Blogging about EU law and politics

The Reform Treaty, the UK and the Referendum Issue

2007-09-02T19:30:00.000+01:00

I've been following with interest some of the press debate about the growing controversy in the UK about whether there should be a referendum as part of the ratification process for the anticipated Reform Treaty. There is almost no nuanced discussion of the Treaty (well draft Treaty) itself, but rather the usual rantings of the antis and the pros in the different camps. In fact, because the UK's approach to the Reform Treaty negotiations has been such as effectively to create a separate treaty for the UK (see the comments by Jim Murphy Europe Minister), that the Treaty has - for very different reasons - attracted almost as much opprobrium on the part of the federalists as it has on the part of the the euro-sceptics. Moreover, the UK Government has also managed to mobilise some sections of the union camp in favour of a referendum, because of its mealy-mouthed approach to the issue of the scope and effects of the Charter of Fundamental Rights. Perhaps it's a vote winner with business in the UK; it certainly seems to have raised the hackles of some of the unions.

It is undoubtedly the case that the format chosen for the Reform Treaty, which will be a treaty amending and - in the case of the EC Treaty - renaming the existing treaties, which produces a result which is remarkably like the Four-Part-Constitutional-Treaty, except this will be Two Treaties and a bunch of Protocols (plus a whole raft of further protocols and declarations which would have been appended to the Constitutional Treaty anyway) is a problem. The big difference, as everyone points out, is that the Reform Treaty is shorn of the constitutional symbols so beloved of Giscard d'Estaing, which gave the Constitutional Treaty some of the veneer of a Big C Constitution, even if it had little of the content one might anticipate for a measure which would change the constitutional nature of the current EU, which is a hybrid mixture of intergovernmentalism and supranationalism. But the problem of the format is that it appears shifty and an attempt to do something by the backdoor, as Michael Bruter comments. Voters can react negatively to that sort of approach on the part of politicians, because they assume that they (the politicians) have something to hide.

I say **almost** no nuanced comment, but I have found a few things which are definitely worth reading and worth linking to; papers by George Schopflin in OpenDemocracy, an editorial in the Financial Times, penned - one suspects - by the peerless Peter Norman, a thorough fisking of what appear to be the arguments put forward by pro-referendum Labour MPs by EULawBlogger; an honest attempt at a Q & A/FAQ by the BBC. And now today a lengthy editorial in the Observer which has attracted a reasonably good set of comments. But there has been little else.

What interests me most is whether there is any sort of intellectually reputable argument in favour of a referendum on the Reform Treaty, based on an underlying claim for democratic legitimation, as seems to be the argument underpinning the regular references to the Reform Treaty (but sadly, no accompanying analysis) from the good folks at Our Kingdom. Unaccountably, however, they leaven their posts with regular references to leaders and articles in the Daily Telegraphy, a newspaper which is certainly **not** well disposed to the EU generally, and for whom the Reform Treaty represents, as it does for Cameron, another stick to beat the Labour Party and Gordon Brown over the head with. A progressive democrat would need to find some references points for his or her argument other than the Daily Telegraph for me to begin to be convinced that there exists some sort of foundational democratic argument for a referendum on a Treaty which will not affect the way we are governed anywhere near as much as the Single European Act and the Treaty of Maastricht.

Scotland and the euro

2007-08-22T16:45:00.001+01:00

No time to post today - frantic at work. But my esteemed friend RoadRunnerReturns, a fellow blogger on "The Original BondBloke" has exercised **his** substantial expertise in matters of EU politics and there I can bring you, courtesy of him, important insights as to what Scotland's status would be vis-a-vis the euro, in the event of independence. Read more here.

Learco Chindamo - uses and abuses of EU law

2007-08-21T17:47:00.001+01:00

I've already posted about the Learco Chindamo case on my other "regular" blog, but I am grateful for EULawBlog (I think that's all one word) for drawing my attention to a risibly confused press release on the topic by Open Europe, which really does show up this organisation up to be incapable of any sensible comment on the topic of the effects of EU laws and legislation. And to think they hold themselves out as somehow experts on the matter... Openness requires accuracy to be effective, I'm afraid.

Learco Chindamo (an Italian national and therefore EU citizen) is the man who murdered the Head Teacher Philip Lawrence, and who has been serving a life sentence (which was originally going to be indefinite, I think, until the ECtHR stepped in relation to the cases of the killers of Jamie Bulger). Anyway, his tariff is set at a minimum of 12 years, which means he can be considered for release in 2008 - provided he is not a danger to the public. If he is not a danger to the public, then there is no way that **EU single market law** (note, Open Europe, single market not justice and home affairs) law would allow him to be deported, given his circumstances. Came to UK when only 6; only effective family and life in the UK; probably doesn't speak Italian; etc. etc. That much is abundantly clear from the citizens' rights directive, which I excerpted on the other blog.

Quite how Open Europe think that this has anything to do with harmonisation in the field of justice and home affairs (which, I would agree with them, is politically tendentious) is beyond me. Open Europe claims to embrace economic liberalisation. That means the single market. The single market for persons, as opposed to goods, services and capital, has always, inevitably, meant more than just treating people as economic commodities. That was recognised in the foundational free movement of workers legislation in the 1960s, in relation to matters such as coordination of social security rights, and - yes - the deportation of those deemed undesirable for whatever reason. It is interesting that the very first reference to the Court of Justice from a UK court was in relation to a deportation question - the case of Van Duyn. The precise point there was about the consideration of cases involving what we now call "EU citizens", i.e. the nationals of a Member State, on an individual basis, judging what threat they might individually pose to public security. With the citizens' rights directive, the law has moved on somewhat, but the point remains essentially the same. At least the courts appear to have understood the relevance and correct application of EU law (whatever you think about its political content), even if the politicians and the executive, to judge by the Home Office reaction, and a so-called "leading" thinktank have not.

The Menber States: responsible "masters" of the treaty?

2007-06-22T09:40:00.000+01:00

This is what happens if you leave the Member States in charge of the Treaty. Or at least, that would be what a so-called "friends of the Treaty" might say. The apparent removal of a reference to "free and undistorted competition" in the list of the Union's objectives. We'll have to see what this French-inspired move means in terms of concrete textual change in due course, and it will be a very long time before we know what its legal effects, if any, might be. But the incident shows the danger of making piecemeal changes to the text of the original treaties (because after all we are now talking about a reforming and amending treaty, not a replacement treaty) in order to appease national sensibilities. With 27 Member States, there could be no end to it. Why not remove Articles 81 and 82 at the same time, and be done with it...if it keeps the French on board...?

A very good resource

2007-03-22T23:19:00.000Z

Somebody, cannot remember who, drew my attention recently to the Economist's excellent euro-blog, which has had some excellent snippets recently. That in turn has drawn my attention to the fact that the Economist has put online a series of its articles from key moments in the history of European integration, dating right back to the 1950s. Now that really is helpful.

The Declaration of Berlin

2007-03-22T20:54:00.000Z

The absence of posts here should not be taken as a waning of interest in things European, or indeed in blogging. There has been light activity over at the other place, recently, and a spate of travelling in the next few weeks may increase the posting quotient on both blogs. Funnily enough I find it easier to post when I am away from home (most people seem to say the opposite and issue apologies for light posting on their blogs because they are away). It is probably a reflection on the fact that most of my travelling is for work, and much of it is done alone, without the other half. Obviously it is dependent upon finding internet connections for the laptop (am currently in Goodenough Club in London - the most civilised place to stay in London - with such a connection, for a conference tomorrow and Saturday), but this is increasingly easy these days in hotels (although it is sometimes quite expensive).

Anyway, to return to things European (this isn't supposed to be a personal blog...), I was interested to read Nosemonkey's take today on the attempts by the Czech Republic to undermine the mood music which Chancellor Merkel would like to surround the celebrations of the 50th Anniversary of the Treaty of Rome this coming weekend in Berlin. Who knows what politics the Czechs are playing. But it is doubtless something to do with manoeuvring for position with regard to the more important question of negotiating amendments to the current treaties to incorporate some of the institutional reforms included in the ill-fated Constitutional Treaty. It is also probably something to do with the complex internal politics of Central Europe, and a desire to make the German Government seem authoritarian in its secretive approach. After all, given that the Poles have apparently agreed to sign up to the Declaration, the question arises as to what precisely the Czechs are trying to achieve. Anyway, I feel I should correct a slight misnomer in the reporting of the approach which Merkel appears to be taking. It was always clear that unless agreement could be reached on the part of all 27 Member States, a distinctly suboptimal position, but a position none the less that could be taken, was that any Declaration could be signed by the heads of the three institutions - the Commission, the European Parliament and the Council of Ministers/European Council. This was the approach taken to the promulgation of the Charter of Fundamental Rights in 2000, after it had been drafted by a Convention in which some of the most influential members were the representatives of the national governments. In fact, the Charter Convention was the first time that Peter Goldsmith, as UK Government representative, crossed my radar screen. And jolly influential he was too, as this pdf shows. There is nothing institutionally wrong with the three presidents of the institutions signing a declaration, since it is clear that there is a distinction between the Council President signing qua President, and the Member States formally committing themselves severally to a document (such as a Treaty). However, it strikes me that the greater problem with this suboptimal solution to the problem of trying to get something declaratory which summarises the past and promises more honey for tea in the future formally approved is not that it looks like Germany ordering the others around, but rather that it will be seen as unacceptably partisan, because Merkel, Poettering and Barroso all belong to the Christian Democrat European People's Party. Now that really is a problem.

Jean Marie Le Pen welcomes enlargement

2007-01-11T21:20:00.000Z

My goodness me. Wikipedians move fast. There is already a Wikipedia entry for Identity, Tradition and Sovereignty, the new far-right grouping in the European Parliament, whose construction was enabled by the accession of Romania and Bulgaria. And they don't appear to have even sorted out their own website yet. It was the Romanians, really, who made the difference, bringing numbers to the party (five members). They belong to the odious and anti-semitic Greater Romania Party (the name says it all). With these five, and one from Bulgaria (described by EU Observer as someone 'who caused a ruckus in the parliament last year when he circulated a derogatory email about Roma people') the new group have just made it over the threshold of 20 MEPs, with representatives from seven states. The main beneficiaries of the change are the seven French members of the Front National who can avoid for the first time since 1994 sitting in the wilderness of the non-aligned benches where none of the support which flows from being a European Parliament group flows to them. Hence my headline - Le Pen, the arch nationalist, has all the more reason to welcome the accession of these two new members, as the French newspaper Liberation points out. What an irony. Apart from. The other four states contributing members of this group are Austria (kicked out of the Freedom Party for being too extreme), Italy (including the granddaughter of Mussolini), the Belgian Flemist nationalists Vlaams Belang and ... wait for it ... a former member of UKIP, sitting in the European Parliament because he was elected under the UKIP banner, Ashley Mole. It is fair to say, of course, that he is no longer a member of UKIP, but really....that's not the point. It was UKIP, under the UK list system, which got him elected.

It seems reasonable to suggest that the new party group will not necessarily be a happy place to be. There are intense contradictions inherent in cooperating in a cross-national group if your political position is in essence nationalist and sovereigntist. Although the rewards of being out of the wilderness of non-alignment are great, it is not inconceivable that the party group will collapse under the weight of its contradictions. Alternatively, it is possible that it may grow and attract further members, as a process of continuing realignment of the rightist groups in the European Parliament continues. The League of Polish Families, currently sitting in the Independence Democracy group may be tempted the politics of this new grouping of populist far-rightist politicians. After that, next stop - a European Political Party of the far right operating outside the European Parliament and enjoying funding under the EU rules which support such pan-European groupings. Now such a sharing of sovereignty really would be a challenge to a group of sovereigntist national parties.

The fate of the EU's Constitutional Treaty

2007-01-03T19:10:00.000Z

In lieu of a proper post, here is a link to two papers I have recently written on the fate of the Constitutional Treaty - one for a more legal audience, and another of a more generalist character. They are both PDF files. Rather heavy going, I'm afraid, but I'm stumped for a more lightweight analysis at the present.

Discrimination on grounds of nationality

2006-12-07T14:58:00.000Z

At the risk of being seen as a one-trick pony, I would like to draw your attention to, and briefly discuss, some of the issues raised in this article in the Guardian, which discusses the treatment of Poles as workers in the UK:

More than 200,000 Poles have registered to work in Britain since the EU expanded, and the actual number now working here is thought to be much higher. Many have found that employers try to pay them lower wages than British workers and take advantage of their ignorance of employment laws. Now unions, particularly those that recruit from the catering, security and building trades, are reporting a sudden growth in membership and involvement....It is not hard to see why some Polish workers might be examining the new Polish-language sections of union websites as they compare their payslips to those of British colleagues. Once the exhilaration of earning five times the average wage in Poland has abated, many of them realise that the cost of living here eats up most of their pay packet and the agencies that have found them work take their own handsome slices.

As so often, the comments which follow this Guardian piece on the "Polish question" more generally generate much more heat than light, although my interest was aroused by one commentator "Claude Moreira WELLING UK" who pointed out that contra the assertion of the author, Duncan Campbell, there have been other instances since the second world war when since second world war when a trade union branch consisting entirely of migrant workers has been formed in Britain. He cites the case of the T&G:

A search of T & G archives would have indicated to you that a International Workers Branch was opened in 1971 by this trade union to represent Portuguese, Spanish, Italian and Turkish workers employed in hotels,restaurants and hospitals in London.The first campaign to obtain trade union representation by the IWB took place on that year at Talk of The Town in Leicester Square and The Mount Royal Hotel.

There are probably other cases as well.

However, the issue which particularly aroused my attention was the issue of employers paying Polish workers less than their UK counterparts, which is presumably a case of a perverted form of market forces in operation. Because the situation of Polish workers is somewhat more vulnerable than other UK and EU workers, as they are generally denied a safety net of welfare benefits unless they can satisfy various qualifications (e.g. one year of employment), they will be very vulnerable to the line: "you'll work for this amount of money, and under these conditions, or we'll get rid of you". The way in which the UK opened up its labour markets to EU8 nationals (although obviously more open minded than those who chose to keep their markets closed as they were entitled to do under the Accession Treaties) leant itself to such unscrupulous practices. Obviously solidarity via trades unions is one method (pdf file), but it is worth pointing out that EU law has something to say about these matters and at one level it is astonishing that governments have not thought it appropriate to make this point publicly, given that there does seem to be a clear problem of exploitation. This is that it is clearly discriminatory on grounds of (EU) nationality and thus contrary to Article 39 of the EC Treaty to pay a worker from Poland less than a worker from the host state. Moreover, this obligation binds private employers just as much as it does the Member States and government employers. But whilst I am on the subject of Polish and other EU8 workers, I would question whether or not the transitional system relating to welfare benefits applied to the EU8 workers by the UK is compatible with EU law either. While the Accession Treaty allowed Member States to opt out of giving labour market access for a particular period, it did not create any "trade-off" system where a Member State which gave labour market access could trade this against limited access to work-related welfare benefits. Thus it seems to me that an EU citizen from an EU8 state, who is lawfully resident in another Member State must be able to rely upon a line of case law in the Court of Justice which protects at least some of the welfare entitlements of those citizens, as citizens. The question is: will anyone ever challenge the UK transitional arrangements for EU8 citizens?

Swedes in Schadenfreude Moment

2006-10-13T15:37:00.000+01:00

Ooh, I like this, and it has led me to writing a post when I really shouldn't be doing.

According to Eur-activ,

Cecilia Malmström, the MEP who organised a petition to relocate the European Parliament permanently to Brussels, has been appointed European affairs minister in the new Swedish government.

This is known as the One Seat campaign. I signed it myself. Indeed.

Malmström collected one million signatures to end the monthly plenary sessions in Strasbourg. Upon handing in the petition she said that she hoped the matter would soon be dealt with as part of discussions on the EU's future institutional arrangements. The action was premised on the so-called ‘citizens initiative’, a provision on participatory democracy that was part of the proposed EU Constiutional Treaty. She and her supporters argued that the dispersion of Parliament's activities between three working places - Brussels for the daily Parliamentary work, Luxembourg for administration and Strasbourg for the plenary sessions - "has a negative impact on time and cost-effectiveness and the overall image of the European Union".

Now, Malmström's elevation looks like a, what's it called... Schadenfreude moment for the Swedes, because she got into lots of trouble with the current President of the European Parliament, Josep Borrell, over the campaign. He suggested, perhaps a little unwisely,

'some Nordic country' did not suffer enough during World War II to understand the true meaning of the parliament's Strasbourg seat.

Whoops. He got into lots of trouble with other Nordic countries, notably Finland. But it did seem a bit of an undiplomatic thing to say.

Anyway, it seems to me such a shame that there won't be a Swedish Presidency during her likely tenure to bring her into direct contact with the European Parliament. The next Swedish Presidency is due in the latter half of 2009. That's a long time in politics.

Things to do on this blog

2006-10-08T14:21:00.000+01:00

Note to self. Things to do on this blog. After all, there's been quite a lot of interesting stuff happening in the world of EU law and politics since I rather ran out of steam in the summer. Some interesting recent cases, such as Cadman on whether employers can pay long serving employees more just because they are longserving, and the judgments in the two cases about voting for the European Parliament, the ones where I had previously blogged a note about the (much more interesting) Advocate General's Opinion. The Azores case, in which the Court of Justice appears to have restricted (in the name of the state aid rules) the fiscal flexibility of states operating in favour of regions, a case which might have considerable long term consequences for Scotland. Another interesting case brought by the Commission against Ireland, in which the Court has concluded that Ireland cannot take its disputes relating to Sellafield, so far as they fall within the scope of Community and Euratom law, to the International Tribunal on the Law of the Sea, but must deal with them within the framework of the EU. Some older case law which I think it might be helpful for me to have a think about, because I still find it really puzzling, such as the Mangold case. The whole business of the now anticipated accession of Romania and Bulgaria (ably summarised here), and what that will mean for the free movement of labour. On that score, I'd like to have a rant about a story told to me about a friend, who is having trouble bringing the Romanian member of her research team to the UK to work on an EU-funded project, because apparently he has been selected for enhanced visa-scrutiny by the UK bureaucrats, literally 3 months before Romania becomes a member of the EU and thus all visas are automatically ruled out...

Further note to self. Find time to do at least some of these things properly, even if you can't manage them all...

Hurrah for the House of Lords select committee

2006-07-20T17:55:00.000+01:00

I break my silence to bring you news of great excitement.

EU studies afficionados, lawyers and political scientists alike, will long have been familiar with the often splendid and well researched reports of House of Lords Select Committee on the European Union. Indeed, it is much more effective organ, although in fairness it has a different remit, than its House of Commons equivalent, the European Scrutiny Committee. This week, proving again the ongoing usefulness of what a peer of my acquaintance insists on calling the "Old Folks Home" (or at least part of it), the HL Committee has engaged in trenchant criticism of the secretive meetings of the Justice and Home Affairs ministers of the big Member States, who meet regularly to plot the future of Justice and Home Affairs policy in the EU, but do so in complete secrecy and with virtual no press scrutiny (certainly not in the UK). The most recent meeting was at Heiligendamm in Germany, and this is what the report is about. Not only is this complete lack of transparency particularly hypocritical on the part of the ministers because at the same time there is an important initiative towards Council transparency (that is, meeting in public), about which I have written before and in relation to which further developments are charted here. Perpetuating the problem of the JHA Big Six (or G6) meetings being largely unscrutinized by the press, the HL report itself has received remarkably little attention in the press, even though it is very strongly worded. For example:

"Decisions were reached at that meeting which, if taken forward, would involve important changes to current EU thinking and to declared Government policy. The Home Office releases no information about these meetings, which receive minimal publicity. Ministers should report back to Parliament routinely after such meetings."

and

"At a time when the European Council has agreed a new Policy on Transparency, with many of its debates open to the public and broadcast in all Community languages, there is every reason why Parliament and the public should be given the fullest information about a meeting of this potential significance. Ministers returning from Council meetings are expected to report back by written ministerial statement; the same should apply to meetings of the G6. The Home Office should publish the Conclusions of all G6 meetings—in English."

Well done to the House of Lords.

On hiatus

2006-07-18T15:32:00.000+01:00

Dear Readers and happenstance visitors,

Not least because of the routines of the academic year, this blog is rather on hiatus. I might have a yen to post occasionally, but mostly I'm just blogging rather inconsequentially (when do I ever do otherwise) and infrequently, at Bondbloke. I will be back, however, in September, for sure. Watch out for that.

Visa restrictions: US vs. EU

2006-06-20T10:51:00.000+01:00

There is considerable disquiet in many EU Member States - notably the ten post-2004 Member States minus Slovenia, but plus Greece - that their citizens cannot travel on the visa waiver programme to the US (applicable to short tourist or business visits), but US citizens can travel visa-free to all twenty-five EU Member States. Speaking in the market square in Bratislava, capital of Slovakia, last year, George Bush promised progress in this area. However, since it seems likely that concessions might only be forthcoming for Poland, and these are related to Poland's continuing commitment of a certain number of military personnel to the occupation effort in Iraq, it would appear that progress is based on something other than a generalised commitment towards liberalising the movement of persons across the allegedly 'free' world. Now, it is mooted that the EU could engage in 'sanctions' against the EU, exercising muscle on a collective basis. The opportunity to raise this point is the US-EU summit this week. See here, here and here. Relatedly, it has been suggested that similar steps could be taken against Canada to bring about an equalisation of treatment of citizens of Canada in the EU Member States, and citizens of the EU Member States in Canada.

Now quite apart from the effectiveness of such 'sanctions', which apparently might only extend to US diplomatic personnel, who are already subject to visa requirements in a number of Member States including France and which would definitely not include the UK and Ireland, unless they unilaterally opted in, as this is a Schengen matter on which they have an opt-out, it is none the less interesting to see the EU trying, tentitatively, to exercise muscle in relation to the external dimension (i.e. visa relations with a third state) of one of its fastest developing but still very contentious internal policies (justice and home affairs, and specifically here visa policy).

I doubt if it will have any effect this time round, but it is perhaps a sign of things to come in the future.

Polish Migration to Scotland

2006-06-13T13:47:00.000+01:00

Polish migration to Scotland is very, very obvious if you go out on the streets. Or on the buses. Or in the parks. Or you seek to have any form of handiwork done around the house. Here's a quick update on the figures, but the beginnings of a comment about the human effects:

But the Citizens Advice Bureau (CAB) in Scotland said on Monday (12 June) that an increasing numbers of the migrant workers are complaining of low pay, long hours and substandard accommodation.

"Bureaux across Scotland are hearing reports of exploitative employers and employment agencies paying below the national minimum wage and making illegal deductions," said a statement by the CAB.

The bureau also said that workers are living in overcrowded caravans, being expected to sleep two to a bed or on the floor, and facing excessive charges for accommodation and utility costs.

"Workers have told bureaux of being given false expectations or wrong information about their employment prospects while still in their countries of origin," said chief executive Citizens Advice Scotland, Kaliani Lyle

"Once in the UK, however, their options for complaining are few, as losing their job means having to return to their own country unless further work becomes available," she added.

A map of Europe

2006-06-13T08:32:00.000+01:00

Found via Sam. A joy for an EU law and politics blog which needs pepping up. A map of where I've been. There are a few obvious gaps, but at least it means that I have seen a decent cross section of the continent over my four decades plus.

create your personalized map of europe
or check out our Barcelona travel guide

The mechanics of enlargement

2006-05-25T21:52:00.000+01:00

Via this (EU Referendum), I came across this, a letter to the Daily Telegraph letter by a Tory MEP (odious but not unintelligent according to the first source, but I personally couldn't comment) pointing out the possible consequences of the emergence of Montenegro as a sovereign state in Europe, for which membership of the European Union is held out as a possibility under the EU's stabilisation and association process for Southeastern Europe. The correspondent argues:

If countries in the western Balkans, such as Montenegro and Kosovo (also demanding sovereignty), not to mention future possible extension to tiny EEA states such as Iceland and Liechtenstein, join an enlarged EU under the current Nice formula, each with its own commissioner, minimum of six MEPs and disproportionate votes in the Council of Ministers, this will cause a serious political imbalance unfavourable to large member states such as Britain.

Well for starters, much of this is wrong, and it is disappointing for an MEP to show himself so ill-informed about the mechanics of enlargement. After all, although EU Referendum persists in calling it the Toy Parliament, the European Parliament does wield considerable legislative power in the EU, and I would be happier if I felt its members, whether from the UK or elsewhere, were well informed.

The general point about enlargement is that it requires an accession treaty, which itself amends the EC Treaty and must be ratified by all Member States, as well as the acceding state. Every accession treaty has necessitated institutional adjustment, and the more recent ones greater adjustment than ever before (and thus one should not take for granted what the post-enlargement institutional settlement might be), but the interesting point about the Treaty of Nice was the extent to which it pre-empted accession negotiations by means of a pre-determination of what the institutional outcomes of the accession negotiations would be for the 12 states which started accession talks in the late 1990s (with 10 having acceded in 2004). Nice contains some interesting points on institutions which are insufficiently taken into account in much debate. The most important concerns the size of the Commission. Article 4(2) of the Protocol on Enlargement provides that when the number of Member States is 27 (i.e. probably 1 January 2007 assuming Bulgaria and Romania accede as scheduled), Article 213 of the EC Treaty is amended to read:

The number of Members of the Commission shall be less than the number of Member States. The Members of the Commission shall be chosen according to a rotation system based on the principle of equality, the implementing arrangements for which shall be adopted by the Council, acting unanimously.

We are not told how many Commissioners there will be, just that there will be fewer than 27. Perhaps the Council may resolve it should be less than 25, which it is at present. Who knows? But it is worth pointing out that nothing should be taken for granted about the institutions in post-2007 phase of enlargement. In fact, although I have no firm reference for this point, I do recall hearing Jack Straw, as Foreign Secretary, say on the Today Programme in the aftermath of the French and Dutch referendums on the Constitutional Treaty, that the Member States might choose to include most of the Constitutional Treaty's institutional reforms, such as changing the system for calculating a qualified majority, via a future accession treaty (such as the one with Croatia, which is the next one which is likely to be negotiated).

Now the other question which arises, is whether such an accession treaty should be put before the national electorates in the existing Member States for approval (as opposed to the acceding states where accession referendums have become commonplace). If it were put before those electorates, would that be on the basis of the "constitutional" significance of further enlargements (which is presumably what has motivated the amendment to the French constitution to require future accessions after but not including the anticipated Croatian accession to be put to referendum), or on the basis of the "constitutional" signifiance of institutional changes which change the balance of powers either amongst the various institutions, or amongst the Member States so far as they are represented in those institutions.

Transparency in the Council of Ministers

2006-05-24T12:33:00.000+01:00

Bit by bit, piece by piece, the Council of Ministers is opening its deliberations to the public. But goodness me, it's a painful process. The background, up to December 2005, is explained here, in an Information Note prepared by the Council secretariat (Word Doc). In December 2005, in one of the more unexpected outcomes of the UK Presidency, the Council adopted conclusions (pdf file) promising to stretch closer to the limits the existing possibilities of legislating in public, but without changing the existing rules of procedure. I reported on these developments in broadly positive terms for the young federalists' organisation, JEF, in March 2006, although they felt that they did not go far enough and represented a sham rather than true transparency. Now EUObserver again reports an initiative under the Austrian Presidency for further transparency, as part of the draft Conclusions for the June 2006 European Council meeting, which it has seen in advance of their publication.

One of the problems with all the documents about transparency and legislating in public in the Council of Ministers is that they themselves are wholly lacking in transparency. As far as the general public is concerned, if they care at all, the absence of a public legislature within the EU (apart from the European Parliament) is an obvious lacuna, which no amount of fine distinctions between initial discussions, subsequent policy debate and final deliberations and votes can correct. Furthermore, it is equally obvious to those who do manage to penetrate behind opaque language that most of the important discussions will continue to be held behind closed doors (e.g. in the highly sensitive justice and home affairs field which is not yet subject to co-decision between Council and Parliament).

In October 2004, by signing the Constitutional Treaty, the Member States accepted Article I-24(6) CT which provides that:

‘The Council shall meet in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting shall be divided into two parts, dealing respectively with deliberations on Union legislative acts and non-legislative acts.’

Instituting greater transparency in Council decision-making is not illegitimate cherry-picking of the outcomes of the Constitutional Treaty, which undermines national democracy because it runs counter to the rejection of the CT by the French and Dutch voters in 2005. On the contrary, it is a fundamental imperative of legitimate government. Unless citizens can know and understand the public reasons exchanged by Member States in their deliberations, they can never fully understand the acts adopted, whether legislative or non-legislative. Knowing and understanding will not necessarily make citizens more content about what the EU is doing, or more accepting of the supranational level of governance generally, but it will at least mean that there is less scope for the type of ill-informed debate which seems to dominate most media outputs on the EU, its institutions and its policies and politics.

Bulgarian and Romanian Accession

2006-05-16T10:42:00.000+01:00

Over on Bondbloke, I've written a post on the free movement of labour and Bulgarian and Romanian Accession.

Europa website domain name change

2006-05-15T22:26:00.000+01:00

Via the EU law blog I learned that the Europa website is migrating to the .eu domain name, from the eu.int domain name. Details (with apparent reassurance about the longer term availability of links to the eu.int domain) are in a press release here. After reading the post, I obviously went over and roadtested the europa website, and the various bits and various subsites, on the Commission and the Parliament sites in particular which I had saved in favourites for research use. There appears to be no consistency - but then who ever expected that on europa. In some cases, there is automatic redirection to a .eu url. Sometimes the old url still appears to work (for how long?). And sometimes the subsite is just dead. As a parrot. Disappeared. Unavailable. Extincto.

For someone who is just in the process of finishing a textbook on EU economic and social law, this is infuriating beyond belief, because each chapter contains key websites substantiating the material in the chapter. It's fine if the new domain url is available or even if the old one is dead and we can search out the new one. But what if the old url still appears to work, and there is no equivalent in .eu. It's all very well going to print in the next couple of months with this textbook. Maybe the urls are working now. But it will be mighty embarassing if they disappear within months of the book being published. So...that's perhaps where the back up website that many publishers provide, not to mention the blog might come in useful. Now...there is some food for thought on the interaction between pedagogy and blogging.

The seat of the European Parliament

2006-05-08T17:53:00.000+01:00

Gosh the posts are piling up thick and fast on this blog now...*smiles knowingly*

Actually, this is just a quickie to point you in the direction of an online petition here (via) calling for the European Parliament to have just one seat, rather than for its members and staff to indulge in the ridiculous performance of packing up everything and decamping to Strasbourg for a plenary session in an otherwise unused building, every few weeks...

This is an interesting case, though. Perhaps by signing the petition, you would be approving the practice of "cherry-picking", that is picking out those bits of the Constitutional Treaty which you most approve of and pushing them forward for early adoption. For the proposal refers explicitly to Article I-47 of the Constitutional Treaty on participatory democracy. The whole thing is worth citing, but it is paragraph four on petitions which is most pertinent:

1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.

2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.

3. The Commission shall carry out broad consultations with parties concerned in order to ensure that the Union's actions are coherent and transparent.

4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution. European laws shall determine the provisions for the procedures and conditions required for such a citizens' initiative, including the minimum number of Member States from which such citizens must come.

From my reading of the site, the proposers are some way off the desired 1 million signatures, but you have to start somewhere don't you?

EU enlargement and A8 migration

2006-05-07T15:50:00.000+01:00

This weekend has brought some amusement for those following the complex question of A8 migration to the UK, with an expose in the Sunday Times of the practices of Roger Knapman, MEP and UKIP leader and someone officially against EU enlargement because of its immigration consequences, who enthusiastically hires Polish workers to complete the renovation of his house in Devon (via).

"Over the past 11 months they have been working 10 hours a day, six days a week, while living dormitory-style in Knapman’s attic. His son’s company claims east Europeans are up to 50% cheaper than their British counterparts."

And also "better workers" - happy to do long hours for low pay.

Nice work by the Sunday Times to expose such hypocrisy.

Over at the Observer, the ubiquitous subject of Polish migration to the UK is covered from two important perspectives: that of the sending state, where there is increasing desperation about the haemorrhaging of skilled and talented workers, and the consequences in relation to the rebuilding of Poland's own economy; and that of the migrants themselves - plumbers, construction workers, DJs, although some do concede that their opportunities in the labour market have hardly been sparkling.

Most this seems unbearably upbeat, at least for the migrants. But a darker side was also revealed in the papers, and other reports, this week. A report from Barking, new far right capital of the UK, noted that particularly vitriolic racism is now reserved for the new white migrants from Central and Eastern Europe. Reporting the views of an elderly white resident, one woman said:

"She said they told her that they had no problem with black people and that it was the eastern Europeans - the Poles and the Kosovans - that they were against. She gave me the leaflet. The headline was something like Keep Britain White. I realised then that they were going to have a lot of people fooled."

This confirms fears highlighted by protests and attacks on Eastern European migrants in Northern Ireland earlier this year.

And, building on those reports in the Observer today which refer to the deskilling of many migrants, who take jobs in the UK which are far below their acquired skill level, it is worth looking at the detail available in a Joseph Rowntree funded report (downloadable from here) from the Oxford migration centre COMPAS, which focuses particularly on the experience of those whose status changed on 1 May 2004, from either illegal migrant or migrant on a work permit, to lawful EU migrant enjoying freedom of movement. Revealing diaries from the migrants reprinted in the report belie the "official" version of happy smiling migrant Poles and others, willing to do long hours for low wages.

Here are a few snippets:

"Catering is such ungrateful and tiresome work, requiring so much physical effort and no intellectual effort… It is a big physical effort which definitely is not proportional to the payment. And in general this job is very dulling on a long term basis – burning one out intellectually I would say."
Polish female hospitality worker aged 28

"I am more and more nervous because of the fact that I am not able to get a job according to my education and skills and I still work manually which brings me down pretty much. Every day my mind is occupied by money! What is the fastest way to earn? I have no problem with manual work but I would like to use my brains and skills to earn money."
Slovak male former au pair

And the message is? Many, most, perhaps all of the residents of the UK have, in recent years, benefitted from the influx of low wage labour, which has picked the fruit, repaired the plumbing, and made the capuccinos. Maybe we should just be shrugging our shoulders and saying: it's the market. Perhaps that will be Roger Knapman's explanation for his hypocrisy. Or maybe we should recognise the situation for what it is: complex, in terms of its impacts upon both the migrants and the "host" communities.

Over on BondBloke

2006-04-27T22:20:00.000+01:00

You will find an initial post on "Two years after Enlargement". More to follow on this blog over the next week or so as the press coverage evolves.

Should expatriates be allowed to vote?

2006-04-13T16:13:00.000+01:00

In the light of the role of Italian expatriates in the very narrow victory of Romano Prodi’s centre left coalition, I was going to post on the question of “should expatriates be allowed to vote?” Some interesting discussions are to be found here and here. Expatriate voting is, of course, a global phenomenon. It is especially important in places like Mexico or Latin America. It is very common within Europe.

Obviously there are various principles which could be applied when deciding whether expatriates should be allowed to vote: an ethnic nationalist conception of citizenship, for example, leads to the conclusion that expatriates of the same ethnos automatically have an interest in participating politically in the original home polity. Alternatively, if expatriates are very distant (physically, temporally, perhaps even psychologically) from the original home polity, and are more integrated into the host polity, perhaps to the extent of holding the citizenship of that polity as a dual citizenship, and consequently being able to vote there, then it is hard to argue that their political participation in the home polity is necessary either to secure their democratic rights or to ensure the democratic inclusiveness of a home polity which has seen a great deal of emigration. And there are lots of positions between those two. In reality, as the Italian case shows, many expatriate voting rights are introduced with a view to gaining party political advantage. Equally, as Berlusconi now knows, and Prodi enjoys to his advantage, this can backfire! The law of unintended consequences.

However, rather than focusing on expatriate voting as such, I decided to concentrate on the specific case of voting in national elections by those EU citizens (about 1.5% of population amongst the old EU 15 Member States; perhaps more if one takes into account the new 10 Member States despite the labour market access restrictions, but I have yet to see any convincing figures) who are resident in other Member States, under the EU free movement rules. This is because the Commission itself has said that this group consistently complain about the fact that they are excluded from voting in all national elections a lot of the time. For example, most cannot vote in the host state without taking on citizenship. The exceptions are UK citizens in Ireland, and Irish, Cypriot and Maltese citizens in the UK. Many cannot vote in their home state, if they stay outside the home state for long enough. For example, UK expatriate voting rights expire after fifteen years outside the UK. Furthermore, the EU positively encourages inter Member State migration as part of the single market programme, and since it does not encourage (or indeed discourage) free movers to take on the nationality of the host state because it guarantees them equal treatment based on their home state nationality with those who have the host state nationality. It seems therefore reasonable to argue that as a necessary corollary of the EU’s development, and in particular its claim to offer a form of ‘citizenship’ to all the nationals of the Member States, that there is a case for a comprehensive right to democratic representation amongst EU citizens which should apply irrespective of residence, and should not extend only (as it does at present) to local elections and European Parliament elections. But how should this be achieved? At the moment, the EU does not have the competence to order the Member States to allow resident non-nationals to vote in their national elections. And arguably it should not have such a competence. At this stage, however, I am simply at the stage of canvassing options, which I have narrowed down to the following:

1. Preserve full national choice in this matter as we have at the moment.

2. Member States could be encouraged to give a form of citizenship automatically to resident non-nationals to allow them to vote in national elections. This is rather like the US model for the various states, except that automatic citizenship acquisition in the state of residence was imposed by the Constitution as part of the development of US citizenship and is not a choice of the states. In the EU context, this would probably need to go hand in hand with encouragement to allow dual home/host state nationality, so that home state voting could also be possible.

3. To facilitate home state voting either loosen registration requirements (as in France where it is not hard to register to vote even if you actually really live elsewhere) and/or have generous expatriate voting arrangements with or without specialist expatriate representation (France, and now Italy have such specialist representation arrangements) and/or remove the temporal limitations (e.g. as in the UK). This means a move towards comprehensive expatriate voting for EU citizens resident in other Member States to ensure they don’t fall down a ‘democratic crack’.
It is worth noting that in the context of points 2 and 3, as a matter of principle a position needs to be taken on whether dual voting in the home and the host state in national elections is a problem. It is not permitted in the case of European Parliament elections which all EU citizens can vote for provided they are resident in the Member States or are resident in other states but are covered by their home state’s expatriate voting rules, because it is clearly wrong that any person should have two votes for a European Parliament elected under universal direct suffrage. In contrast it is not so clearly wrong that the individuals may have two votes in separate national elections.

4. The less likely option is that EU measures will be adopted by the Member States to require themselves to adopt such rules allowing resident non-nationals to vote. It would require a formal extension of competence under the treaties first (i.e. all the Member States would have to agree upon that, and there would have to be national ratification of such a Treaty), and this is both unlikely and, perhaps, undesirable.

5. The EU might start trying to persuade the Member States to do this, by pointing to examples where it happens – UK/Ireland – as best practice for democratic inclusiveness.

6. Finally, the Member States could be encouraged to start agreeing with each other to allow non-nationals to vote. This would be quite easy for Ireland. Ireland has the necessary legal provisions in place for a Minister to make an order allowing other categories of EU citizens to vote in its national elections, on condition of reciprocity. So if the Finns were to decide that the Irish could vote in their national elections, then Ireland would necessarily do likewise. However, it is an interesting question whether one could design an institutional format to structure the encouragement amongst the Member States to develop the trust and reciprocity necessary to extend their voting rights to each others’ citizens.

Gibraltar, Commonwealth Citizens and the European Parliament elections

2006-04-06T20:51:00.000+01:00

News comes today of an opinion issued by Advocate General Tizzano in the European Court of Justice in a couple of cases which I know more about than is probably healthy for me. The essence of the questions - which are somewhat niche, and BondBloke will probably "do for me" for blogging about this - is this:

1. Is it OK for the UK, when it decided that it had to include Gibraltar in the South West of England constituency for the 2004 European Parliament elections, at the same time to extend its normal suffrage rules under the Representation of the People Act? That means that all Commonwealth Citizens could vote as part of the Gibraltar electorate in EP elections, just as they do when they are resident in the UK (well, so long as they are lawfully resident).

2. Is it OK for the Netherlands not to allow Netherlands citizens who are resident in Aruba (which is part of the Kingdom of the Netherlands, but not part of the European part of the Netherlands, and which is not part of the European Union, but an associated overseas territory) to vote in the European Parliament elections, when it lets all Netherlands citizens resident in the Netherlands vote in those elections, *and* it lets Netherlands citizens (including those formerly resident in Aruba, who have never lived in the European part of the Netherlands) vote in those elections even when they are resident in third countries which are completely unrelated to the Netherlands?

The answers given by the Advocate General (AG) were no, to question 1, and no to question 2. By the way, an AG's opinion is merely advisory, and the Court of Justice which should soon rule on these cases (which have already been long delayed) may adopt a different view. But it is interesting to see the way it has been argued by the AG as it surely gives some clues as to how the Court might well rule.

I won't look more at the second case, because it would seem that the Netherlands have got themselves in a pickle by having very inconsistent rules. The last scenario referred to in my summary of the question before the Court - expatraiate voting - should be intended to protect the interests of Netherlands citizens who have a connection with the Netherlands even when they settle abroad. It is reasonably fair not to include Netherlands citizens resident in Aruba in EP elections, because nothing the EP actually does, such as passing legislation, actually affects Aruba. Aruba has its own democratically (mini-)legislature. But it seems arbitrary suddenly to include them in the EP franchise, and to let them vote for the EP, when they leave Aruba and travel to another unrelated country. This applies even where they have never actually been to, or been settled in, the European part of the Netherlands. After all, they have no more stake once they have left in what the EP does, surely, than they do when they are still in Aruba. Consistently, they ought to have expatriate voting rights letting them voting in the Aruba elections.

Anyway, the point of the little excursus is to point out that the key issue in that case appears to be that of consistency of the relevant legislation.

So...what of Gibraltar? Gibraltar was included in the South West of England constituency after the exclusion of its citizens (who are mostly UK citizens) was successfully contested before the European Court of Human Rights. Gibraltar's status remains very contested between Spain and the United Kingdom, and Spain made it as difficult as it possibly could for the UK to comply with the ruling of the ECtHR by making the UK implement all the necessary arrangements by means of unilateral legislative acts. It challenged various aspects of the UK's inclusion of Gibraltar into the EP elections, as it said this amounted to a further annexation of the territory of the colony into the territory of the UK. Spain conceded the right of the Gibraltar electorate to be included in the elections (since this was clearly the logical effect of the ECtHR ruling which it could hardly contest even if it has been obstructionist), but it wanted this to be done without actually holding the elections in Gibraltar. The only part of the steps which the UK took to implement the ECtHR's ruling which the AG has recommended to the Court of Justice that it should strike down is the part about Commonwealth Citizens resident in Gibraltar voting. He did at least accept that it would be unreasonable, and basically undemocratic, to give Gibraltarians the opportunity to vote in EP elections, but only if they registered by post and voted by post, and if none of the essentially paraphernalia of elections was actually located on the territory of Gibraltar.

But unfortunately he has not extended that view to the consistent application of the UK's albeit peculiar, but none the less historically coherent, franchise rules which allow Commonwealth Citizens to vote in all UK elections, including European Parliament elections. Now there does not seem to be anything in the AG's opinion which really challenges the rights of the 1m Commonwealth Citizens resident in the UK to carry on voting in European Parliament elections. I'm relieved about that. I am generally very sympathetic to the argument that so far as is reasonably possible the electorate in all elections should be as wide as possible, both because it enhances the democratic properties of such elections (with more of the people affected by the decisions being able to vote) and also because it enhances the human rights of those who are able to vote, as so far as is possible everyone should have as full a right as possible to political participation in relation to the institutions which take the decisions which affect them. If the underlying basis for creating a privileged category of foreigners in the UK (i.e. Commonwealth Citizens) who can vote in European Parliament elections is that this group with strong historical connections to the UK should have their right to participate in political institutions which affect their interests fully protected, then the same argument must apply to the (very small) group of people who are Commonwealth Citizens resident in Gibraltar. The point is not that this is a small group of people, about 100 only, though. The point from my perspective is that the AG has shown himself very unsympathetic to an argument about political inclusion, which has long, ans consistently, been enshrined in UK legislation. Why should the UK, therefore, have to be inconsistent when it applies its electoral rules to Gibraltar, and exclude Commonwealth Citizens. After all, the Netherlands appears to be about to be penalised for being inconsistent!
My summary here is only rather short. The overall Opinion is nearly 200 paragraphs, with 50 footnotes. But there is nothing, in my view, which provides an overwhelming argument as to why a national choice like that made in the UK to be more inclusive with voting rights should be cut down in a case like that of Gibraltar voting in the EP elections.

I hope the Court doesn't follow the AG. Watch this space!

New Blog

2006-04-06T20:46:00.000+01:00

My lengthy excursus on Gibraltar, European Parliament elections and Commonwealth Citizens on the blog I share with a number of others (Thoughts of BondBloke), which I suspect will try the patience of both my fellow bloggers and our faithful readership, has persuaded me that I should set up a separate blog, which may not be updated that often, for the "meatier" (maybe even "veggier") posts on EU law and politics. Hence the title of this blog. Welcome!