Brexit Negotiating Terms of Reference

Dr Iyiola Solanke

At their first meeting in Brussels today, Michel Barnier and David Davis agreed overall Terms of Reference for the forthcoming Brexit negotiations. The Terms of reference set out a general structure and schedule for negotiations between now and October 2017. After today’s formal opening, actual talks will begin in July. Round 1 will take place in the week commencing July 17th followed by Round 2 in the week of August 28th, Round 3 in the week of September 18 and Round 4 in the week of October 9th. We do not yet know what happens beyond that date.

Setting the pattern for future negotiations, the joint post-meeting press conference was held in English and French, with interpretation provided by the European Commission. All negotiations and working documents will be produced in these two languages. The negotiations themselves will take place on two levels – general plenary sessions and smaller group meetings. The document states that each round of negotiations ‘should’ comprise public officials of both sides only however this leaves scope for others, such as business leaders and bankers, to also take part. Names are not given, but Politico has helpfully produced a list of the key players on each side.

Plenary negotiating sessions will be co-chaired by so-called ‘Principals’ and/ or ‘Co-ordinators’ – presumably from the central team on each side. These persons will have overall responsibility both for keeping the process on track and providing advice. They will also have responsibility for a specific dialogue on Ireland/ Northern Ireland, launched today.  It is not clear who will lead/co-ordinate the smaller group meetings or how many there will be – the ‘Principals’ have discretion to create additional working groups, sub- groups or indeed organise ‘breakout sessions’ as required.

In total, just 3 negotiating groups were created today. Two are very specific: Citizens’ Rights and Financial Settlement. The latter will clearly deal with the Brexit Bill and the former will focus on the situation of EU citizens in the UK and UK citizens in other parts of the EU. It is also to be hoped that it will deal with the situation of Zambrano carers whose rights to remain in the UK to look after their British citizens children also derive from EU law. The final negotiating group created today has a general remit and will focus on other Separation Issues.

The basis of the negotiations will be texts created by either side. There is no specific timeframe for sharing these materials – the document simply rather limply states that ‘Negotiation texts that are intended for discussion at any negotiating round should be shared at least one week in advance wherever possible.’ This is surprising – given the ever-decreasing timeframe, tighter rules on the exchange of documents might have been better.

The timeframe is also loose – the above-mentioned ‘Negotiation rounds’ will ‘in principle’ take place during one week in every month. However, this is a loose arrangement which can be departed from by mutual consent. Negotiators may also meet informally in between formal sessions to prepare negotiations. Continue reading

Brexit: a separate citizens’ rights agreement under Article 50 TEU

Stijn Smismans, Professor of EU Law, Cardiff University

Why a separate citizens’ rights agreement under article 50 is required

The European Council Guidelines for the Brexit negotiation adopted on 29th April 2017 (further referred to as Negotiation Guidelines), as well as the Council Directives for the negotiation adopted on 22nd May 2017 (further referred to as Negotiation Directives), show a clear EU commitment to defend the rights of the nearly five million people whose lives are most directly affected by Brexit, namely the EU citizens residing in the UK, and British citizens residing in the EU.  The Negotiation Directives clearly state that the withdrawal negotiations should ensure  ‘the necessary effective, enforceable, non-discriminatory and comprehensive guarantees’ and they favor a rather maximalist defense of the rights of these citizens (including judicial protection by the CJEU). The UK’s promises to protect the rights of these citizens are comparatively vague.  However, both the EU and the UK have agreed that dealing with the rights of these citizens is the first priority of negotiations. However, there is no procedural guarantee that these citizens would not end up as a bargaining chip.

The Negotiation Guidelines and Directives provide for a phased approach to the negotiations.  However, this phased approach aims primarily at separating the negotiation of the withdrawal settlement under Article 50TEU (phase 1) from the negotiation of an agreement on the future relationship between the UK and the EU (phase 2).  In addition to that, it provides for a second stage within the first phase (Article 50 withdrawal settlement).  In that second stage, the withdrawal negotiation can start to reflect on the potential scenarios for the future UK-EU relationship.  Article 50 requires ‘taking account of the framework for its [withdrawing Member State’s] future relationship with the Union’ when dealing with the withdrawal agreement.  However, the Guidelines state clearly that this second stage of the first phase will only start when the European Council has decided that there is ‘sufficient progress’ on the issues identified as priorities of the first phase.

Citizens’ rights have been identified as the first item on the agenda of the first phase of the negotiation process.   The proposed ‘phasing’ thus gives some level of separating citizens’ rights from other parts of the negotiation.  However, this is far from ring-fencing. The EU has taken the approach that as far as the withdrawal issues (phase 1) are concerned ‘nothing is agreed until everything is agreed’. This at least means that citizens’ rights issues might be traded off against other topics of the first phase of negotiation, such as the financial settlement and the Ireland-Northern Ireland border issue.  Moreover, they may even be influenced by the reflections about the future UK-EU relationship which will appear on the negotiation table as issues ‘to be taken into account’ prior to the finalisation of the Article 50 withdrawal agreement.  Hence, EU citizens in the UK and British in the EU remain fully at risk of becoming bargaining chips.

The proposed negotiation procedure entails two additional dramatic consequences for the 4.5 million citizens directly affected.  The principle ‘nothing is agreed until everything is agreed’ unnecessarily prolongs the uncertainty these people are living in.   Moreover, in the case that the withdrawal agreement fails, citizens will find themselves in a legal limbo with dramatic consequences.

The only solution to solve the uncertainty of 4.5 million people is to adopt an agreement on citizen’s rights at the start of the Article 50 negotiation, independently from other withdrawal issues.

So why has it not happened so far?

One can understand the EU’s reluctance to negotiate on citizens’ rights PRIOR to the triggering of Article 50.   The UK referendum was merely an internal affair as long as Article 50 had not been triggered.   Moreover, if negotiating a citizens’ rights agreement prior to Article 50 had been attempted, it would not have profited from the decision-making procedure of Article 50 (which allows for the agreement to be adopted via Qualified Majority in Council and consent by the EP, and thus not requiring ratification by national parliaments in the EU 27). Negotiation outside Article 50 would be more cumbersome since it may require ratification by all national parliaments.  Hence the ‘time advantage’ of starting negotiation prior to triggering Article 50 would immediately have been lost as the procedure itself would slow down the process.  Finally, the EU feared that negotiation on partial issues prior to the triggering of Article 50 would undermine the unity of the EU 27.

However, now that Article 50 has been triggered, there is no reason why a separate agreement on citizens’ rights cannot be negotiated prior to all other issues.

The moral argument in favor of that remains as strong as ever before.  The strategic argument of the EU that it would encourage ‘cherry-picking’ is also hardly convincing.  The EU has by now set out  its institutional framework, priorities and strategy for the negotiations.  It is no longer unprepared, and has the institutional mechanism in place to ensure unity in response to the UK in negotiations.  Moreover, arguments that a separate citizens’ rights agreement opens the way for cherry-picking are based on the wrong assumption.  Accepting ring-fencing for citizens’ rights does not create any obligation to do the same for other issues.  There is a strong moral argument to state: ‘a separate agreement will only be done on citizens’ rights given the human costs involved’.  As will be shown below that does not create any legal precedent for the EU to accept separate agreements on other issues.

The only remaining question then is whether it is legally possible. More precisely, the question is whether the rights of post-Brexit EU citizens can be legally ring-fenced from other negotiation topics and be safeguarded prior to the end of the withdrawal negotiation, and in a way that it stands even in failure of the latter.

To show whether ring-fencing is legally possible we need to address three questions:

  • Is it possible to adopt a separate agreement on citizens rights signed under Article 50?
  • How to ensure procedurally that the negotiation of these citizens’ rights, and of this separate agreement, is not mixed up with other Brexit negotiation issues (ring-fencing in the strict sense).
  • How to ensure that the agreement comes into force even if other aspects of the Brexit negotiation fail (safeguarding)

Is a separate agreement legally possible under Article 50 TEU?

As confirmed in Article 5 of the Negotiation Guidelines, Article 50 TEU confers on the Union an ‘exceptional horizontal competence to cover in this agreement all matters necessary to arrange the withdrawal. This exceptional competence is of a one-off nature and strictly for the purposes of arranging the withdrawal from the Union.’ There is no doubt that addressing the rights of the 4.5 million is inherently an issue of withdrawal, and can thus be dealt with via Article 50.  These are issues on which the EU has been able to act on behalf on the Member States so far, and this competence extends (thanks to Article 50) to dealing with all withdrawal aspects related to it.

However, Article 50 TEU talks about a withdrawal agreement in the singular. The question is then whether a separate agreement on citizens’ right under Article 50 is possible.  I will argue that the use of the singular in relation to ‘agreement’ does not exclude legally that the withdrawal could be composed of several agreements, as long as the objectives and spirit of Article 50 TEU are respected. Continue reading

The week that was

Dr Iyiola Solanke

For the first time since sending the Article 50 Letter, the Prime Minister met with European Council President Tusk in what was described as a positive meeting where it was agreed to de-escalate the row over Gibraltar.

Wider response to the activation of Article 50 has been dismissive. In Germany, a Bundestag debate about Brexit was hardly reported. In the European Parliament, EP President Verhofstadt described Brexit as a “catfight in the Conservative party that got out of hand – a loss of time, a waste of energy and a stupidity.” Unity and the future of the 27 remaining member states was stressed as the EP endorsed the European Council draft negotiation guidelines.

The Commission launched its Brexit website – this lays out the organization of the Taskforce that will conduct negotiations with the UK. General enquiries about the work of the taskforce can be sent to tf50-contact@ec.europa.eu. Head of the EU Taskforce, Michel Barnier, presented his three pre-conditions for a Withdrawal Agreement – unity of the 27, removal of uncertainty and finally ‘doing things in the right order and putting them into perspective’ ie. agreeing the exit before the future relationship. In an interview during her trip to Jordan, Theresa May confirmed this, saying that a final trade deal between the UK and the EU will only take place after the UK has left and is a non-EU country. Thus within the first seven days of Brexit, the UK retreated from key aspects of its negotiating position. All seem agreed however that negotiations must be completed by March 29 2019.

May’s claim that “no deal is better than a bad deal” was also challenged by the Parliamentary Brexit Committee. It published a Report which asked for an impact assessment of what the economic fallout would be. It seems that the Treasury has not carried out a detailed economic forecast of Britain’s Brexit options since the referendum. Regardless, the Government has agreed to underwrite Erasmus+ programme contracts signed while the UK is still in the EU. Beyond 29 March 2019 is uncertain – UK participation in the programme may continue subject to negotiation between the Government and the EU.

Finally, don’t be surprised if there are delays at some borders: EU plans to start border checks on everybody entering and leaving the EU came into force on April 7. Now EU and non-EU citizens will be checked in a bid to increase security. EU Commissioner for Security, Julian King, is also pushing for the introduction of a fingerprint identification service for inclusion in the increasingly used Schengen Information System – 4 billion queries were made to SIS in 2016, a 40% increase from 2015.

From the CJEU:

Competition Law: AG Opinion in Case C-671/15 President of the Autorité de la concurrence v Association des producteurs vendeurs d’endives (APVE) and Others

Agricultural producer organisations and their associations may be held liable for agreements, decisions or concerted practices contrary to EU competition law. That is the case, in particular, where concertation on prices or on the quantities placed on the market and exchanges of information occur between several (associations of) producer organisations or between such bodies and other types of operators on the market.

Area of Freedom, Security and Justice: Case C-544/15 Sahar Fahimian v Germany

National authorities may refuse, for reasons of public security, to grant a visa for study in a sensitive field – such as information technology security – to an Iranian national with a degree from a university subject to restrictive measures. Although the national authorities enjoy a wide discretion determining the existence of a threat to public security, the decision to refuse a visa must state proper reasons.

The phoney war is over. Theresa May has triggered Article 50. The clock is ticking. But clarity and legal certainty remain elusive

Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School)

In her letter to Donald Tusk the Prime Minister outlined the UK’s starting position in negotiations with the EU. The EU Council of Ministers responded by producing draft negotiating guidelines (to be confirmed by the European Council at the end of April). These guidelines create the framework within which negotiations on withdrawal, and those on the future relationship between the UK and the EU, will occur. Meanwhile, a White Paper on the Great Repeal Bill was presented to Parliament, promising on the one hand to repeal the European Communities Act (ECA) and end the supremacy of EU law in the UK, and on the other to convert the acquis communautaire into UK law, so that ‘EU-derived rights’ (as we will need to get used to calling them) will, as far as possible, be unaffected.

The opening exchanges between the UK and EU have generated a lot of comment. Much of it has focused on the unlikely subject of Gibraltar (Michael Howard’s crass evocation of the Falklands conflict will have done nothing to lower simmering tensions). In relation to the White Paper, most attention has been devoted to the role of Parliament and the devolved assemblies. Rather less attention has been paid to many of the EU law aspects. In this short note, I focus on those. I first consider what new light has been shed on the way in which the Article 50 negotiations will proceed, drawing attention to the host of issues which remain unanswered. I then consider the EU law questions raised by the repeal of the ECA, and the conversion of the acquis into UK law. Michael Ford has already commented on this blog on the applicability of judgments of the European Court of Justice in the post-Brexit era; so there is no more on that subject here.

My overarching concern is that the Government, in particular in the White Paper, has failed to provide a clear sense of the size of the task which lies ahead. It is impossible to know whether this is because the Government itself does not appreciate the magnitude of the challenge, or because it is trying to conceal the difficulties. The Government has, for months, struggled to articulate just what Brexit might mean, and has made a series of disparate promises which a range of different constituencies have, if so minded, been able to rely on, or cling to. It will now start making hard choices. It has not prepared the ground well.

Theresa May’s letter set a conciliatory tone, using much more constructive rhetoric than hitherto. She emphasised her desire to build a ‘new deep and special partnership’ with the EU. She expressed the belief that ‘it is necessary to agree the terms of our future relationship alongside those of our withdrawal from the EU’. And she made it clear that the ‘no deal’ scenario is ‘not the outcome which either side should seek’. This is not the tone avid Brexiteers had been expecting.

The EU responded with a draft of the negotiating guidelines which are to ‘define the framework for negotiations under Article 50’ (though note that the European Council, a little ominously, reserves to itself the power to ‘update these guidelines in the course of the negotiations as necessary’). Article 50 does not afford a role to the withdrawing state in the drafting or scope of these guidelines; like them or not, the UK will have to abide by them. The Council repeated ‘its wish to have the UK as a close partner in the future’. But it is immediately clear that the relationship will be very different to the one we have all become used to. In the very first paragraph of the draft guidelines there are references to ‘the integrity of the Single Market’ and to the fact that there ‘can be no “cherry picking”’, and a clear statement that a non-member of the Union ‘cannot have the same rights and enjoy the same benefits as a member’. The guidelines go on to say that withdrawal negotiations ‘will be conducted as a single package’; ‘individual items cannot be settled separately’; and ‘there will be no separate negotiations between individual Member States and the United Kingdom’ on matters pertaining to its withdrawal.

The disagreement relating to the sequencing of the negotiations will be one to watch over the coming weeks and months. Article 50 provides some guidance here, with paragraph 2 providing that the withdrawal agreement with, in this instance, the UK, shall be negotiated and concluded ‘taking account of the framework of its future relationship with the Union’. On the basis of this wording, I have argued that the European Council should have agreed to commit to negotiations with the UK in relation not only about a narrow withdrawal agreement, but also about a broader agreement on the future relationship between the UK and the EU (so that the substantive reality of Brexit is known by the end of the two year negotiating period). The EU has, however, opted for a phased approach to the negotiations, seeking first to ensure that there is an orderly withdrawal. In the light of the wording of Article 50, perhaps reluctantly it has conceded that ‘an overall understanding on the framework for the future relationship could be identified during a second phase of the negotiations’, adding that the EU and its Member States ‘stand ready to engage in preliminary and preparatory discussions to this end in the context of negotiations under Article 50 TEU, as soon as sufficient progress has been made in the first phase’ (see para.4). In this instance it appears as though the UK has the law on its side; but there is little it can do to force the EU to broaden the scope of the negotiations before it is ready to do so. Continue reading

Age discrimination is not in fashion: AG Bobek’s Opinion in Abercrombie & Fitch v Bordonaro

Dr Jule Mulder, University of Bristol

The Facts

The case is concerned with the conformity of Italian law on on-call contracts with the EU principle of non-discrimination on grounds of age. Antonino Bordonaro was employed under an on-call contract (similar to a zero-hour contract) by Abercrombie & Fitch Italia Srl on a permanent basis. Upon his 25th birthday Mr Bordonaro was dismissed due to the fact that he no longer complied with the conditions for the intermittent contract, as laid down by Article 34(2) Legislative Decree No 276/2003 applicable at the time he was hired. The (now repealed) Italian law in question provided special arrangements regarding access to and dismissal from on-call contracts for some workers. While on-call contracts under Italian law are usually subject to objective reasons and certain conditions, the provision allowed for such contract to be offered ‘in any event’ to workers under the age of 25 or above the age of 45. At the time of Mr Bordonaro’s dismissal, Article 34(2) had been modified. The older age bracket was lifted from 45 to 55 years of age. Moreover it was specified that an on-call contract can ‘in any event’ be concluded ‘with a person under 24 years of age, on the understanding […] that the contractual service must be performed before the age of 25 is reached’. The modified provision thus allowed automatic termination of permanent on-call contracts with younger workers once they reached the age of 25, in addition to allowing more flexibility regarding younger and older workers’ exposure to on-call contracts. Unsurprisingly, the Supreme Court of Cassation (Corte Suprema di Cassazione) identified the direct and clear reference to age in Article 34 as potentially problematic and asked the Court of Justice of the European Union (CJEU) to rule on its compatibility with the principle of non-discrimination on grounds of age in Directive 2000/78 and Article 21 of the EU Charter.

The Legal Analysis

Advocate General (AG) Bobek delivered his Opinion on 23 March 2017. In his preliminary observations, he raises interesting questions regarding first, the relationship between Directive 2000/78 and Article 21 EU Charter, and second, in relation to the Charter’s function as an interpretive tool within the context of private law. The question whether the national legislation, the contract and the dismissal of Mr Bordonaro constitute age discrimination is however only discussed with reference to Directive 2000/78. This case comment will focus on the latter, namely the potential direct age discrimination and its justification.

Under Article 2(2)(a) Directive 2000/78 direct age discrimination occurs where one person is treated less favourably than another is, has been or would be treated in a comparable situation because of their age. Regarding the comparability of situations, AG Bobek emphasises that comparable does not mean identical. It rather requires an examination of whether ‘in relation to a given quality (that is, tertium comparationis, which may be a value, aim, action, situation, and so on), the elements of comparison (such as persons, undertakings, products) demonstrate more similarities or more differences’ (para. 40). Such comparison needs to be carried out considering the broader context and in the light of the subject matter and purpose of the act. As Directive 2000/78 focuses on employment and occupation, he then assesses whether workers in different age groups are in a comparable situation in terms of access to employment and dismissal. In particular, he emphasises that ‘the comparability of such different groups of persons would only be precluded if there were an element, such as a personal feature or a factual or legal circumstance, which makes the situations so different that the comparison becomes illogical or unreasonable’ (para. 45). He also rejects that structural and high youth unemployment means that younger workers are in a different situation because their comparability is only assessed considering a ‘number of factors that are relevant for the given quality’ (para. 47). Since all age groups are competent to do the job and apply for the same positions, there is no reason why they should not be offered the same working conditions.

To assess the (un)favourability of the treatment, AG Bobek then refers to the need to conduct a global assessment ‘balancing different elements of the contractual relationship, conditions and considerations’ (para. 64) including the impact of the contract in terms of pay and annual leave as well as access to the employment market. With reference to Mangold (C-144/04, EU:C:2005:709) and Georgiev (C‑250/09, EU:C:2010:699), he considers that the case law indicates that the ‘less favourable character is ascertained through a global assessment of the conditions emanating from the contractual regimes applicable to specific age categories, taking as a point of reference the ordinary employment relations’ (para 66). In these cases the CJEU identified a less favourable treatment because less stable (e.g. fixed-term) contractual relationships with older workers were authorised with no restrictions.

AG Bobek then points at a number of issues that will have to be considered. First, the on-call contracts allow maximum flexibility for the employer while the worker does not have an agreed working time or guaranteed income. Younger and older workers are exposed to this flexibility without the presence of objective reasons justifying the contractual arrangement as required for workers in the intermediate age group. Secondly, while the availability of on-call contracts may offer broader access to the job market, the existence of such contracts without imposing any additional requirements may also make it more difficult for these workers to find regular employment. Finally, the legislative history – the increased upper age limit from 45 to 55 years – and the general character of the provision as a derogation of the general rule indicate that access to these contracts is not always seen as favourable. All of these factors are to be taken into account when the national court makes its global assessment. The assessment should thus neither focus on specific rules alone nor should some negative or positive elements be considered in isolation.

Finally, AG Bobek assesses any possible justification under Article 6(1) Directive 2000/78. The primary aims of Article 34(2) identified by the Italian Government were (1) the flexibilization of the labour market to increase employment, (2) helping young people to access the labour market, and (3) ensuring that young people have opportunities to gain work experience, albeit not in stable employment. All of these aims fall within the remit of Article 6(1)(a) on employment policies, labour market and vocational training. AG Bobek then continues to assess the possible appropriateness and necessity of the measures considering each of the aims. Throughout the analysis, he particularly raises questions regarding the consistency of the measure. For example, the provision only increases flexibility for old and young workers and not for all workers, the provision on automatic termination may cancel out the advantage of labour market access facilitated by the creation of on-call contracts, and the personal scope is not limited to those young workers who require additional experience, education or apprenticeship. The need to consider less intrusive alternative measures is also highlighted.

In conclusion, AG Bobek suggests that the Italian law is only compatible with Article 2(2)(a) and 6(1) Directive 2000/78 if the national court determines that it can be justified under and pursues a legitimate aim linked to employment and labour market policy, and achieves that aim by means which are both appropriate and necessary. Continue reading

The week that was

In between the celebrations for 60th Anniversary of the Treaty of Rome and April Fool’s day, Day 1 of Britain’s exit from the EU began. On March 29th Sir Tim Barrow was despatched with a 6-page letter from Downing Street , which was ceremoniously handed over in front of the worlds cameras as he shook hands with European Council President Donald Tusk. The picture inevitably made front page news but in contrast to the media, markets failed to react either positively or negatively making Day 1 strangely anti-climactic – in effect more of a whimper rather than a bang. Nonetheless, the countdown has begun.

Day 2 brought a swift EU response in the form of Brexit Negotiating Guidelines. Despite expressing the deep regret that Brexit will now happen by March 29th  2019, the EU repeated its resolve to act as one. It set out core principles which also made clear that Britain’s desire for a UK-EU relationship of bits and pieces was delusional. Two phases for negotiation are set out: Phase 1 will focus on ‘disentanglement’, including consideration of the so-called ‘Divorce Bill’; Phase 2 will only begin when according to the European Council ‘sufficient progress’ has been made on Phase 1. Phase 2 of negotiations will include discussions only on the ‘overall understanding on the framework’ for the future relationship.  In another blow to Government plans, the Guidelines state that agreement on a future relationship can only be concluded when the UK becomes a ‘third country’ – work towards a free trade agreement can only begin once the UK is no longer a Member State of the EU. An LSE-Briefing Paper by Damian  Chalmers gives a clear overview of the challenges facing the Government negotiators.

Transitional arrangements can be considered, but it is unclear in which phase. What is clear is that during any transitional phase prolonging the EU acquis all Union regulatory, budgetary, supervisory and enforcement instruments and structures will continue to apply. However, transitional arrangements cannot provide a shelter for trade talks – as explained above, if this means that the UK remains a Member State, movement towards a free trade agreement with EU will be stalled. A transition period may therefore prove a hurdle to the conclusion of a free trade agreement or any future partnership in areas such as security and defence, terrorism, international crime. Transition is not the only hurdle – the EU has linked the application of any agreement between the UK and the EU in Gibraltar to a prior agreement between the UK and Spain. It is clear what lies behind this: 96% of residents on the Rock voted to remain in the EU. Nicola Sturgeon must be green with envy – the SNP would no doubt also welcome such protection.

The EU is also clear that the future partnership must include enforcement and dispute settlement mechanisms that do not affect the Unions autonomy – there can be no doubt since Opinion 2/13 on EU accession to the ECHR how jealously the CJEU will also guard its own powers. Thus it is hard to see how the UK can square this with its statement in the White Paper, published on Day 3, that the jurisdiction of the CJEU in the UK will end when we leave the EU. Unless, of course, it plans to leave the EU without any agreement.

Day 3 saw the publication a White Paper on Legislating for the UK’s Withdrawal from the EU. The centrepiece of this is a ‘Great Repeal Bill’, setting out the government’s vision of legislating for withdrawal from the EU. The plan for the Great Repeal Bill is to provide for ‘minor changes’ – it will repeal the ECA 1972 and incorporate wholesale the EU acquis communitaire (the Treaties but not the Charter, EU Regulations and Directives including implementing and delegated Regulations and Directives, and all CJEU case law) into UK law, convert EU Regulations into domestic law (these will be known as EU-derived law) and finally create limited discretionary powers for creation of secondary legislation. This secondary legislation will enable necessary ‘corrections’ to laws that would not function properly outside of the EU. In order to have the power to make these corrections, the Bill proposes the introduction of a so-called ‘Henry VIII clause,’ although this may cause significant problems according to Lord Neuberger.

It is questionable whether all this amounts to a ‘minor change’. It seems that the ‘Great Repeal Bill’ will create more in UK law than it repeals. By March 2019, and for an undefined period of time there will be two sets of laws: UK law and ‘EU-derived law’ both of which will remain relevant until repealed. Repeal, conversion, and correction to fill gaps in EU derived laws will be an ongoing process. While the use of Henry VIII powers is defended as necessary to provide legal certainty, the Bill envisages that there will be flux and constant change. Thus the law may change more than once during the process as negotiations continue.

The CJEU is specifically mentioned: while according to the Bill the jurisdiction of the CJEU in the UK will end, its case law will live on in EU-derived law: the White paper states that

‘as long as EU-derived law remains on the UK statute book, it is essential that there is a common understanding of what that law means…To maximise certainty, therefore, the Bill will provide that any question as to the meaning of EU-derived law will be determined in the UK courts be reference to the CJEU’s case law as it exists on the day we leave the EU…the Bill will provide that historic CJEU case law be given the same binding, or precedent, status in our courts as decision of our own Supreme Court’ (Paras 2.14 & 2.16)

EU law decided until March 29 2019 will therefore continue to influence law in the UK. Continue reading

The week that was

The week that saw the 10th anniversary of the European Research Council, began with the renewed demand by the First Minister of Scotland, Nicola Sturgeon, that Scotland have a chance to vote on whether it leaves the UK before the UK leaves the EU. This would be at some point between Autumn 2018 and Spring 2019. Her demand was immediately rebuffed by Teresa May, who condemned the move as the wrong policy at the wrong time, and committed herself to holding together this ‘precious, precious Union.’

As Stormont rose, the Lords retreated – having seen their two amendments on EU workers and a meaningful vote rejected by an increased majority, they allowed the 2 paragraph Brexit Bill to pass into law un-amended. Teresa May now has the power to begin Brexit talks and many expected Article 50 to be triggered by Tuesday but this did not happen, perhaps due to the storm brewing in Stormont, or the worry caused by Wilders in the Netherlands. The latter was resolved when Dutch voters rejected his racist and xenophobic vision for their country; it remains to be seen if and how Scottish voters will respond to the SNP.

The week also brought a visual manifestation of the chilly relations between the EU and the USA. Due to bad weather on Tuesday, the meeting between Merkel and Trump was postponed to Friday. Merkel may have been present as the German Chancellor but is widely seen as the leader of the free world and the voice of the EU. The body language at their press conference said it all, but in case of any doubt, there was then the so-called ‘Merkel Moment’.

John Major re-launched his condemnation of Leave campaigners saying “It was dishonest and wrong to promise the British people an easy, favourable deal with the EU, wrong to promise swift new trade deals, and wrong to state that the Irish peace process would not be unsettled by Brexit.” He dismissed claims that Britain could thrive under WTO rules, warning that 90% of UK exports to the EU would become more expensive, with tariffs that would add about £6bn to their costs.

Officials from the Department for International Trade may agree with him, which is why a Brexit Plan B is being discretely drawn up. They are investigating whether the UK can invoke the rarely–used Article 24 of the WTO Treaty. This would allow the U.K. and Brussels a “reasonable length of time” after Brexit to agree a transitional free-trade deal before WTO law forces both sides to impose the same tariffs on each other as they do on everybody else. Such an interim deal would avoid a ‘hard Brexit’ in March 2019 by keeping tariffs at zero when the UK leaves the Single Market.

Major also condemned the ‘fake facts and bogus promises’ spread by the Brexiters. Indeed far from the promised infusion of an extra 350 million per week,  the NHS is becoming de-staffed and de-skilled: nurses are leaving and not being replaced. Many of the 55,000 doctors and nurses in the NHS from the EU have felt unwelcome after the EU referendum and are now leaving. Simultaneously, new registrations of EU nationals as nurses in England have dropped by 92% since June 2016.

Given the departure of health-care experts, it is some comfort that the EU’s Rapid Alert System for dangerous products seems to be functioning well. According to the report for 2016, national authorities removed more dangerous products from stores and in response to increased e-commerce, the Commission has increased cooperation with Amazon, Ebay and Alibaba to tackle potentially dangerous products, such as toys, sold online. The Commission also continues to plan for the 60th celebrations of the EU on March 25th where the White Paper, presented by the European Commission setting out the vision of the 27 for the future of Europe after Brexit, will be debated. Continue reading

Achbita and Bougnaoui: raising more questions than answers

Case Comment: Case C157/15 Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV and C-188/15 Asma Bougnaoui Association de défense des droits de l’homme (ADDH) v Micropole SA

Samira Achbita and Asma Bougnaoui were both fired for wearing an Islamic headscarf in the workplace. In its Grand Chamber ruling of March 14th the Court of Justice of the European Union (CJEU) ruled that internal company rules banning the wearing of visible religious, political or philosophical symbols do not constitute direct discrimination on the grounds of religion or belief. It also developed some criteria according to which indirect discrimination can be legitimate and objective.

The case Achbita has already attracted critical attention (see HERE, HERE and HERE). Indeed, it is of great significance. Advocate General Kokott sets out the core question in her Opinion:

“Is a private employer permitted to prohibit a female employee of Muslim faith from wearing a headscarf in the workplace? And is that employer permitted to dismiss her if she refuses to remove the headscarf at work? These are, in essence, the questions which the Court must answer, for the first time in the present case, from the point of view of EU law, and, more specifically, in the light of the prohibition on discrimination based on religion or belief.”(para 1)

Developments with regard to the wearing of religious symbols and clothing are being closely watched across Europe and remain subject to ongoing discussions and political debate. The key question is whether and how this ruling of the CJEU provides a judicial space for employers to ban the wearing of religious symbols in the workplace.

The cases concerned Belgian and French women employees who were fired for wearing an Islamic headscarf. In the case of Achbita the preliminary question referred asked how Article 2(2)(a) 1 and 2 of Employment Framework Directive 2000/78 on equal treatment in employment and occupation must be interpreted. The core question was whether the prohibition on wearing an Islamic headscarf, set out in the general internal rules of a private company, is direct discrimination.

In its assessment, the CJEU found that the internal rules at issue banned all visible religious, political or philosophical symbols and that they applied in the same way to all employers so as to secure a neutral company image. The internal rules were applied without distinction, explicitly prohibiting the wearing of any visible sign of political or philosophical beliefs not just visible signs of religious beliefs. Therefore, the court concluded that the ban at issue could not be regarded as direct discrimination in the sense of Directive 2000/78.

The CJEU however recognised the possibility that such an internal rule could lead to indirect discrimination. This would be the case if the rules were capable of putting individuals of certain religions or beliefs at a particular disadvantage in comparison with other employees. Nonetheless, it held an indirect difference of treatment may be objectively justified by a legitimate aim, provided that the measure at issue is appropriate and necessary for achieving that aim.

In its ruling the CJEU thus concludes that the aim of an employer to present a neutral image towards its clients is legitimate, as long as these rules refer only to employees in direct contact with clients. The CJEU concludes that the national court is to determine if and to what extent the company rules comply with these requirements in practice.

Comment

This ruling is interesting from many points of view.

First of all, the considerable weight given to a company’s desire to promote a neutral appearance seems somewhat curious. It appears to contradict the ECtHR judgment in the case of Eweida and Others v. the United Kingdom where the Strasbourg Court ruled that there had been a violation of the right to freedom of religion or belief when Ms Eweida was not permitted to wear a crucifix at work. The ECtHR in Eweida considered that on one side was Ms Eweida’s desire to manifest her religious belief and on the other was the employer’s wish to project a certain corporate image, and that a fair balance had not been struck. Although the human rights court recognized that the employer’s wish to project a certain corporate image could be regarded as a legitimate aim, it found that the national court accorded it too much weight.

It could be argued that in contrast to Eweida, the ruling of CJEU provides more space for employers to ban the wearing of religious symbols in the workspace without violating the fundamental right to freedom of religion or belief. The ruling could be understood as confirming that the mere wish of a company to present itself in a neutral way is an objective justification for a different treatment of employees .

Second, it is remarkable that the CJEU extensively studies whether the objective is legitimate and the requirement is proportionate but at the same time fails to examine the proper balance between the desire of the employee to manifest her religious belief and the employer’s wish of a neutral workplace environment. On this issue Advocate General Kokott delivered the following opinion in para 127

it is for the referring court to strike a fair balance between the conflicting interests, taking into account all the relevant circumstances of the case, in particular the size and conspicuousness of the religious symbol, the nature of the employee’s activity and the context in which she must perform her activity, as well as the national identity of Belgium“.

The question is whether the omission of the CJEU to examine the said fair balance provides enough guidance to enable national judges to determine whether a company ban on wearing visible religious, political or philosophical symbols, can be regarded as indirect discrimination. Or does it simply push this hot potato onto the plate of the national judges?

Third, it seems curious that in its assessment on whether or not the company’s internal rules can be considered a legitimate aim, the court primarily (maybe even solely?) focuses on the fundamental right of freedom to conduct a business (Article 16 CFR). Why, for example, idoes it not mention the right to work in Article 31(1): Every worker has the right to working conditions which respect his or her … dignity?. It seems that the reasoning of the Grand Chamber, and the way in which it weighs the various relevant elements, remains implicit at best – but perhaps is simply incomplete. This is problematic in such an important case.

In Bougnaoui, the core of the preliminary question was whether Article 4 (2) of Directive 2000/78 must be interpreted as meaning that the preference of a customer to receive services from a company employee who does not wear an Islamic headscarf can be considered a genuine and determining occupational requirement.

The ruling of the CJEU on this question is clear. It concluded that in the absence of any company rule, the mere desire of an employer to take into account the wishes of a customer to ban religious symbols is direct discrimination. Such a ban cannot be regarded as a genuine and determining occupational requirement within the meaning of the Framework Directive.

Various NGO’s have already claimed that the ruling of the CJEU legitimizes discrimination, in particular towards Muslim women. As for now it will depend on the national courts and law-makers to set out the conditions under which an internal company rule can ban religious clothing from the workplace.

Monique Steijns

Monique works within the Dutch Ministry of the Interior as an adviser on constitutional law and human rights. Monique studied law at the University of Amsterdam. She is part of the Netherlands Committee of Jurists for Human Rights and chairperson of the working group Constitutional and Administrative law.

Monique contributes in a personal capacity; the opinions expressed cannot in any way be attributed to the Dutch government.

The week that was

The biggest news of the week was the Budget: the biggest news about the budget should have been that Brexit was not mentioned once. Headlines were dominated by the increase of high earning self-employed persons, overlooking another potentially important change lurking in the red box – the introduction of UK VAT on roaming telecoms services outside the EU – making it 20% more expensive to use a UK mobile in non-EU countries, or those that the UK seeks to do business with after Brexit. In other financial news, in Cornwall, where the majority voted to leave the EU and also relinquish £60m of annual funding from the EU, the Government has agreed to provide £18m to prop up the county’s weak economy.

Parliament this week warned of the consequences that might arise if the UK were unable to negotiate a Withdrawal Agreement  – the House of Common’s Foreign Affairs Committee advised the government to start preparing for the “real” possibility that it will leave the European Union without a deal. Worrying words also from Mars for chocolate lovers – a top Mars executive says that if the UK leaves the EU without a trade deal it will endanger jobs and raise prices. If the UK falls back onto World Trade Organisation rules, prices could be subject to trade tariffs of 30% in confectionery, 20% for animal products, over 15% for cereals and more than 10% for fish and fruit.

New personnel were sent to Brussels: the UK Permanent Representation to the European Union announced two new senior appointments. Katrina Williams has been appointed to the post of UK Deputy Permanent Representative and Simon Case will be the new Director General for the UK-EU partnership – he will work with Sir Tim Barrow, the UK Permanent Representative to lead the work on Brexit. Let’s hope he gets on well with Donald Tusk who, much to the anger of his compatriots, has been re-confirmed as President of the European Council for a further 2.5 years. If the two year timetable is held, he will therefore lead the EU-27 Heads of State and Government through Brexit.

Finally, daring to dream into the future, Commission President Juncker, shared his hope that the UK will one day rejoin the EU. Back to the present and he has been contacted by European Ombudswoman Emily O’Reilly, who has raised concerns about transparency and public access to documents. She has received complaints about the response to requests for public access to documents connected to the UK referendum and the negotiations.  Juncker has been asked to provide details of how ‘the Commission intends dealing with the transparency of the upcoming negotiations, bearing in mind citizens’ rights.’

This week begins with Dutch voters heading to the voting booths in a national election that may see this liberal country lurch to the right; the Prime Ministers prepares to trigger Article 50; academics at Oxford, fearing a huge loss of staff and skills, urge the Prime Minister to protect the residency rights of EU workers in the UK; and Angela Merkel prepares to meet Donald Trump, with aims apparently to sway rather that persuade him on climate change. One wonders whether she may also charm Steve Bannon, Trump’s right-hand, right-wing man in the West Wing, whose anti-EU worldview is keep many in Brussels awake at night.

From the CJEU:

C-342/15 Piringer : Freedom to provide services: Member States may reserve to notaries the power to authenticate signatures appended to the documents necessary for the creation or transfer of rights to real property

C-398/15 Manni : Approximation of laws-  there is no right to be forgotten in respect of personal data in the companies register

C-615/15 P Samsung SDI and Others v Commission Competition – The Court upholds the fines imposed on Samsung SDI and Samsung SDI (Malaysia) for their participation in the cartel on the market for tubes for television sets and for computer monitors

 C-484/15,C-551/15 Zulfikarpašić : Area of Freedom, Security and Justice – Notaries in Croatia, acting in enforcement proceedings on the basis of an ‘authentic document’, cannot be deemed to be ‘courts’ either within the meaning of the Regulation on the European Enforcement Order or for the purposes of the application of the Regulation on the recognition and enforcement of judgments in civil and commercial matters

News round-up

This week, John Major’s reality check on Brexit annoyed the Tories, but not as much as the House of Lords. In the biggest upset of her plans to date, Teresa May has had to face the defeat of her Bill in the House of Lords, where peers overwhelmingly supported a Labour amendment to secure the rights of the 3.6 million EU citizens living in the UK. Losing a vote during the committee stage in the House of Lords means the Brexit bill will enter a so-called ping pong between the Houses of Commons and Lords, potentially delaying its passage into law. Applications for permanent residency have risen, as has the cost and difficulty in gaining this. Home Secretary Amber Rudd confirms that the current right to travel and work in different EU countries will not remain when Britain leaves the EU and March 15 has been mentioned as a cut-off date for full rights of residence. Rudd this week also authorized the use of stronger tasers by the police.

The confident words emanating from Downing Street that concessions would not be made may be tempered by the news that peers also plan to reject May’s threat to walk away if EU leaders offer only a ‘bad deal”, leaving Britain out of the EU and dependent for its international trade relations on World Trade Organisation (WTO) rules. Gina Miller has also warned of further legal proceedings if Parliament is not guaranteed a meaningful vote on leaving the EU. The question remains as to whether rejecting a deal is the prerogative of the UK – Art 50 (3) TEU does not preclude the EU from walking away from the table. It is indeed questionable whether there is a choice – Art 50 says nothing about whether either party can continue negotiations after two years in the absence of formal unanimous agreement for an extension of talks.

Another week, another Le Pen scandal: MEPs voted to remove parliamentary immunity from Marine Le Pen, leaving her open to prosecution. The EP has also thrown the gauntlet down to the USA – in response to US travel restrictions on five EU member states, MEPs encouraged the Commission to impose visa restrictions on travellers from the USA visiting the EU. Continue reading