In its recent ruling in Egenberger (C-414/16), the Court’s Grand Chamber has redrawn the boundaries of a constitutional problem German courts are rather familiar with: the horizontal application of the right not to be discriminated against in situations coming within the scope of EU law. The case raises two important constitutional issues: firstly, whether the horizontal effect of EU fundamental rights must be direct; and, secondly, how the balance between conflicting fundamental rights should be reached in a private dispute. This post argues that, on the one hand, in Egenberger,the Court offers a methodologically more principled account of the horizontal effect of fundamental rights than its case law has provided to date. On the other hand, its approach towards the balance between religious freedom and non-discrimination is problematic because it does not offer the degree of clarity and guidance that is needed to accommodate horizontal conflicts of rights under the Charter framework. Continue reading →
Economic activity has been the Holy Grail of free movement of persons since the start of the European integration project. In case of unemployment, through article 7(3)(b) of Directive 2004/38 mobile EU citizens keep their status as ‘worker’ if they have worked for more than a year in their host Member State and thereby earn a continued right to reside and access to social benefits. However, does this provision also apply to mobile Union citizens who have been self-employed? In contrast to the Irish Department of Social Welfare, the Court of Justice of the European Union answered this question positively in the Gusa-case of 20 December 2017: EU law also protects the self-employed when they cease work due to circumstances beyond their control. Although this outcome is perhaps not so spectacular in terms of legal reasoning, it might help strengthen the rights of a significant number of self-employed EU citizens in the run-up to the ‘Great Divorce’ following the Brexit-vote. The case was also spiced up in advance by a controversial interpretation of the right to permanent residence by the Advocate-General. Continue reading →
Today on 17 November 2017 the European Parliament, the Council and the European Commission will proclaim the European Pillar of Social Rights (EPSR). Accused of going much too far by some and for falling disappointingly short by others the EPSR has caused a stir. This turmoil, however, has mainly been political, and the EPSR has received comparatively little attention from EU lawyers. Probably duly so because the EPSR, despite its political salience, is a soft law instrument without legally binding force and such instruments are rarely noticed.
Here, however, I argue that while its overall impact on the EU acquis in all likeliness will be underwhelming, the EPSR nevertheless deserves a closer look, especially when the context of the initiative and the CJEU’s case law on similar soft law measures are considered. A closer look also allows one to find at least some hope concerning its enforceability. The future of the EPSR depends largely on how it will be treated by the stakeholders, and here the judicial arenas should be activated if there is no meaningful enforcement actions following from the EU political actors and the member states. Continue reading →
La détermination du for compétent en vertu des règles européennes de droit international privé semble toujours poser, dans le cadre des relations de travail, quelques difficultés aux juges nationaux, à tout le moins lorsque les prestations sont accomplies sur le territoire de plusieurs États membres. L’affaire dite RYANAIR, du nom de la célèbre compagnie aérienne à bas coût, en est l’illustration. C’était l’occasion pour la Cour de Justice, saisie sur question préjudicielle, d’appliquer et de préciser sa jurisprudence quant à l’interprétation du lieu habituel d’exécution du contrat de travail, jurisprudence désormais intégrée aux règlements européens ad hoc. Continue reading →
Of course, it wasn’t all about immigration. But that claimed flood of Eastern Europeans was certainly at the heart of the leave campaign, and, unusually for an immigration debate, it was their right to work in the UK that was the political issue: there were too many of them, they were pushing down wages, they were keeping the low-skilled native out of work, they were costing the government a fortune in in-work benefits, they were making towns and villages unrecognisable and alienating the more established inhabitants.
Whether or not they were true, a lot of these claims seemed to be shared by both sides. Cameron didn’t so much deny them, as offer counter-claims (but they do add to the economy) and promises of change (if you vote remain, we’ll have a new deal and be able to do something about it!).
So the question is this: if the government thought that free movement of workers was causing such terrible problems, why didn’t it impose restrictions years ago when the post-Enlargement flood was at its high point and the issue first became prominent? Continue reading →
The British referendum on the country’s continued membership of the EU has dominated the political and media landscape both in the UK and abroad for the last few months. There has been a plethora of academic commentary on the possible consequences of a British exit (‘Brexit’). On 23 June, based on a turnout of 72%, 52% of the electorate voted for Leave, while 48% supported Remain. This narrow majority disguises dramatic differences between different regions: Scotland, Northern Ireland and large parts of London voted to Remain whereas substantial sections of Wales and most of England voted to Leave.
In the run-up to referendum day, workers’ rights were invoked repeatedly by both sides of the campaign as either a reason to back or oppose Brexit. Leave campaigners, such as Patrick Minford, Professor of Economics at Cardiff Business School, argued that the UK needed to reset its relationship with the EU to ‘jettison excessive protection and over-regulation, notably in the labour market’. Domestic employment laws originating from the EU legislature, such as the much vilified Working Time Directive, have often been described as a burden on business, inflexible, uncompetitive and inefficient. On the other hand, Remain campaigners such as Frances O’Grady, General Secretary of the British Trades Union Congress (TUC), warned repeatedly that ‘working people have a huge stake in the referendum because workers’ rights are on the line’ and the link between the UK’s membership of the EU and better protection of workers’ rights featured heavily in campaign material opposing Brexit. Continue reading →
Following its strict findings in the Dano and Alimovic judgments, the Court of Justice of the European Union could not but state the obvious in case C-299/14 (García-Nieto and others): Member States may exclude economically inactive EU citizens from social assistance who are residing in the host Member State for a period shorter than three months. Again, the Court opts for legal certainty in rigorous and explicit terms and emphasises the objective of preventing the foreign EU citizen from becoming an unreasonable burden on the host Member State’s social assistance system. However, just like with Dano and Alimanovic, this comes with a human cost. This time the Court neglected the possibility to give a more substantial meaning to the unity of the family, allowing discrimination towards the migrant worker. Continue reading →
Hector Salamanca was vulnerable. The Mexican was old and, after having suffered a stroke, tied to the wheel chair. He had no means of communication save a tiny bell he barely managed to ring. After most of his family was dead, he lived the life of a lonesome vegetable in a nursing home.
Donald Gately is vulnerable. His sense of honour and duty as a staffer at Enfield House Drug and Alcohol Recovery House had practically compelled him to defend a drug addict who had got involved in a fight. In the fight, Don G. was shot in the shoulder. Now, he is tied to the hospital bed, suffering from inhuman pain, pain from which only opioids could bring relief – though not for him, for opioids had been the focus of his long history of substance abuse and now he is desperately abstinent.
Protecting Vulnerable Groups is a great book. It made me see all of the above (and more) in a new light. To be sure, Protecting Vulnerable Groups is not a book about Breaking Bad or Infinite Jest. It is not an economic, sociological, or socialist book either, despite the appearance the title creates. No, Protecting Vulnerable Groups is a rock solid book on the law, in particular case law. It explains how the European Court of Human Rights and the European Court of Justice attend to the vulnerable. Sometimes, the courts explicitly find persons vulnerable, as in MSS v Belgium and Greece when an asylum-seeker was declared “particularly vulnerable” (Protecting Vulnerable Groups, p. 249); sometimes the idea of vulnerability is merely inherent in the courts’ case law. Both occurrences are discussed extensively in the book. Continue reading →
As is becoming a tradition with our blog (albeit a bit late this year), we present to you our top 10 most read posts of the last year. We have had another good year of blogging behind us: more readers contributing to the content of the blog with 33 posters coming from approximately 14 different countries this year. Equally important is that readership is steadily increasing according to Google Analytics (plus: we now have almost 1600 email subscribers and 2400 followers on twitter). Most of you are from the UK, followed by the Netherlands, Belgium, Germany, the United States, Italy, Sweden, France, Ireland and Poland, respectively.
Keeping in mind that there is a certain bias in favour of older posts which have had more time to become popular, this is the 2015 list of most read posts of the year: Continue reading →
In November 2014 the Dano judgment attracted unusual public attention, not least because of its importance for UK Prime-Minister David Cameron’s campaign against the phenomenon of ‘welfare tourism’. Although political and administrative attention has been redirected towards the mounting refugee crisis, scholars, administrators and some politicians have been eagerly awaiting the CJEU’s Alimanovic judgment in the sensitive field of EU citizens’ right to equal treatment as regards access to national welfare benefits. Dano made clear that Member States may reject claims to social assistance by EU citizens who have no intention to work and cannot support themselves. Alimanovic gave the Court the opportunity to clarify the application of this principle in the more complicated factual situation of an EU citizen who applies for social benefits after having worked for 11 months. In its bid to contribute to ‘legal certainty’ and ‘transparency’, Member States will for sure welcome the Court’s judgment, but the legacy of Brey still complicates the desired carte blanche for national authorities to refuse any claim to social assistance by indigent EU citizens. Continue reading →
“Viking, Laval and Beyond”, edited by Mark Freedland and Jeremias Prassl, constitutes the first volume of Hart’s new series on “EU Law in the Member States”. In the series’ foreword Sacha Prechal lays out how crucial it is to understand the “genuine life of EU law in the Member States” since EU law – of course – is generally transposed, applied and enforced at the domestic level. But that is easier said than done. One needs good knowledge of EU law, domestic and comparative (EU) law to come close to some understanding of what Prechal calls EU law’s genuine life. And, let’s be honest, it is often hard enough to keep up with the current developments in EU law while not losing touch with domestic legal issues. Continue reading →
According to 2012 OECD data, 52% of EU adults are overweight or obese. It is thus not surprising that the recent decision of the Court of Justice of the European Union (CJEU) in Kaltoft (Case C-354/13), on whether obesity discrimination can amount to disability discrimination, has created quite a stir in the press. Following Advocate General (AG) Jääskinen’s Opinion, some media suggested that ‘Severe obesity is a disability’. As will be discussed in this post, the CJEU did not quite go as far as to accept that obesity is a disability, but it did recognise that, in some cases, differential treatment on the basis of obesity can amount to disability discrimination. Hence, this judgment marks another step forward towards clarifying the scope of EU equality law and bringing about a consistent application at national level.
In C-413/13 FNV Kunsten Informatie en Media, the Court decided that competition law does not apply to arrangements among freelance substitute orchestra musicians that aim to improving their working conditions if they can be qualifed as ‘workers’. In so doing, the Court significantly expanded the scope for taking social interests into account within competition law analysis and rejected the more narrow and liberal approach taken by the Dutch National Competition Authority (NCA), the Dutch government and—not surprisingly—the European Commission. This is a significant case, not only because the Court for the first time had to deal with the increasingly more common phenomenon of the ‘false self-employed’ when interpreting competition law, but also because the Court once again demonstrated its willingness to take public interests other than economic efficiency into account when applying competition law (a holistic approach that, I argue, is fundamentally more in line with the EU treaties).
Yesterday, the Court handed down its decision in the much anticipated Association de Médiation Sociale case. The case concerns the question of potential horizontal effect of the workers’ right to information and consultation enshrined in Article 27 of the Charter of Fundamental Rights and implemented through Directive 2002/14 establishing a framework for informing and consulting employees in the Union. We have already covered the opinion handed down by Advocate General Cruz Villalón (see here), who suggested that the Court should allow Article 27 of the Charter in combination with the Directive to be applicable and to exclude thus the application of the national norm that was contrary to EU law despite the setting of proceedings between private parties. In contrast to the Advocate General, the Court did not grant Article 27 and the Directive such effect. Rather, it decided to follow its previous case law, with the unfortunate consequence of leaving quite some questions unanswered. Continue reading →
On July 18th, Advocate General Cruz Villalón delivered a fascinating opinion in a case that could very well keep quite a number of scholars interested in EU fundamental rights law busy for a while. In Association de Médiation Sociale not yet available in English as far as I can see) the Court is confronted with a set of fundamental questions. First, whether the workers’ right to information and consultation within the undertaking as enshrined in Article 27 of the Charter and implemented through Directive 2002/14 establishing a framework for informing and consulting employees in the Union can be applied in a legal dispute between two private parties, i.e. on its potential horizontal effect. Second, this also implies discussing – for the first time explicitly – the difference between rights and principles enshrined in Articles 51 (1) and 52 (5) of the EU Charter of Fundamental Rights. In particular, this requires shedding light on the notion of implementation of principles, as Article 52 (5) speaks of principles being ‘judicially cognisable’ only in the interpretation of their implementing acts and the ruling on their legality. Third, the act with which the Union implemented the principle in the present context is a directive, which again raises the question as to the limits to the effect of directives in a legal dispute between private parties, as has already caused problems in well-known cases like Mangoldand Kücükdeveci. As the opinion is already quite comprehensive, I’ll keep my comments to the minimum to not try our readers’ patience.