I'm Camino Mortera, and I think and write on the EU, internal security, migration, counter-terrorism, Sundays in Berlin, yellow skirts and blue skies. In English, Spanish and (sometimes), French
Free movement and UK politics (conference at the Liberal Forum, London)
I am honoured to have been invited to speak at this forum. I would also like to welcome the organiser’s initiative of adding inverted commas to the word ‘migration’ in the title of this event. As a Spaniard who has lived pretty much everywhere in Europe, I have never felt like a ‘migrant’ myself. I was, so the Treaties go, a European citizen exercising my right of free movement. Then, I moved to London and started working on the Four Freedoms from the other side of the Channel. And everything changed. You see, in Brussels, where I was working before, everybody feels, to some extent ‘European’. Nobody is a migrant. And yet, everybody is.
The question of EU ‘migration’ has only recently entered the British political debate. And it is nothing more than the logic consequence of the rising popularity of UKIP. What better scapegoat for an anti-Europe, anti-migrant party than, you guessed it, European ‘migrants’? Things got a bit more serious when the Tory party realised the potential of the issue and started capitalising on it for its own political return. As you all very well know, on November 28th, David Cameron delivered his much-awaited speech on migration. By that time, I had been working in London for just over a month, and was astonished (and slightly amused) by the whole debate. I watched the speech from my desk, ‘booing’ and ‘cheering’ as the Prime Minister went on, shouting names of Directives and Regulations. My colleagues later said it was like witnessing someone following a very strange football match. What follows is my impression of my very first British political football match, what I like to call, David Cameron vs. EU Law.
Broadly speaking, the PM’s proposal on EU migration can be divided into three groups: those which would require Treaty change, and are, hence, quite unlikely; those which would need minor changes of legislation, and could, therefore be achievable; and those which are already in place and, which are, in consequence, unnecessary.
The first group of measures (those requiring treaty change) include the most ambitious and publicised of Cameron’s proposals: limiting the access of EU citizens to in-work benefits. Article 45 of the Lisbon Treaty forbids discrimination against workers “as regards employment, remuneration and other conditions of work and employment”. Directives and regulations grant equality of treatment with regard to social assistance and tax advantages. At the very least, restricting the access to in-work benefits for a working EU citizen would amount to salary discrimination. It would be difficult for government lawyers to justify to the ever-watching European Commission why, on the basis of a minimum wage, someone called Davide, or Jean-Pierre or Carmen would earn less than someone called David, John or Caroline.
Now, both Brussels and Westminster know that the issue of in-work benefits is very much related to the UK’s special approach to social assistance: most continental member-states work on the basis of contributory systems, by which benefits are only paid to those citizens who have previously worked and paid their taxes, regardless of their nationality. The system in the UK, designed to encourage people to work, is rather unique in being non-contributory. But this, Brussels and other European partners may argue, it is none of the EU’s business. The UK, with its special system, signed and agreed to the free movement legislation in place. Even more, the UK has traditionally been one of the keenest supporters of enlargement and the single market.
Some legal commentators would argue that Cameron’s proposal of stopping child benefits being paid to children abroad could also require treaty change. I must confess I am very unsure about the legal and political feasibility of achieving this reform. The Prime Minister (and a large part of the British public) has expressed his outrage at the fact that child benefits are being paid to parents whose children do not even live in the UK. Child benefit could then become an income source for some families, which is in principle not the purpose of social assistance. Family benefits in the EU are governed by a 2004 regulation which states that they should be paid by the member-state where the working parents live. They are entirely based on a contributory logic by which the country where you pay taxes should be the one responsible for ‘giving these taxes back to you’ in the form of child benefit, regardless of where your children actually live. Then again, this logic may collide with the UK’s approach to benefits. And many other member-states would agree that child benefits should not be used as a source of income. But the CJEU, and the European Commission, would surely argue that precluding the access to child benefits to EU workers would equal to discrimination, be contrary to the treaties, and hence require treaty change.
The second group of proposals are those which would need minor changes of secondary legislation. Amongst them, restrictions to EU job-seekers: Cameron vowed to deport EU migrants who failed to find a job within six months of entering the country. Under EU law, EU citizens need to be working, studying or self-sufficient in order to reside legally in another member-state. Job-seekers are therefore not included in this definition, although the ECJ has conferred some free movement rights to them. Some restrictions on EU job-seekers could be allowed by EU law and even find some support amongst other member-states.
Finally, David Cameron suggested that the UK will aim at imposing temporary restrictions on workers coming from new member-states (similar to those applied to Romanian and Bulgarian citizens until January 2014). Similarly, he vowed for enforcing expulsion and re-entry bans on EU criminals, beggars and fraudsters. None of these measures should require any treaty or legislative change, since they are already allowed by EU law. Accession treaties should be approved by unanimity in the Council, which means that member-states can impose some conditions, as proved by the accession treaties of Romania and Bulgaria. The so-called ‘citizens directive’ already allows EU countries to expel EU citizens for reasons of public policy or public security, although the CJEU requests a case-by-case analysis, forbidding indiscriminate expulsions. The UK has recently ‘re-join’ 35 key measures in the domain of Justice and Home Affairs (including the vital Schengen Information System and ECRIS, the European system for exchanging criminal convictions), which should allow British authorities to have better controls over those EU citizens who may represent a threat to the UK’s public security.
It is a Brussels universal truth that decisions in the EU are taken by consensus: compromises are necessary in order to obtain concessions, whether in current or future negotiations. There is little political appetite in Brussels for changing the treaties. But no member-state is interested on a Brexit, and I am positive the diplomatic machinery in Brussels will be hard at work to prevent the UK from leaving the EU. But other European partners are getting increasingly weary of the UK’s ‘pick and choose’ approach to the European Union. If the Tories win the elections and they seek to renegotiate the British position within the EU, David Cameron and his partners need to be aware of the impact of some of their demands. They should also be prepared to back their claims with facts. As of now, many EU actors (and the CER) are struggling to understand why does free movement pose such an unsurmountable problem for the UK, when all the evidence points to the fact that Britain’s public purse benefits from EU migration. The UK, like any other member-state, needs to choose its battles. And freedom of movement is a red line for many in the EU