debt by the Eurozone’s current bailout fund (the EFSF) or any additional concessions to Greece.

Behind the distractions of day-to-day events, however, certain fundamentals in the crisis persist.  With Spain seemingly unraveling, the adequacy of the existing crisis mechanisms remains as questionable as ever.  Commentators continue to argue that the functional demands of the crisis will eventually force Germany and other surplus countries to accept something like Eurobonds (debt-mutualization), if not in name then at least in substance.  In this regard, the publication last week of a report by group of 17 leading European economists, organized by the Institute for New Economic Thinking (INET), a Soros-backed outfit, has garnered a good deal of media attention, not merely for its dire warnings of impending disaster, but also its effort to outline a comprehensive solution to the crisis.

Continue reading

Taxi wars in London – High Court judgment

Christopher Brown

Rather as I predicted in an earlier post, Addison Lee has this week lost its claim against Transport for London in respect of the latter’s bus lane policy under which black cabs are allowed to use (most) bus lanes at all times whereas minicabs can only use them outside their hours of operation (save to pick up or set down pre-booked passengers).  Its claim was based primarily on Articles 56 and 49 TFEU (guaranteeing the freedom to provide services and freedom of establishment respectively), on the general EU law principle of equal treatment, and on Article 107 TFEU (on state aid), rather than on traditional domestic law grounds, which – as the Court noted at [16] – would have required Addison Lee to demonstrate Wednesbury unreasonableness.

In essence, the judge (Burton J) concluded that the case had nothing to do with EU law: Treaty rights were simply not engaged by the bus lane policy.  First, there was nothing to suggest that any of Addison Lee’s drivers from other EU Member States were affected by the policy, in terms of their decision to come to the UK or the decision, once in this country, to become minicab drivers.  The judge was “wholly unpersuaded that this traffic restriction has any relevance at all to freedom of establishment” ([55]).  As to the question of equal treatment, which the judge seems to have accepted (at least for present purposes) was in play, he was satisfied that black cabs were in a different position from minicabs, in that they needed to be accessible for people wishing to hail them on the street: it made “entire good sense for black cabs to be travelling in bus lanes” ([60(i)]).  There were also the points that only 8% of black cabs are pre-booked and so properly in competition with minicabs, and that if minicabs were allowed to use the lanes, there would be “no rational distinction” such vehicles and hire vehicles, chauffeured cars and the like:  in other word, extending bus lane use to minicabs would be the “thin end of the wedge” ([60(iii)]).  Finally, there was no question of the policy amounting to unlawful state aid, in part because inter-State trade was not affected by it and in part because, as previously mentioned, black cabs and minicabs were not in comparable situations, in light of the objective pursued by the measure concerned ([75]).

In my earlier post, I suggested that the effects of the regulations in question on EU trade freedoms might be too remote to be vulnerable to challenge on those grounds.  The Court has agreed: Burton J said that “this challenge has simply been the attempt to mount a challenge to a London traffic regulation by turning it into a “Euro-point”, and I am wholly unpersuaded by it” ([55]).  In other words, not every estuary of domestic law has been swamped by the incoming tide of European law: there are some parts which even EU law cannot reach.