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Opening speech Prof Sybe de Vries at the bEUcitizen final conference 2017

Prof. Sybe de Vries, May 22, 2017

Dear participants of the final bEUcitizen conference on “The Future of EU citizenship”,

- JASON My children, what a savage mother you had

- MEDEA My children, how your lustful father wronged you

-JASON It was not my hand, that killed them

- MEDEA Your arrogance and new marriage did

(English translation by EP Coleridge, Internet Classics Archive, accessed 15 February 2017) 

 

Prof Sybe de Vries

This extract of a powerful and dramatic scene of Euripides’ Medea, pictures Medea as a woman who does not passively sit back and accept the injustice of what has been happening to her. Not only does Euripides’ characterisation of Medea, who had just killed her sons, exhibit the inner emotions of passion, love and vengeance, his play could also be seen as a plea for women’s rights in a patriarchal society, where Medea makes it very clear that it is Jason who has acted out of his own selfishness (AD Messing 2009; SA de Vries 2017).

More than two and a half thousand years later, it was the Belgian stewardess Defrenne who advocated for the equality of women, this time though in Luxembourg in an act before the Court of Justice, without bloodshed and more successfully (Case 43/74, Defrenne).

The Medea of Euripides belongs to one of the most popular classical tragedies; Defrenne is undoubtedly one of the classics of EU law. If we assume that Medea is also about equality between men and women, Defrenne corresponds to the values set out in Euripides’ play. In classical Greece the patriarchal society was a major obstacle for women in gaining equality, although this view has recently been put into perspective by a colleague in Utrecht, Josine Blok, in her book on citizenship in classical Athens (JH Blok 2017). The primarily economic orientation of the European Communities, though, did not appear to be a handicap for the European Court of Justice to develop a European fundamental rights dimension.

As Defrenne received lower pay than her male colleagues for identical work, she brought the Belgian airline Sabena to the Belgian court and argued that their decision violated the principle of equal pay for equal work, which is laid down in Article 157 TFEU. After the Belgian Court referred the case to Luxembourg, in a seminal judgment the European Court of Justice held that Defrenne could indeed rely on Article 157 before a national Court, vis-à-vis a private, non-state actor, the Belgian airline, as this provision was directly effective.

Defrenne was a crucial case for the development of EU citizenship and is highly illustrative for the bEUcitizen-research, for a number of reasons.

First, one could argue, at least from a legal perspective, that from the moment when the Treaties granted rights to individuals and the opportunity of enforcing them before the courts the status of ‘Community citizen’ [was] officially recognized. In Defrenne the Court recognized the particular status of female workers, and adopted an inclusive approach to citizenship.

In our bEUcitizen project we have recognized that different categories of citizens are affected differently and may encounter multiple barriers to the exercise of their citizenship rights. Our research has shown that some categories of citizens are more vulnerable, including women, and particularly migrant care women, migrants or minorities. And that EU law can apparently not always be a shelter for all citizens (N Nic Shuibhne 2017).

Second, the Court said something more interesting: it held that Article 157 TFEU, which had been included in the EEC Treaty as a purely economic provision to eliminate distortions of competition, did not only have an economic but also a social aim. As such, it contributed to social progress and the improvement of living and working conditions and it formed ‘part of the foundations of the Community’ S Burri & S Prechal 2011). But this did neither result in a substantial EU social policy, due to a lack of competences for the EU, nor guarantee that economic and social rights of EU citizens are weighed on an equal footing.

bEUcitizen research shows that in the EU the economic and social spheres have up until today been decoupled (FW Scharpf 2002), and in addition there are large differences between the welfare systems in the EU. This makes free movement and a decent living for some EU citizens difficult to realize in practice, if not an utopia. And those who can use their free movement rights across borders may be accused of upsetting local and national structures of social relations and solidarity. Would the adoption of the Pillar on Social Rights be able to change this? We will hear more about this today.

Third, in later cases, the Court of Justice extended Article 157 from a (mere) foundational provision of the EU, to a Treaty article giving an expression of a fundamental human right.[1] The development of human rights in the EU, has culminated in the legally binding EU Charter of Fundamental Rights. And according to the Treaty respect for human rights and the rule of law constitute the core values of the EU. Notwithstanding this crucial development for EU citizenship, the limited scope of application of the EU Charter means that some European citizens, the sedentary citizens or outsiders, cannot claim their civil, social or political rights as enshrined in the Charter. And there are very limited powers for the EU to counteract upsetting developments, like those that take place in Hungary or Poland. Yesterday there was positive news, though, as the Commission started an infringement procedure against Hungary in respect of its higher education law, threatening the vary existence of one of our partner universities CEU. The action is, however, first based on the fundamental internal market freedoms, notably the freedom to provide services and the freedom of establishment, which then offer the possibility to challenge the Hungarian law on the basis of the right of academic freedom, the right to education and the freedom to conduct a business as provided by the Charter of Fundamental Rights of the European Union. Furthermore, the Union’s legal obligations under international trade law are also mentioned as a reason for legal action.

bEUcitizenship research shows that it could ultimately be desirable to fundamentally alter the foundations of EU citizenship, placing fundamental rights at its core rather than mobility.

More heroines and heroes followed Defrenne in their endeavor to secure their EU citizenship rights. This led to groundbreaking judgments of the European Court of Justice, transforming EU citizenship into a fundamental status. During the last years, we see another trend, towards a limitation of EU citizenship rights, at least in a number of fields. The limits of legal possibilities to put more flesh to the bones of EU citizenship are in sight. The social and societal context must be taken into account: Citizenship cannot only be understood as a merely legal or constitutional category; citizenship must be studied in its interdependence between rules and practices, which is after all the premise of our multidisciplinary bEUcitizen project.

Meanwhile the challenges for the European Union are huge: the economic and financial crisis, widening inequality; the rise of populism, widespread contestation and Euro-skepticism; challenges to open borders and mobility; the consequences of the Brexit referendum, to list but a few.

It is against this background that our final conference takes place and it is more than ever pertinent to discuss the Future of EU Citizenship, which invites us to think about the end goal of European integration, the ‘finalité politique’.  After 70 years of peace and an era of unprecedented growth in Europe, one cannot simply conclude that, now the process of European integration has slowed down and even a Member State intends to leave the European Union, the EU has failed to live up to its expectations. And, that there would be no cause for celebration of 60 years Treaty of Rome.

The situation is serious, but not necessarily desperate. In fact, the end of the growth of European integration may, paraphrasing the words of TS Elliot, also be the beginning; the beginning of new forms of integration, as set out in the Commission’s White Paper on the Future of Europe, or the beginning of the development of a more mature concept of citizenship, or the embracement of alternative forms of EU citizenship.

These will be the topics of today and tomorrow.

Europe is in need of heroines and heroes, so that we do not only celebrate typically national fests, like today in the Netherlands Kings Day, but also the merits of EU citizenship throughout the whole EU.

I am happy to see that so many are present here in Brussels! Your contributions have during the last four years given the bEUcitizen-project mythological proportions, for which I would like to thank you so much.  We also have a number of guests and Advisory Board members present. Kalypso Nicolaidis, Herwig Verschueren, Stefaan van der Jeught, Catherine Woollard, Eve Geddie, Richard Bellamy, Daniel Keleman, Alice Kessler-Harris, Steven Blockmans, Agnes Jongerius and Catherine Barnard, who will be an inspiration for us and who will help us to discuss and disseminate the results of our project.

Furthermore, lunch sessions with policy-makers will take place during these two days and will be chaired by Herwig Verschueren and Sean Klein.

To grace our conference, there is an exhibition by Circus Europe (Machtheld van Buren and Peter van Lierop), with beautiful paintings showing the richness and diversity of Europe and its citizens. Furthermore, there is an on-going video presentation of our research, which has been set up by Beatrice Ngalula Kabutakapua.

This conference would not have been possible without the support of Antwerp University, in particular Maria Teresa Solis Santos and Anne-Marie van den Bossche, who have been supported by Alice Perenzin from Utrecht University. And, of course, not without the on-going support of the European Commission, in particular Philippe Keraudren and Yuri Borgmann-Prebil. I would therefore like to give the floor to Philippe Keraudren from the European Commission, DG Research & Innovation.

Our first heroic guest today is Professor Kalypso Nicolaidis: it is an honour to welcome our first keynote speaker, who is a Professor of International Relations at the University of Oxford and will give a speech bearing the intriguing title: To B or not to B a European citizen.

[1] Case C-50/96 Deutsche Telekom AG v Schröder ECLI:EU:C:2000:72, para 57.

EU citizenship: a slipping anchor to hold on to rights? Brexit and the consequences for EU citizens with British nationality

By Dr. Hanneke van Eijken, February 15, 2017​

[1] This summer many European citizens woke up in shock. Whilst reading the newspaper, listening to the radio, scrolling on Facebook, having breakfast, we learnt that a small majority of the voters in the Brexit referendum voted to leave the European Union. Not only does the (potential) Brexit have consequences for the internal market and the economic and social rights of EU citizens, but it also threatens their status as such. This is shocking for EU citizens with the nationality of another Member State residing in the United Kingdom, because their status will be redefined. For instance, in the future they will no longer be able to rely on equal treatment based on EU citizenship in the United Kingdom. Possibly even more shocked were British nationals, who might now actually lose their status as EU citizens, either living in the United Kingdom or elsewhere in the European Union. This will significantly impact their possibilities to work, study, and take up residence in another EU Member State.

In this blog-post I will discuss the role of EU citizenship in the Brexit, focusing on whether EU citizenship could be used as an anchor for British nationals to stay within the European Union – at least as citizens.

The current Article 20(1) TFEU provides: ‘Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.’ Therefore, the fact that a Member State ceases being an EU Member State consequently means that the nationals belonging to that State are no longer EU citizens, and may lose their rights as EU citizens to free movement, amongst others.

Since the Treaty of Lisbon there is a possibility for Member States to withdraw from the European Union. Paragraph 1 of Article 50 TEU reads ‘Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements’. In order to activate this Article, the withdrawing Member State must notify the European Council. After notification a process of negotiation commences in order to conclude an agreement, which is adopted by the Council with the consent of the European Parliament. If after two years of negotiation there is no agreement between the withdrawing State and the EU, the Treaties will simply cease to apply to the Member State at issue. At the time of writing the United Kingdom has not yet notified the European Council to start the Article 50 procedure. However, the current Prime Minister of the United Kingdom announced that she will start procedures to withdraw from the European Union, and the UK’s Parliament is involved in the procedure, so such a notification is to be expected (soon). Until then, the United Kingdom remains a full Member State of the European Union and its nationals remain EU citizens.

In this context, Article 20 TFEU and Article 50 TEU collide. On the one hand the Treaty grants EU citizens a citizenship status, but on the other hand it seems that Article 50 TEU undermines (or could undermine) the EU citizenship status and the rights that come with that status.

Invoking EU citizenship to challenge the loss of rights by Brexit?

As observed, if and when the United Kingdom withdraws its EU membership, British nationals who do not hold the nationality of another Member State would no longer qualify as EU citizens. Consequently, their rights derived from that status would also be lost. Could it be argued that, based on Rottmann and Ruiz Zambrano, a Brexit would result in the deprivation of the genuine enjoyment of the substance of the rights of EU citizens, thereby possibly affecting – or even blocking – the withdrawal from the EU, made possible by Article 50 TEU?

In the Rottmann case the Court of Justice of the EU explicitly ruled that the loss of nationality due to national legislation falls within the scope of EU law and that Member States should respect the principle of proportionality if they revoke the nationality of one of their nationals. The case concerned Mr Rottmann, who acquired German nationality due to naturalisation by the German authorities. When he acquired German nationality he also lost his Austrian nationality. When the German authorities discovered that Rottmann had hidden information (that he was subject to criminal investigation in Austria) during his application for German nationality, they withdrew his newly acquired German nationality. The Court of Justice of the EU emphasised that the Member States are competent to regulate nationality rules, but that it is clear that ‘the situation of a citizen of the Union who […] is faced with a decision withdrawing his naturalization, adopted by the authorities of one Member State, and placing him, after he has lost the nationality of another Member State that he originally possessed, in a position capable of causing him to lose the status conferred by Article 17 EC [Article 20 TFEU] and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law’ (para. 42). In the case of Ruiz Zambrano the Court of Justice of the EU added that the ‘genuine enjoyment of the substance of the rights’ of EU citizens may not be removed by a measure of a Member State (para. 42).  Since EU citizenship is based on the nationality of Member States it is valid and interesting to question whether one could argue that a Brexit would be disproportionate in light of EU citizenship. A Brexit would clearly lead to a situation that falls within the scope of EU law, based on Rottmann, and in which citizens are deprived of their genuine enjoyment of their rights as EU citizens.

However, in my view there are several reasons why the case of Rottmann might not be helpful for those British nationals who want to rely on their EU citizenship in order to keep that status.

First, there is a fundamental difference between Rottmann-like situations and Brexit: in Rottmann the German nationality was withdrawn by the German authorities by an individual decision, affecting one EU citizen. In the Brexit-context the (potential) loss of EU citizenship shall derive from a decision made by the government after a democratic referendum was held. Should individuals be able to challenge the outcome of such a referendum by relying on their EU citizenship rights? If that would be the case a democratic decision would be undermined. That would also run counter to the wording and system of Article 50 TEU, which refers to national constitutional requirements. Moreover, in Rottmann there was the serious threat that Mr. Rottmann would become stateless, which is not the case for British nationals.[2] There are therefore many significant differences between Rottmann and a Brexit situation.

Second, another reason not to be too optimistic for the application of Rottmann to Brexit is more formal, based on Article 50 TEU. Article 50 TEU was introduced in the Treaty of Lisbon to create a possibility to withdraw from the European Union. If the Court of Justice of the EU would rule that British nationals could invoke Rottmann to challenge losing their status as EU citizens, the Court of Justice would erode the purpose of Article 50 TEU.[3]

A third reason is that even if one could argue that Rottmann is applicable to the Brexit situation, it is important to bear in mind that in Rottmann the Court of Justice held that the withdrawal of nationality (including the status of EU citizenship) should be proportionate. It did not rule that withdrawal of nationality is principally prohibited by EU law. In that sense, it also seems highly questionable whether a Brexit would not be proportional, since the process was started by a referendum and was introduced by the Prime Minister, and, most importantly a Brexit is a decision taken by a democratic state.

Hence, even though it might be very disappointing, it will be hard to rely on EU citizenship as an anchor to hold on to rights enjoyed as an EU citizen.

Associated citizenship of the European Union

Are there alternatives to EU citizenship? In the United Kingdom the concept of associated citizenship of the European Union was discussed in the aftermath of the Brexit-referendum. Associated EU citizenship would entail a form of citizenship ‘for those who feel and wish to be part of the European project but are nationals of a former Member State’. It would offer ‘these associated citizens the rights of freedom of movement and to reside on its territory as well as being represented in the Parliament through a vote in the European elections on the European lists.’[4] Probably this proposal will not succeed to lead to another form of citizenship for British nationals, for various reasons. One important reason would be, in my view, that associated citizenship would (probably) lead to a status for those with sufficient means and possibilities to actually exercise their free movement rights. Still a small percentage of EU citizens actually migrates to other Member States (more permanently), which would make associate citizenship an ‘European elite status’. Such inequality would run against the absolute core of citizenship: equality. Another consideration is that in terms of the division of powers and the system of Article 50 TEU it is first of all up to the United Kingdom to negotiate on a new status for its citizens. It would therefore be not very appropriate, perhaps, if the solution came from the European Union, now that the United Kingdom wants to withdraw. Moreover, on a more procedural level, such associated citizenship would require a Treaty revision, which implies the consent of all Member States. It is not very likely that such a Treaty revision would garner unanimous support.

The way forward: destination unknown

It therefore seems that EU citizenship will not solve a Brexit for those who want to remain in the European Union as EU citizens. At the same time, as Davies argues, if EU citizenship can be revoked for a whole population by 51% of the voters, then how fundamental is EU citizenship? Davies states: ‘if we accept that Union citizenship can be removed by a national parliamentary majority of 51% then we implicitly regard that citizenship as a contingent status of convenience, a discount card in the supermarket that is Europe, rather than a corollary of supranational belonging.’ How does Article 50 TEU relate to Article 20 TFEU? Should Article 50 TEU not be read in the light of EU citizenship? Does EU citizenship become an additional status that can be revoked even if many want to keep their rights as an EU citizen? In that sense it is now even more important than ever to define (or redefine) the narrative of EU citizenship and its future.

Brexit poses various difficult questions in the context of EU citizenship: how to deal with the acquired rights of EU citizens residing in the UK? What will happen to the rights of British nationals in other Member States? Are they suddenly regarded as third country nationals? What consequences would that have? Many of these questions will have to be answered in the process of negotiations between the EU and the United Kingdom, as pointed out in more detail by Coutts. However, another urgent and fundamental question is, in my view: how do we want to value EU citizenship in a changing European Union, taking into account different developments on EU as well as on national level(s)? Is it time to redefine EU citizenship as a fundamental status or should we agree that EU citizenship becomes less constitutional, less supranational in concept? Or should we reinforce the underlying values of EU citizenship and what are those? EU citizenship seems to be more contested than ever, nowadays. A slipping anchor. Are we drifting away or can we try to secure what is often called the destined ‘fundamental status’ of nationals of the European Union? [1]

This blog is based on a larger contribution by Hanneke van Eijken and Pauline Phoa that will appear in the BEUCitizen book: ‘Civil Rights and the Coming of Age of EU Citizenship – Challenges at the Crossroads of the European, the National and the Private Sphere.’ Edward Elgar (forthcoming in 2017). See also the BEU Citizen report on core citizenship rights. [2] P. L. Athanassiou and S. Laulhé Shaelou, EU Citizenship and its relevance for EU exit and secession, in: D. Kochenov (ed.), EU citizenship and federalism (Cambridge University Press), forthcoming. [3]  See on this point also Gareth Davies, Union citizenship – still Europeans’ destiny after brexit?, Europa Law Blog, July 2016, http://europeanlawblog.eu/2016/07/07/union-citizenship-still-europeans-destiny-after-brexit/. [4] See the proposal for a regulation, Amendment 882 by MEP Charles Goerens.

EU CITIZENSHIP: DESTINED TO BE THE UNCOMFORTABLE STATUS OF UNDERAGE EU CITIZENS?

Anne van Heijst, August 30, 2016

In Grzelczyk, the European Court of Justice (ECJ) stated that: “Union citizenship is destined to be the fundamental status of nationals of the Member States.” Although the ECJ has refrained from explaining what this ‘fundamental’ status entails, it has been argued that if EU citizenship is really destined to be the fundamental status of Member State nationals, all Member State nationals, including children, should feel the effect of that status, irrespective of the exercise of free movement rights.

Should EU citizenship accommodate the fundamental rights of underage EU citizens?

At the policy level, the position of the child is anchored in the EU Agenda on the Rights of the Child. At legal level however, the framework lacks teeth to firmly secure that position. The Treaty makes little reference to children and the EU legislator has only limited competence to adopt measures. The Charter recognizes the best interest of the child in Article 24, but its scope of application is limited. Up until now, international influences have been limited due to the reluctance of the ECJ to rely on non-EU sources.

Because the rights have been largely confined to citizens exercising their free movement rights, the relevance for children is not so evident. A distinction is made between rights derived via Article 21 TFEU (‘Route A’) and Article 20 TFEU (‘Route B’). Route A refers to minor EU citizen children from moving EU citizens, who have been awarded far-reaching rights to facilitate their integration in the host State. Route B (via Article 20 TFEU) refers to cases in which a parent/carer derives rights from his minor EU citizen child directly, who has not exercised his free movement rights. In Zambrano and subsequent case law it was established that third country national family members of minor EU citizens are entitled to a derived right of residence, when refusal of such right would mean that both the minor EU citizen and their family member would have to leave the territory of the EU.

This assessment requires a relationship of a highly dependent nature. Although the interpretation of the notion of ‘dependency’ is crucial to enable children to enjoy their family life in the EU, clear guidelines as to what exactly constitutes ‘dependency’ do not exist. The strict interpretation of the Zambrano criterion by the ECJ has led to number of cases in which the minor EU citizen was separated from his third country national parent, possibly infringing his right to family life.

Rights derived via Route A are very much dependent on a familial link. Rights derived via Route B are only awarded after passing very strict test, in which the presence of just one parent has been found sufficient. It is hard to imagine how this could ever be in ‘the best interests of the child’ and its ability to enjoy family life. In the Chavez case the ECJ has the opportunity to offer a higher level of protection to minor EU citizens, by providing clarification on the interpretation of the ‘dependency’ criterion and by establishing a link with the Charter. Although the ECJ only has limited means at its deposal, an approach which takes the best interests of the minor EU citizen as a starting point would in my opinion be most preferable. A real amelioration of the position of minor EU citizens however, would require more dramatic action by the European legislator.

Therefore it can be concluded that although from a children’s rights perspective it would be welcomed if EU citizenship would accommodate the fundamental rights of underage EU citizens, it currently does not.

Anne van Heijst

Blog based on her Master thesis in EU Law.

Download the thesis: Anne van Heijst

Opening speech Prof Sybe de Vries at the bEUcitizen conference 2016

July 8, 2016

Dear mr. rector,

Dear team of the University of Oviedo,

Dear colleagues,

First of all, many thanks to the University of Oviedo, particularly the rector, Professor Silvia Gomez and her team for making it possible to host our fourth bEUcitizen General Assembly Meeting!

A conference that is held in a time of great uncertainty for European citizens, faced with rising nationalism, growing xenophobia and populism, fear and anger. These are all culminating in last week’s referendum, wherein the Brits chose to leave the European Union; the Brexit, I am afraid, is casting its shadow over our conference.

Brexit shows that emotions have not been – and possibly can never be – overturned by a strong belief in humanity and the continuous hope for a better future. Scaremongering and emotional feelings were part of the Leave and Remain campaigns in the UK and were further exploited by the media.

In a ‘column’ in one of the major Dutch newspapers NRC Handelsblad Bas Heijne referred to the Belgian writer Simenon, who, having experienced two world wars, a lot of brutality and hardship, still believed in the capacity of human beings to defeat racism, to express solidarity and to promote equality; some of the key values upon which the European Union is based. Are we now, Heijne asks himself, going to leave this worldview? What is certainly not going to help – as we have seen – is a pragmatic, calculating and valueless response.

A commentator on the BBC’s website wrote the following: “But it is undoubtedly true the UK’s immigration debate and the Greek crisis are so heated because people don’t feel the same connection, the same (often limited) desire to help people from other European nations, as they do with those they define as their own. That, not red tape or some ill-defined responsiveness, is the EU’s central problem. It will have to start recognizing it and wrestling with it rather than resenting it and ignoring it, if it wants to survive.”

The recent terrorist attacks in Brussels and yesterday at the airport in Istanbul will once again inform the already heated debate on immigration, which was the main issue for the Leave campaign. Our open societies based on the worldview of Simenon and his contemporaries are indeed under severe pressure.

According to Martin Seeleib Kaiser in his latest blog on the bEUcitizen website, Brexit has opened an existential phase for the future of the EU. It was not really about Britain’s membership of the EU, but about social inequality. And similar differences and feelings of discontent can be found in many other European countries.

But there are not only feelings of discontent that dominate the debate on the EU. After all the younger generation in the UK voted en masse for staying in; so did the Londoners and Scotland. There were still more than 16 million Britons in favour of staying in. This reveals that there is a growing gap between those who resent globalization, and cherish nationality and sovereignty, the more vulnerable and less educated citizen; and those who belief in and benefit from globalization, the generally stronger and more highly educated citizen. This widening of the gap between groups of citizens is set against the backdrop of a complex European and geopolitical scenery: A scenery, which is increasingly emotionally charged, where emotions spread faster through the (social) media than rational and economic arguments.

Although we should not forget that the relationship between the UK and the continent has never been easy – it was not until 1973 that the UK became a Member State of the EEC -, Brexit does point to structural European problems as well. The institutional structure of the European Union, which was designed within the context of the European Economic Community in 1956 comprising six Member States, must be radically overhauled. A quantum leap is needed with more clearly defined competences at EU level, rethinking the so-called integration by stealth method, increasing democratic control and legitimacy, and redefining the relationship between the EU and its Member States. At the same time, great efforts are required to protect unity within the European area.

Legal challenges relating to the application of Article 50 of the Lisbon Treaty, the position of Scotland within the European Union or the pros and cons of the UK adhering to the EEA agreement are awaiting. Legal scholars have already come up with various variations, such as the EEA agreement, an EEA plus arrangement including provisions on the Area of Freedom, Security and Justice, an EEA minus agreement, excluding the free movement of persons or separate trade deals. Although some argue that it is highly questionable whether Article 50 will be triggered at all: who of the politicians with a Parliament that by a vast majority wants to stay in the EU, would like to push the red button? Would a second referendum be an option?

The fact is that so far, at least in constitutional terms, nothing has changed.

For that matter, the proponents of the Brexit seem to wish to stay in the Single Market. As if the Single Market should be pictured as a narrow trade agreement, or a narrowly defined economic project. The Single Market is not only built upon the four ‘economic’ freedoms, including the free movement of economically active citizens, it also entails EU rules on socio-economic and flanking policies, it has severe implications for migration policy and is based on the fundamental principles of equality and solidarity. Otherwise, the Single Market is indeed biased by a neo-liberal agenda, something that the pro-Brexit voters precisely rejected. There appears to be a paradox: the Eurosceptic parties wish to abide by a narrowly defined European economic agenda, where citizens only have narrowly defined economic rights, though companies have broad access to foreign markets. This may put their voters, who are in a more vulnerable position, in an even more vulnerable position. The decoupling of the economic and social spheres, as famously framed by Fritz Sharp, has led to major institutional impediments at EU level to pursue a more social Europe, to provide for an equilibrium between conflicting market-making and market-correcting policies. Where this route has been blocked, or bumpy, we should try to find other ways to protect – and to engage in – the more vulnerable citizens in Europe.

If there is one thing we know, it is that the work that you have carried out within the bEUcitizen project matters more than ever. The clock is indeed ticking. Just as Brexit raises concerns and intriguing questions about the future of the UK and the EU, it offers opportunities which the EU should seize. Clues as to how these questions may be answered and how these opportunities could be seized can already be found in the many deliverables that have been produced so far: a tremendous achievement, upon which I would like to complement you.

For instance: clues for the use of referenda and the circumstances under which these could or could not enhance the legitimacy of the European Union; clues for enhancing legitimacy at European level; clues for the development of more local concepts of citizenship with citizenship rights being reasonably accessible, as existed in towns before the French revolution; clues for protecting and fostering cultural diversity and a sense of belonging in the Member States through the establishment of robust EU institutions; clues for a more economically sound, social and inclusive citizenship; clues for the recognition of a broader conception of work, protecting the position of immigrant women; clues for a better protection of civil rights of citizens throughout the EU and within the Member States, some of which face particular challenges when it comes to human rights and the rule of law.

During this General Assembly we can capitalize on our findings and respond to the challenges that Europe and European citizenship face, firstly, by organizing panel discussions in which our findings are synthesized according to five cross-cutting themes, i.e. concepts of citizenship, rivaling citizenship rights, levels of rivalries, rivalries of categories of citizens and gender and generational aspects of citizenship. We will also look at future scenarios for the development of European citizenship during this conference, one of which may have become reality already, and, of course, we will meet each other in individual work package meetings, to discuss the final stage of our work.

For that matter, Oviedo seems exactly the right place to be for our bEUcitizen conference at this moment of time. Our quest for and belief in an ideal European citizenship will be reinforced by good food, sparkling cider and a spiritual and dramatic scenery. In the conference map you find information on this beautiful, historic town. On Friday an excursion is planned, which shows you some of the cultural and gastronomical highlights of this town and the region of Asturias.

But do not get yourselves too much distracted by emotional feelings, and stay focused on the topic of this conference and on the key question of which values should underline the concept and idea of European citizenship.

To assist you herein, you will find a postcard, a print of a painting by Pauline Phoa with a poem, written by Hanneke van Eijken. This painting was given to me as a present on my inaugural lecture held in Utrecht last year. The painting and the poem symbolize Europe and the values it stands, or should stand, for, and it should remind us that these values are indeed worth fighting for.

This brings me to my final point: I wish you all a fruitful conference, which is our next last bEUcitizen conference, as we have now entered the final year of our research project.

And once again, many thanks to all of you who show such strong commitment to our project.

Back to business – The Court in Alimanovic

July 7, 2016

By Associate Professor, PhD. Catherine Jacqueson,
Welma – Center for Legal Studies in Welfare and Market,
Law Faculty, Copenhagen University, Denmark.

The Alimanovic ruling (C-67/14) on jobseekers’ social rights was long awaited. The legal framework was the same as in Dano (C-333/13), but this time the German subsistence allowance was claimed by two Swedish nationals who had previously been working for 11 months in Germany. In contrast, Mrs Dano had never worked in the country and apparently had no intention and ability to do so. Yet, in Alimanovic, the Court stuck to its restrictive approach to the social rights of Union citizens initiated in Dano. Access to social benefits is indeed narrowly defined and the Residence Directive seems to form the new backbone of Union citizenship. Thus, the Court ruled that the two claimants could be denied access to social assistance after six months of unemployment and that the citizenship provisions could not work as a safety net in this respect.

Retaining the status of worker: loosening the protection?

First, the Court confirmed that citizens who have previously worked in the host country retain their status of worker after ended employment. Yet, it results from Art. 7(3) of the Residence Directive that the protection thus enjoyed might be limited in time. For employment lasting less than a year, Union citizens lose their status of worker after 6 months unemployment. Therefore the German authorities were perfectly entitled to end payment of the subsistence allowance after that period of time. The Court’s ruling is no surprise as the Court’s recent case-law pays lip-service to the provisions of the directive and a strict reading thereof. Yet, the Court’s ruling contrasts with its more citizen-friendly approach in Saint-Prix (C-507/12) where the it had emphasised that the status of worker might be retained in other circumstances than those explicitly listed in the directive.

No help to get from the citizenship provisions

Second, the Court had to assess whether the Alimanovic family could be entitled to the benefit on the basis of the citizenship provisions if they no longer could be considered as workers. The main issue was whether the German subsistence allowance constituted social assistance under Art. 24(2) of the Residence Directive and could thus be denied to jobseekers. The Court had ruled in Vatsouras (C-22 & 23/08) concerning the same benefit that jobseekers enjoyed equal access to benefits which facilitate access to the labour market, and that a condition of being capable of earning a living could constitute an indication thereof. Yet, in Alimanovic, the Court took a different approach and classified the German benefit as social assistance. This was the case even if the scheme had the dual purpose of both (1) covering the minimum subsistence costs for enjoying a life in dignity and (2) facilitating the search for employment. Therefore, Union citizens who were no longer workers could legitimately be excluded from accessing the benefit.

Back to basics

Furthermore, unlike in Brey (C-140/12) there was no need to make an individual assessment of the situation of the claimants. The Court claimed that the provisions of the directive providing for a gradual retention of the status of worker and their social rights already did so and ensured increased legal certainty for the Union citizen. Again, this approach which was initiated in Förster (C-158/07), shows that the Residence Directive has become the new back-bone of Union citizenship. On a final note, it seems to follow from the Court’s freshly handed-down ruling in Commission v UK (C-308/14) that jobseekers may not claim other type of benefits such as family benefits on an equal treatment basis. Dano, Alimanovic and Commission v UK are all evidence that there is not much protection to get from the citizenship provisions. Work is more or less the sole gateway for Union citizens to access social rights. And even this is contested as shown by the Brexit-situation.

AFTER THE BRITISH REFERENDUM

EUROPE AT A CROSSROADS

Martin Seeleib-Kaiser (University of Oxford), June 24, 2016

THE VOTE FOR BREXIT has opened an existential phase for the future of the EU. Irrespective of the political debates over the past year or so, the British referendum at its core was not about Britain’s membership in the EU, but about how the country copes with deindustrialization, deprivation and one of the highest levels of inequality in Europe. “Privatized Keynesianism” (C. Crouch) helped to conceal the underlying economic and societal fault lines of Britain for much of the 1990s and early 2000s. Even at the height of the financial crisis the country did not even wake up. Moreover, what followed were years of austerity, which especially impacted communities that had previously been severely hit by deindustrialization.

The Brexiteers built on, and further fueled, the dissatisfaction by blaming Europe and European ‘immigrants’ for all the problems the country is facing, from stagnating wages for many to increasing waiting times within the National Health Service. In addition, the Brexiteers were using the argument that European integration had led to a loss of parliamentary sovereignty and forcefully maintained that the country needed to once again take control. The day of the referendum was elevated to INDEPENDENCE DAY.

The REMAIN campaign did not really address any of the underlying socio-economic issues, but was arguing a vote for leave would lead to an economic crisis, an approach which was coined by the Brexiteers as ‘project fear’. Until very late in the campaign, the REMAIN camp did not provide positive arguments for continued membership, for instance that EU citizens are actually contributing to the economy and filling skill shortages, be it in the manufacturing, construction or the health care sectors. Not to mention the fact that EU citizenship or membership in the EU might constitute something to be celebrated, irrespective of the economic costs or benefits.

A large proportion of the electorate obviously did not believe the REMAIN campaign things could get worse, was of the opinion that the negative consequences would not matter, as it felt it had nothing to lose or was afraid that continued EU membership would make their perceived or real situation even worse.

In many European countries we can identify similar feelings of discontent. Without making clear that the pro-European elites across Europe, but especially in the capitals of France and Germany, have understood the message of the British electorate, it might be too late for the EU — it is five to 12!! After decades of market integration it is time for the realization of a SOCIAL EUROPE, should we not wish to abandon the ideal of European integration and citizenship!

WE ARE FACED WITH THE QUESTION: TO BE OR NOT TO BE.

EU Citizenship, Free Movement and Residence-based Social Security Schemes

Frans Pennings, June 16,2016

NEW PUBLICATION ON CITIZENSHIP AND SOCIAL RIGHTS

SPECIAL ISSUE OF EUROPEAN JOURNAL OF SOCIAL SECURITY VOLUME 18 – No. 2 – JUNE 2016

Special Issue edited by Thomas Erhag

This Special Issue focuses on how residence-based social security schemes have reacted to legal developments concerning EU citizenship and the free movement of persons. It is well known that the development of case law concerning the right to free movement and equal treatment for EU citizens, together with an expanding scope of the Regulation 883/04 have triggered discussions of ‘social tourism’ in several Member States.

In May 2015, a workshop was organised at the University of Gothenburg, where invited scholars, some of them working in Work Package 6, presented papers on the reaction of national law to legal developments at the EU level. The participants represented countries using residence-based schemes: the Netherlands, the United Kingdom, Finland, Denmark and Sweden. The overarching objective of the workshop was to describe and analyse the reactions of residence-based schemes to the free movement of persons within the EU. This Special Issue includes edited versions of the papers prepared for the workshop together with an introduction and an analysis of the papers as a conclusion.

Student “zero” and the principle of non-discrimination on grounds of age: a fruitful discussion with high school students.

Elena Ioritti, May 19, 2016

European Court of Justice, C‑432/14, “0” v. Bio Philippe Auguste SARL, 1 October 2015.

In summer 2010 a university student (anonymously called Student “zero” in the CJEU ruling) decided to spend part of his winter vacation working in France. He was recruited by Bio Philippe Auguste SARL, under a fixed-term employment contract for the period from 21 December 2010 to 24 December 2010. On the expiry date of his contract, on Christmas eve, he was informed that he would not have received his end-of-contract payment, as Article L. 1243-10 of the Code du Travail (subparagraph 2) provided that that sum is not payable  the contract is concluded with a young person during school holidays or university vacations.

Regardless of the small sum at stake – 23,21 Euro – the student brought an action before the Conseil de Prud’hommes de Paris (Labour Tribunal, Paris), seeking the sum in respect of the end-of-contract payment. He considered that French provision preventing the recognition for the sum was contrary to the Constitution, which guarantees the principle of equal treatment, as well as the principle of non-discrimination on grounds of age, provided in  Council Directive 2000/78/EC of 27 November 2000 (“Framework equality directive”), establishing a general framework for equal treatment in employment and occupation.

After the involvement of the Conseil Constitutionnel– which concluded for the legitimacy of the French provision, as it was simply establishing a specific treatment for students who intend to return to their schooling at the end of a working period during holidays – the Conseil de Prud’hommes in Paris decided to refer the matter to the Court of Justice for a preliminary ruling.

The referring Court asked “whether EU law, specifically the principle of non-discrimination on grounds of age enshrined in Article 21 of the Charter of Fundamental Rights of the European Union and given specific expression by Directive 2000/78, must be interpreted as precluding a national provision………….under which an end-of-contract payment, …………… is not payable in the event that the contract is concluded with a young person for a period during his school holidays or university vacation”.

***

The above mentioned proceeding is part of the expanding case law of the CJEU in the field of age discrimination prohibited by law. The battle for age equality has been assuming great importance in International and European law, particularly after the enactment of the above mentioned Council Directive 2000/78/EC of 27 November 2000, the purpose of which is to combat discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation. Although containing only few provisions specifically addressed to age equality (see for example ILO Older Workers Recommendation 1980 n. 150), International human rights law  has also viewed this kind of discrimination on some occasions as a form of  “other status” discrimination, prohibited by art. 26 of the International Covenant on Civil and Political Rights (ICSECR) and art. 14 (prot. 12) of the European Convention on Human Rights (ECHR), as well as some other human rights instruments (see on this: C. O’Cinneide, The growing importance of Age Equality, in The Equal Rights Review, 11, 2013, p. 99 ff). With regard to EU law specifically,  the CJEU, by definitively acknowledging that age inequality  is a specific form of discrimination, has also set out a framework that serves as a comprehensive guide of the Members states, as to when the use of age-based distinction is or is not legally and objectively justified (O’Cinneide, cit. p. 102. See decisions Andersen; Mangold; Prigge and others).

From a strictly technical point of view, the “Student 0” proceeding at stake is just one example of the extending CJEU case law giving both employers and national legislators criteria for deciding  when age distinction will or will not satisfy the requirements of EU law. The Court introduced a difference in treatment between two categories of workers: students employed on the basis of a fixed-term employment contract during a university vacation and “regular” workers, who unlike the former, are entitled to the end-of-contract payment. According to the Court, following the aim of Article L. 1243-8 of the Code du Travail, the two situations are not comparable; as a consequence, a national provision providing that an end-of-contract payment is not payable in the event that the contract is concluded with a young person for a period of time during his/her school or university holidays does not constitute discrimination on grounds of age. Therefore, the principle of non-discrimination on grounds of age (enshrined in Article 21 of the Charter of Fundamental Rights of the European Union and having specific expression in Council Directive 2000/78/EC of 27 November 2000) must be interpreted as not precluding a national rule, as the one enacted in France, impeding recognition to a young student of a specific labour compensation.

***

The decision is therefore to be intended as part of a reinforced case law and does not constitute a leading case. What seem to be more interesting within the EU citizen project are the reasons that lead student “zero” to start the legal action.

At the hearing, the student applicant expressly admitted that the dispute had been provoked solely and exclusively in order to challenge the provisions enacted in France which prevented young students to receive the end-of-contract payment. That was very clear to the Court of Justice itself, as the ruling explicitly reports  that, given the small sum at stake, the dispute was obviously fictitious and had been provoked solely and exclusively in order to challenge the provisions at issue.

One might wonder whether the French provision has been perceived by student “zero” as a barrier to the exercise of his own rights, as a European citizen.

***

Student “zero” decision has been a stimulating occasion to deepen the knowledge of students’ perception of EU citizenship and rights. What does it mean to be a European citizen for Italian-European students? Are students aware of their rights as EU citizens, particularly young high school students, who have never studied law?

In the last few weeks I decided to go through some discussions addressed particularly to teenagers studying in Italian high schools and institutes of primary education. Of particular interest are those schools where law is not included in the educational program: the debate I provoked and deliberately oriented on legal issues became a kind of experiment to measure the perception of young people as regards  the meaning and the concrete value of European citizenship.

In most cases Student “zero” decision was the starting point of the discussion. After having exposed a simplified version of the case, I asked the students to comment the story, without influencing their views and opinions by explaining the case from a strictly legal point of view. In most cases, students showed an instinctive capacity of decodifying the Court decision on their own, by referring to a rather clear idea of “right” and “element preventing its exercise” (barrier!).

High school students proved to have an instinctive knowledge of their rights, deriving from their status of European citizens, which, in most cases, coincides with a general idea of freedom. Holding a right means, to those young students, being protected in the exercise of their freedoms. This is not surprising at all: according to the “Economist” (http://www.economist.com/) when asked  the question  “what the EU means to you”,  57% of Europeans aged  between 15 and 24  cite the freedom to travel, work and study anywhere they like. And the mobility of young people is made possible through easy access to work too. The discussion with the students proved that it is crystal clear to them that this mobility is important for participation in social and working life. Some of them consider it a crucial requisite to be full EU citizens. This is not surprising in southern Europe, where young students are aware of the fact that their standard of living will probably be worse than that of their parents. Consequently, the possible perspective of moving to a different EU State in order to find or create a profession is naturally present in their future plans.

The debate helped students to understand the complexity of European citizenship and our project bEU citizen aims to make their ideas a little more real.

 

Eurostat categories and available national data: a telling mismatch

Drazen Hoffmann, May 12, 2016

At the heart of any well-founded research activity, there are necessarily datasets – and perhaps no dataset represents data of first resort as official (national) statistics do. Usage of the lowly official statistic, mundane as it may seem, may also be what statements of trends are based upon, what hypotheses are tested against and, ultimately, what theories may be built upon or debunked by. The second portion of Work Package 10 of the bEU citizen research project (WP 10.2.) has dealt with identifying and reporting on the availability of data on the access to citizenship, work and welfare disaggregated by various groups in several countries included in the analysis, according to a number of categories used by Eurostat. Considering bEU citizen’s overall interest in what benefits citizenship of EU Member States entails, and how other statuses of belonging and non-belonging differ from EU citizenship, the category of citizenship would be of the foremost interest here. Upon seeing the example of data categorization presented by the WP lead (UK team), while we did expect some differences in data categorization between the two countries, the task seemed to be straightforward enough. However, it turned out to anything but that, due to severe data limitations in official Croatian statistics. In fact, it immediately became obvious that the data categorization available in the UK would be entirely impossible to emulate. This is due to a number of features of Croatian official statistics which become apparent when they are juxtaposed with another national dataset, one which is structured according to a much larger set of categories. Firstly, the categorization of many important datasets on employment and welfare by nationality which makes up the focus of interest for the entire WP10, is non-existent in official Croatian statistics. According to official explanations we received from the Croatian Bureau of Statistics, this is due to the fact that samples taken from a nationally very homogeneous population – such as the one that the Labour Force Survey (LFS) is conducted on in Croatia – will themselves be so homogeneous that any disaggregation by nationality is either impossible or includes such a small number of individuals that reporting it would entail a breach of legislation on personal data secrecy. Secondly, the inability to disaggregate data by nationality on important variables, such as employment, unemployment or inactivity rates, also means that many interesting comparisons are rendered impossible. In the specific case of Croatia, meaningful comparisons across groupings by citizenship (Croatian, EU, non-EU etc.) would be hard in any event, again due to population homogeneity and small population sizes of non-EU citizens; but the unavailability of disaggregation makes many more meaningful insights impossible, including the variability of (un)employment rates across national minority populations or the outcomes of attempts to successfully integrate foreign nationals and migrant workers into the labour market. Thirdly, almost nothing can be learned about the household compositions of various populations by nationality. Housing availability and quality is a long-standing issue with, for example, the Roma population, as low per capita living quarter areas and poor housing conditions affect many. Many single-person low-income households, especially those inhabited by elderly persons, also tend to be at high risk of poverty. Overall, the issue of household composition and income is one of an inability to make cross-references which tie in not only with citizenship status, but with other socio-demographic variables as well. Exact relations between these variables cannot be obtained with the existing scope of data on housing. Finally, taking all of the above into account, specific data on welfare benefit take-up – including unemployment support, monetary social assistance, child or disability benefits – remains unknown. Even when the goal of disaggregating data on assistance take-up would not be used for the purpose of profiling any specific group by nationality as “habitual welfare recipients”, this data is simply unavailable. The take-up of various social assistance measures is expressed in a very general figure, aggregated from Social Care Centres – the territorially diffuse distributing bodies for various welfare outlays. Disaggregation of this data is available by gender and age, but many other categories – which would reveal important dynamics of disprivilege and inability to access socially desirable positions, such as gainful employment – are not reported on. However, what was even more surprising, Eurostat data on select variables concerning Croatia only served to make the comparisons of data more difficult. Namely, the Eurostat data available on Croatia was, to a large extent, marked as being ‘unavailable’ or ‘unreliable’, while in several other cases, there were incongruities between the national statistics and the data submitted to Eurostat. And although none of these incongruities are very problematic by themselves, the “uploading” of national data to Eurostat datasets remains somewhat obfuscated by this fact. Also significant is the fact that the public services whose data is aggregated and published by the Croatian Bureau of Statistics do not separate the data by the categories requested by Eurostat, either. We can only conclude that this is a policy choice, as the data on, for example, welfare measure take-up is of course based on complete enumeration and not on a survey sample, making the explanation of methodological limitations less convincing. Ostensibly, more standardization of Croatian official statistics towards Eurostat benchmarks will follow. Still, it is worth reminding ourselves that data blanks themselves represent data. So, what do the data deficiencies in the Croatian case tell us? Although the component also exists, these deficiencies are not merely the indicators of a lack of data-gathering sophistication in comparison to older EU-Member states and their long-since standardized statistical systems. Just as importantly, the gaps demonstrate that the state context shapes official data-gathering practices. With the high degree of national homogeneity and with so many of inhabitants of Croatia who are not Croatian citizens holding the citizenship of one of the neighbouring former Yugoslav states, the notion of a “non-citizen” or an “alien” has apparently remained limited enough not to warrant statistical examination or to provide a route to data disaggregation by nationality. As circumstances change and Croatia becomes a migration destination, these practices will likely change, too. Baričević, Hoffmann (2015) Report on data availability and limitations contributing to Deliverable 10.2

EU citizens and the right to social assistance

Frans Pennings, March 29, 2016

On 25 February of this year, the Court of Justice gave a ruling in the García-Nieto (C‑299/14) case, that can be seen as a last stage step in the developing law that excludes EU citizens from social assistance during their first period of staying in another Member State. As will be easy to understand, this is a politically very sensitive issue, since Member States are very concerned on so-called social tourism, i.e. that persons go to another Member State merely or predominantly in order  to receive benefit in that country. This concern was a very important issue in the Brexit file.There is insufficient space  here to deal with all these aspects and it is not necessary either since we will soon publish a report on this issue on this website (WP 6.2., to be completed this Spring). The ‘old’ case law In the past decade the Court of Justice of the EU narrowed down access to social rights for EU citizens considerably. In its  initial case law on EU citizenship the Court decided that excluding foreigners from social assistance on the ground of nationality was contrary to, what is now, Article 18 TFEU (Grzelczyk judgment, Case 184/99). In the judgment no possible objective justification was discussed, but maybe the reason for this was that the Member State involved (Belgium) had not proposed such justification. Probably it had never thought that EU citizenship could have had such an impact. Later case law became more restrictive and this is partly explained by Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (the Citizenship directive), that was adopted a couple of years later. According to Article 6 of this directive, Union citizens have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport. According to Article 7 Union citizens have the right of residence on the territory of another Member State for a period of longer than three months if they: (a) are workers or self-employed persons in the host Member State; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State (..). Only after five years full equal treatment with nationals is required. Article 24 of the directive provides that the host Member State is not obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the work seeking period, that may continue after these three months. Dano judgment A landmark decision after the implementation of the directive was the Dano judgment (C-333/13). In this judgment two important issues were decided. The first one was whether a special non-contributory benefit is to be treated as social assistance for the Citizenship directive. This was a very important issue, since special non-contributory benefits, such as unemployment benefits for those who have never worked, are not treated as social assistance for the Coordination regulation for social security (Regulation 883/2004) and thus these benefits have to be paid regardless of the nationality of the claimant. The Court, however, argued that if they were not considered social assistance, EU citizens could claim these benefits and thus continue their stay in a country while being a full burden for the public finances. This was not in line with the objective of the directive and therefore they have to be treated as social assistance for the Citizenship directive The second question was whether Ms Dano could  be excluded from this benefit on ground of her nationality. The Court answered this question in the affirmative: a Union citizen can claim equal treatment with nationals of the host Member State in relation to benefit only if his/her residence in the territory of the host Member State complies with the conditions of Citizenship directive. The directive provides that the right to residence after three months is retained as long as the Union citizen and his family members do not become an unreasonable burden on the social assistance system of the host Member State. Ms Dano and her son did not have sufficient resources and therefore could not claim a right of residence in the host Member State under Directive 2004/38 (although they had a right to permanent residence according to national law, but relevant here is whether they have a right to residence according to the Citizenship directive). Therefore, they cannot invoke the principle of non-discrimination in Article 24(1) of the directive. So this case law interpreted several provisions of the directive in such a way that the escape route by claiming special non-contributory benefits was closed. Alimanovic judgement A second judgment was also an answer to a German court, and concerned the question whether the German jobseekers allowance was a separate category of benefit, i.e. benefits of a financial nature which are intended to facilitate access to the labour market of a Member State. Previously it was thought that these were not to be treated as social assistance. The Court decided that even though it had such characteristics of helping jobseekers to work, it is a form of social assistance (Case C‑67/14). García-Nieto In the recent García-Nieto judgment the Court completed this approach. The claimants in this case applied for a special non-contributory benefit already within the first three months of their residence in Germany. Benefit was refused since the applicant had resided in Germany for less than three months and that, moreover, he did not have the status of a worker or self-employed person. The Court argued that a Union citizen can claim equal treatment with nationals of the host Member State under Article 24(1) of Citizenship directive only if his residence in the territory of the host Member State complies with the conditions of the directive. The applicant could base his right of residence on Article 6(1) of the directive, since this article provides that Union citizens have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport. However, in such a case, the host Member State may rely on the derogation in Article 24(2) of Directive 2004/38 in order to refuse to grant that citizen the social assistance sought. Assessment It is quite a development, from Grzelczyk judgment to Dano and García-Nieto. The Citizenship directive is used as a basis for the new approach, but the Court of Justice had to also overcome some interpretation issues that were not solved by this directive, such as the meaning of ‘social assistance’. Also the requirement that one must have a right to residence according to the Directive before one has a right to equal treatment is an interpretation added by the Court to the system of the directive. However, it is very clear that in the present situation for Member States access to benefits by Ms Dano – who has never undertaken any initiative to seek work, but still claimed unemployment benefit – was unacceptable. The judgment drew a lot of attention in the public press in the UK. The García-Nieto judgment, which took place after Dano is not very surprising. For EU citizenship the social rights chapter is a very interesting one, as we will further elaborate in the report 6.2. EU citizens may be excluded from social rights even though they have the right to move to another Member State and even if they come in destitute circumstances. However, after five years, they have to be treated the same as nationals, which is not the case for some other rights, such as political rights. A third remark is that in Dano it is remarkable that unemployment benefits were not simply refused by the German benefit administration to a person who is not seeking work, but the issue is brought all the way to the Court of Justice as a matter of principle on EU citizenship. Apparently, since the German jobseekers allowance was vulnerable for access by EU citizens without work or other resources, the German court wanted to have a definite answer to whether this benefit had to be paid and used this case in which the facts do not draw much sympathy for the claimants of whom the German court had explained that they did not want to work at all. All three cases discussed here are from German court and had as effect that all ‘dangers’ for the vulnerable benefits were systematically erased by the Court of Justice and that the German system is protected against benefit tourism. In our report 6.2 we will also go into the approaches and systems of other Member States, that react not so smoothly to EU law on EU citizenship and therefore have more problems in adjusting their system to the growing free movement of EU citizens. For the area of social rights for EU citizens, the interaction between Court of Justice, the European Union and the Member States is extremely important.

What are the barriers to European citizenship? Work (for those who can)

Isabel Shutes, March 21, 2016

The rights of European citizenship to free movement are premised on work: on the development of the European Union as a market, with the free movement of labour alongside goods, services and capital. Notwithstanding the extension of those rights to 'economically inactive' EU citizens, the rights of the mobile EU citizen to reside in a member state of which they are not a national citizen, beyond three months, are contingent on work (being a worker, self-employed, a job-seeker) or self-sufficiency, on having “sufficient resources for themselves not to become a burden on the social assistance system of the host Member State” (Article 7, 1(b), Directive 2004/38/EC). At the same time, the entry of non-EU citizens to the European Union as workers is premised not simply on work but skills and income, removing the barriers to entry to European labour markets for higher skilled, higher paid workers (Directive 2009/50/EC). Non-EU citizens’ access to permanent residence in a member state (after five years of continuous legal residence) is similarly premised on work/self-sufficiency: non-EU citizens must demonstrate economic independence by having stable and regular resources, sufficient to live “without recourse to the social assistance system of the member state concerned" (Article 5, 1(a), Directive 2003/109/EC). The status of EU and non-EU citizens as ‘workers’ structures both their mobility into/within Europe and their stability – their claiming of rights of residence in a member state of which they are not a national citizen. The principle of inclusion on the basis of work similarly underpins policies to promote the labour market activation of national citizens across the member states: policies that range from measures to support those out of work to re-enter employment to more punitive measures that obligate benefits claimants to undergo work-related activities. Self-provisioning through work is promoted as a responsibility of the national, EU and non-EU citizen. We are all required to be worker-citizens. The 2008 economic crisis, however, exposed the limitations of the worker-citizen model, of assuming ‘employment for all’ and individual self-sufficiency within the market. Household income from employment fell in real terms in some OECD countries (including Ireland, Italy, Spain, Sweden, the UK, the USA) in the period 2007-2009, while income from self-employment fell across most OECD countries. At the same time, there was a substantial increase in social benefits as a share of household income across OECD countries (Jenkins et al., 2013). Work-related conditions of citizenship have not, however, been relaxed – indeed proposals supported by some member states to restrict the access of mobile EU citizens to social benefits reaffirm those conditions. In the context of UK policy reforms since 2008, work-related conditions have intensified in restricting access to rights of residence and to social benefits across national, EU and non-EU citizens, with the dual purpose of controlling migration and reducing expenditure on working-age social benefits. Non-EU workers have for some time had no access to social benefits ('no recourse to public funds') in the UK: they are entirely dependent on their labour. Permanent residence has been the basis for access to those social rights. Recent reforms have, however, further restricted the access of non-EU workers to permanent residence: non-EU skilled workers must now acquire a salary of £35,000 to be able to apply for permanent residence after five years (they must be workers with an income above the median earnings of all full-time workers in the UK). EU workers may, in principle, have rights under EU law to access social benefits. However, in order to access those rights as an EU citizen-worker in the UK, they must provide evidence of a minimum level of earnings (approx. £150 per week over a three-month period) or be assessed as having been engaged in ‘genuine and effective work’. And while, in principle, they have automatic rights to permanent residence after five years, they must provide evidence of work/self-sufficiency in the UK over this period to claim the status of permanent resident. Of course, the UK has pushed for further restrictions on EU workers' access to social benefits through its negotiations on the continued membership of the UK in the EU. At the same time, low-income workers who have access to means-tested social benefits in the UK –national, EU or non-EU citizens – are subject to increasingly restrictive conditions that make not simply work but a minimum level of earnings an individual responsibility of the worker. Under the new Universal Credit benefits system, those whose earnings fall below a threshold (equivalent to 35 hours at the national minimum wage) will be required to undergo activities to increase their earnings by increasing their hours of work and/or their wages. While 'employment for all' across Europe may be central to supporting economic growth, tackling disadvantage, reducing poverty, and other policy goals, a market-based model of citizenship has implications for extending inequalities among different categories of citizens and non-citizens. Restricting access to rights of residence and to social benefits on the basis of paid work, level of earnings, and continuity of work and earnings, divides national, EU and non-EU citizens alike in terms of the relationship of particular groups to the market. The EU citizen-worker is not a neutral status. From a gender perspective, the EU citizen-worker may be a woman. Indeed, there are high rates of employment of EU citizen-women in some member states, compared both to EU citizen-men and national citizens overall (Eurostat). However, as a woman she is disproportionately represented in 'atypical' work (e.g. part-time, agency work), in low-paid sectors such as care and domestic work – in work which may not meet the requirements for providing evidence of work (in the UK) or allow her to achieve continuity of work over five years. She is also more likely to exit the labour market not simply due to 'involuntary unemployment' but in order to care (Lewis, 2002), also with implications over the long term for retaining the status of 'worker', for access to social benefits and access to permanent residence. So what are the barriers to European citizenship? While work has for long underpinned citizenship, being a 'worker' is not always enough – for national citizens, EU citizens and non-EU citizens – to be able to access rights of residence/citizenship and rights to social benefits. The research carried out under Work Package 10 of the bEUcitizen project points to the ways in which work not only divides us but connects seemingly disparate groups in terms of the barriers of citizenship. See the following reports/article for further discussion: Deliverable 10.1. Deliverable 10.3 (forthcoming, 2016). Shutes, I. (forthcoming, 2016) "Work-related Conditionality and the Access to Social Benefits of National, EU and Non-EU citizens", Journal of Social Policy.

EU Citizens, Social Rights and Brexit

Martin Seeleib-Kaisert, February 26, 2016

The new ‘settlement’ for the UK - EU Citizens, Social Rights and Brexit

 [1] After long hours of negotiations the European Council reached a ‘new settlement’ on the EU membership of the United Kingdom.[2] The British electorate will now vote in an ‘in-out referendum’ on 23 June 2016 whether to remain or leave the EU. Core to the decision for significant parts of the electorate is the compromise with regard to immigration and social rights. Leaving the EU could have a significant impact on social rights of British citizens. Although the new settlement might address populist views especially with regard to alleged ‘benefit tourism’ not only in Britain, but also in Germany and other Member States, it is highly problematic from a principled perspective. Many elements of the compromise seem rather symbolic, as they are stating the obvious, such as, that Britain is not part of ‘an ever closer Union’ or that multiple currencies exist within the EU, but the compromise with regard to social rights of EU migrant citizens has high political, and potentially legal, significance, as it aims to discriminate EU migrant citizens from Central and Eastern Europe (CEE). Seemingly, the threat by the British Prime Minister to leave the EU was perceived as so serious and potentially so costly for the Union, that Heads of State and Government sacrificed the core principle of non-discrimination when suggesting that Britain could “limit the access of newly arriving EU workers to non-contributory in-work benefits for a total period of up to four years from the commencement of employment” (No 2b Annex I of the Conclusions) and “index such [child] benefits to the conditions of the Member State where the child resides” (Annex V). Both of these measures are clearly aimed at workers from CEE countries, as these tend to have lower wages (Spreckelsen/Seeleib-Kaiser 2016) and living standards (see Eurostat) and are therefore more likely to rely on in-work benefits and be affected by the restrictions of child benefits than workers from other parts of the EU. However, should the British electorate vote OUT the principles of the EU will remain in tact, as the Council has agreed that it will not proceed with the legislative process to enact measures it has agreed upon.[3] This suggests that the Council’s decision was primarily driven by the desire to appease the British Prime Minister and his demands. Should the British electorate vote IN, the ‘emergency brake’ to curtail in-work benefits and the reduction of child benefits in line with the living conditions in other Member States could still be stopped by the EU Parliament, as MEPs have to agree on the secondary legislation to amend the respective directive and regulation as part of the decision procedures in line with the Treaty on the Functioning of the European Union (TFEU Article 294). The European Court of Justice has the right to eventually declare the legislative act incorporating these amendments as void, should it, for instance, decide these new measures violate the principle of anti-discrimination enshrined in the Treaty (TFEU Articles 263, 264, 266). From a substantive perspective it will be interesting to see how the EU Commission will design the specific legislative proposal, which subsequently has to be agreed by the Council as well as the European Parliament. Let’s assume that the EU Commission takes GDP per capita in Purchasing Power Standards (PPS) as a benchmark for adjusting child benefits. Then benefits for children living abroad in a number of Member States, such as Denmark, Ireland and Germany, would actually have to be increased significantly as the living standards in these countries are higher than in the United Kingdom (see Eurostat); only adjusting child benefits downwards for countries with lower living standards would surely be discriminatory. Based on the current compromise a Welsh parent working in London with his/her children living in West Wales, with a GDP per capita in PPS of 67.4 per cent of the EU average (see Eurostat), would receive the full UK child benefit, whereas a Hungarian or Polish worker employed in London with his/her children living in Hungary or Poland, both with an average GDP per capita in PPS of 68 per cent, would only receive approximately two-thirds of the benefit paid to the Welsh worker. Such an approach would seem to clearly discriminate against CEE workers based on nationality and limit the freedom of movement within the EU. It could therefore be opposed by the European Parliament or eventually challenged in the European Court of Justice. All this raises much bigger questions of different living conditions, not only across Member States, but also within Member States. The differences within Member States are at times larger than between Member States. To take the regional differences within Member States into account, the EU for instance bases the allocation of its structural funds on regional GDP per capita in PPS. Following the logic of this approach would mean to reduce child benefit for a worker with children in Wales to two-thirds of the UK average and massively increase the child benefit for children living in Inner London to be reflective of the living conditions there (GDP per capita in PPS of 325 of the EU average). A precondition for pulling the emergency brake in relation to in-work benefits would be compelling evidence demonstrating that UK Tax Credits function as “a pull factor“ leading to an “inflow of workers from other Member States of an exceptional magnitude over an extended period of time” (Sec D, No 2, b of Conclusion of the European Council Meeting). However, to my knowledge such evidence has not been made publicly available and is very unlikely to exist at all. The EU Parliament would be well advised to demand clarifications of what constitutes a “pull factor” and how “exceptional magnitude” is defined. It remains to be seen how the EU Commission will design the so-called emergency brake and whether the EU Parliament will agree to such a legislative proposal. But what seems to be clear is that Prime Minister Cameron cannot be certain of the outcome of the parliamentary deliberations. Assuming the EU Parliament will not significantly amend or veto a legislative proposal developed in the spirit of the Council decision, the UK Government would eventually have to present compelling evidence to the Council for it to be able to authorise the UK Government to pull the emergency brake. In other words, the emergency brake is dependent on the authorization by the Council. Furthermore, the amendment to Regulation (EU) No 492/2011 can also be challenged in the European Court of Justice. To summarize: The European Parliament and the European Court of Justice could still ‘undo’ the new UK settlement after the British electorate has voted to stay IN the EU, despite the fact that, especially, the decisions taken by the Council in regards to immigration are core to the REMAIN campaign! The REMAIN campaign should at least acknowledge that the UK remains semi-sovereign until such time as it leaves the European Union. However, semi-sovereignty can also be turned into an argument for the REMAIN camp by those, who want to be sure that minimum workers’ rights remain protected, irrespective of the government in power at Westminster. For instance an act of Parliament would be insufficient to undo the social protection guaranteed by the Working Time Directive (minimum number of holidays each year, rest breaks, no more than 48 hours of work per week etc.), the Parental Leave Directive (minimum entitlement for leave of four months to care for children up to eight years old), or the Directive on Temporary Agency Work (principle of non-discrimination regarding essential conditions of work and employment). These directives can only be changed at the EU level. However, if the UK left the EU the protections granted under these directives would no longer protect British workers. Assuming the British electorate votes to leave the EU, what effect could this have for British citizens in addition to the loss of social protection described above? Amongst others British citizens would no longer be entitled to following rights:

  1. Freedom of movement within the EU, affecting not only workers, but also students and most importantly pensioners;
  2. Access to (free) medical treatment in another Member State;

Ad a) Currently not only EU citizens from other Member States have the right to live in the UK, but obviously also British nationals have the right to live and work anywhere in the EU. According to EUROSTAT more than 740.000 Britons live in another Member State, many of them as pensioners in Spain. Leaving the EU would mean that the British government could pay lower pensions, more specifically not provide yearly increases, to those living in another Member State, similar to the practice in place for British pensioners living in jurisdictions outside the EU. Britons would no longer be entitled to spend their retirement in Spain, as other Member States could demand a valid visa and restrict the purchase of a retirement property. British students studying at universities in another Member State could not only be charged tuition fees at the level of third country nationals, but could also be required to hold a valid visa and be barred from working to supplement their income. Approximately 13.000 British university students per year could no longer participate in the Erasmus exchange programme. Working in another Member State could be extremely difficult, as visas and work permits could only be given to UK nationals, if EU citizens could not fill a vacancy. British workers who would receive a work permit could still be discriminated against and would no longer benefit from the EU coordination of social security and from the social rights associated with EU citizenship, i.e. not be entitled to cumulate/export pension rights earned in a Member State of the EU, to family benefits or to other social benefits. Ad b) Currently, EU citizens have access to (free) medical treatment in another Member State, if they are a pensioner, student, tourist or worker, either through the European Health Insurance Card (EHIC), a special arrangement for pensioners, or by enrolling in the local scheme as a worker. Leaving the EU would mean that people traveling to another Member State would have to carry private medical insurance. Especially for pensioners retiring in France, Germany or Spain this could mean significant monthly costs, easily reaching more than €300 per month. Furthermore, EU citizens are entitled to go to another EU country for medical treatment and get reimbursed for it, according to the Directive on Patients Rights in Cross-border Healthcare. Should Britain leave the British patients would obviously no longer have this right. To sum-up: Irrespective of the big arguments relating to British EU membership and the economy or national security, the EU offers tangible social rights to ordinary British citizens. Losing them could be costly! [1] This assessment builds on research funded as part of the FP7 project bEUcitizen by the EU Commission (grant no320294). See C. Bruzelius et al. (2015) Social Rights of EU Migrant Citizens, in Social Policy and Society, FirstView Article, October 2015, pp 1 - 14. C. Bruzelius/M. Seeleib-Kaiser (2016) “Social Rights of EU Citizens,” in: Patricia Kennett (ed.) Handbook of European Social Policy. Cheltenham: Edward Elgar, forthcoming [2] See European Council (2016) European Council Meeting (18 and 19 February 2016) -- Conclusions. EUCO 1/16. Brussels. [3] European Council (2016); No 4 of the Conclusion of the European Council Meeting of February 18/19 states: “It is understood that, should the result of the referendum in the United Kingdom be for it to leave the European Union, the set of arrangements referred to in paragraph 2 above will cease to exist.”

No, an eventual independent Catalonia cannot decide who is Spanish (...nor who is EU citizen)

Raúl Ignacio Rodríguez Magdaleno, January 18, 2016

  The political process opened at the regional level in Catalonia, claiming the independence from Spain, has opened many questions on different matters connected to States succession, amongst them, the nationality of those people involved in the process. The whole process is depicted by those promoting it as an only positive possibility that will not entail any negative consequences, beginning by the continuity of the Catalans in the EU. Absolutely, the promoters of the independence process have taken for granted that Catalans would be EU citizens in any event on the following arguments. Spanish law on nationality classifies Spaniards into origin-Spaniards and those who have acquired the nationality on other grounds. According to Spanish Constitution, article 11, no origin-Spaniard can be deprived from Spanish nationality. The reasoning of the independence promoters, then, considers that Catalans, even in the event of seceding from Spain would still massively hold Spanish nationality. So far the Catalans, nationals of Catalonia and Spain, would hold the nationality of a EU member State, they would enjoy EU citizenship, even though Catalonia were not a member States. Flags of Catalunya (L-R), Spain and EU wave near Barcelona November 15, 2012. REUTERS/Albert Gea The argument is not very well founded, however it deserves some comments. It is true that the Spanish Constitution has foreseen that origin-Spaniards may not be deprived from nationality, but this is a rule that in fact deals with the very relationship between the State and the nationals, creating a singular and sovereign relationship between both parties in normal conditions, so to say. This rule preventing deprivation is more aimed at prohibiting former penalties in Spanish criminal law than aiming at covering a situation in which the sovereignty of Spain could be torn asunder. Stretching the reasoning, the situation would be such one in which Spain has her sovereignty break into pieces and she cannot decide on her own who her nationals are due to a Constitutional norm targeted at the common relation between her citizens and the State. However, the situation would be but another one, a case of succession of States, and the specific rule of International Law are called up, otherwise, national law would prevail over international law, what International Law and the very Spanish Constitution do not account for. In addition, the premises of the hypothesis of the continuity of the Spanish nationality result in the deprivation of the right of Spain to decide who is and who is not her national. This contradicts the principles of International Law governing nationality, as the PCIJ put it (case of the Nationality Decrees Issued in Tunis and Morocco), this matter lays to a great extent within the domain réservé of States (as the international Tribunals has shown, for instance, as recently as the Interamerican Court of Human Rights in its decision 28 August 2014, case of Personas dominicanas y haitinas expulsadas c. República Dominicana –see SÁNCHEZ LORENZO, S., “Derechos humanos y competencia exclusive del Estado en material de nacionalidad (La Sentencia de la Corte Interamericana de Derechos Humanos de 28 de agosto de 2014: caso Personas domincanas y haitianas expulsadas c. Repúblic Dominicana), REDI, 2015, 2, pp. 111-133-). The very International Law Commission, on occasion of the Draft Articles on “Nationality of Natural Persons in relation to the Succession of States” (http://legal.un.org/docs/?path=../ilc/texts/instruments/english/draft_articles/3_4_1999.pdf&lang=EF) has pointed out that no State involved in a secession is forced to offer double-nationality and that this is a very exceptional situation in International Law (especially when we are dealing with the hypothesis of a new State, then it is not very clear how a new State could appear while keeping nationality nexus with the predecessor State). Moreover, the ILC foresees expressly the case of secession and article 25 of the Draft Articles asks the predecessor State to withdraw its nationality from the new citizens of the new State, as the ILC points out, “this provision is based on State practice which, despite some inconsistence, indicates such withdrawal has been to a large extent an automatic consequence of the acquisition by persons concerned of the nationality of a successor State” (“Draft Articles on Nationality of Natural Persons in relation to the Succession of States with Commentaries, 1999”, http://legal.un.org/docs/?path=../ilc/texts/instruments/english/commentaries/3_4_1999.pdf&lang=EF, pp. 46 and 47). In the light of the foregoing, the argument of the continuity of Spanish nationality is merely based on the enforcement of an internal rule of Spanish Constitution to an international situation, a states succession phenomena, but this option must be discarded so far the lex specialis of succession of States is the one called up to be decisive in such case. Otherwise, Spanish Constitution would prevail over International Law, what the very article 96 of Spanish Constitution and International Law do not allow, furthermore, it would convey that a new State is resorting to the predecessor States’ law in order to determine basic aspects and manifestations of sovereignty. Moreover, this interpretation would exclude the principles governing nationality, as proclaimed by the PCIJ and ICJ, and succession of States, as the ILC has written them down, imposing Spain who her nationals may be even against her own will and sovereignty and, by the same token, imperiling the reality of a hypothetical new State that would lack an own population. So far the continuity of nationality seems to be a very implausible result, the odds are that the Catalans would not enjoy the EU citizen, at least the vast majority that would lose Spanish nationality.

The migrant in data

  Sarah Walker, December 18, 2015

Statistics are becoming increasingly important for shaping policy at national and European level. More and more data on populations is collected, and is of ever more salience in policy debates. As new member states join the EU they are called upon to contribute to Eurostat – the European statistical office of the European Union, which provides statistics at European level that enable comparisons between countries and regions. As its website states: ‘This is a key task. Democratic societies do not function properly without a solid basis of reliable and objective statistics.’ With the increasing value placed on data collection, and the growth of migration control as a policy topic, as part of work package 10, we explored how migrants are captured in datasets in different member states. Our report The ‘migrant’ in data: Report on analysis of national and European datasets on employment, inactivity and unemployment rates, and benefits uptake by specific groups examines both national datasets, in the form of national labour force surveys (LFS) of the partners in the project (the UK, the Netherlands, Ireland, Spain, Israel and Croatia), as well as Eurostat harmonised data sources: the European Union Labour Force Survey and European Union Statistics on Income and Living Conditions. One of the problems in exploring migrants in datasets stems from how they are conceptualised, which may differ across and within countries. In the UK, for example, migrants can be defined in at least three different ways: by place of birth (i.e. foreign-born), nationality (i.e. foreign citizens), and length of stay in the UK. As the Migration Observatory sets out, there are numerous conceptual difficulties and implications for this (Anderson & Blinder, 2015). These datasets were not developed for research purposes, or for the purposes of exploring migrants in the population thus using them to draw conclusions about migrants can be problematic. National LFS are sample surveys, and only cover ‘households’. Therefore, certain groups are excluded, those living in communal establishments such as students living in dormitories or people living in temporary accommodation are not covered. There can also be issues with small sample size, and difficulties capturing more recent migrants who do not have the language ability to respond to surveys. Thus the LFS tends to under‐estimate proportions of migrants who in some ways differ from the established population, that is, categories which are most likely to be vulnerable in the labour market, are less likely to be included (Jayaweera & Anderson, 2008).  At the European level, Eurostat also acknowledges that there are many caveats to the data presented – as to its reliability and comparability. Indeed, the migration data reported by the individual countries in Eurostat are not completely comparable (neither between countries nor over time). Our report sets out and problematizes some of these issues. Compare, for example, the new European member Croatia, with the UK or the Netherlands, both countries with a long history of immigration and colonial ties, and large migrant populations. In the Netherlands, populations are aggregated into autochthone (native Dutch, officially defined as persons with both parents born in the Netherlands, regardless of where he/she was born) and various sub-categories of allochthone (non-native, officially defined as: persons with at least one parent born abroad) populations. In contrast, Croatia, as a new EU state finds itself in the position of being more of a transit country in terms of migration and collects next to no data on ‘migrants’. The majority of foreign nationals in Croatia are from one of the neighbouring ex-Yugoslav countries (46% of all foreign citizens in Croatia are citizens of either Bosnia and Herzegovina, Serbia, Slovenia or Montenegro), and as such were (themselves or their parents) effectively nationals prior to the dissolution of the common state in the early 1990s. This prevalence of neighbouring-country migration is indicative of the relatively low interest in Croatia as a migration destination. There are nonetheless a number of other foreign nationals residing in Croatia, but according to our partners, as yet Croatian public bodies have not seen the need to monitor foreign nationals’ economic activity and benefit take-up and ‘migrants’ are thus mainly absent from the data. It will be interesting to see how this changes with Croatia’s membership of the EU. As our report highlights it is important to remember that statistical processes are not necessarily the neutral and benign form of enumeration they can be taken to be (Sussman, 2004), but rather can contribute to processes of ‘othering’ and normalised ideas of in/exclusion. One needs to look behind the numbers at the framing of concepts embedded in statistical systems and remember the caveats that warn of unproblematically accepting the numbers game. References: Anderson, B. & Blinder, S. (2015) Who counts as a migrant? Definitions and their consequences. Oxford. The Migration Observatory, COMPAS. Available from: http://migrationobservatory.ox.ac.uk/briefings/who-counts-migrant-defini... Sussman, C. (2004) ‘THE COLONIAL AFTERLIFE OF POLITICAL ARITHMETIC:  SWIFT, DEMOGRAPHY, AND MOBILE POPULATIONS’ Cultural Critique, 56, Winter 2004, pp. 96-126 Jayaweera, H. and Anderson, B. (2008) Migrant workers and vulnerable employment: a review of existing data. TUC Commission on Vulnerable Employment

What to Make of Direct Democracy?

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Francis Cheneval, November 30, 2015

The up-coming referendum in the UK on EU-membership is a suitable occasion for a more general reflection on popular votes, democracy and European integration. Conventional wisdom holds that political integration to higher levels of political unity has led to the transformation of democracy from direct democracy in city-states to representative democracy in nation-states. But direct voting, as opposed to representative parliamentary decision-making, is closely related to European integration. Many countries have decided membership in the EU or EU-treaty ratification by a popular vote. It thus seems that such affairs are widely considered to be basic constitutional acts of fundamental importance. As such, they are acts of sovereignty that are to be decided by no one else but the sovereign. If the sovereign is the people, i.e. the collective of citizens, then the decision needs to be taken by the citizens collectively. This matter appears to be interpreted in this sense even in countries like the UK, where the bearer of sovereignty is parliament not the people. Even in the UK the people and not parliament are to decide the very fundamental constitutional question of EU-membership. However, if one takes a closer look at what is really happening, the UK referendum on EU-membership and most EU-related referenda in member states do not fulfill the conditions of popular sovereignty that I have just circumscribed. There are at least five problems with most EU-related referenda. First, with the exception of countries that have constitutional articles requiring obligatory referenda on treaty ratifications or any constitutional change – such as for instance Ireland or Denmark – it is the governments that call EU referenda in the member states. This is done at their discretion and at times when it suits them. It is not the people as the sovereign that have the right to speak the authoritative word. Like children in the “good old days” sitting hushed around the dinner table, the people only have the right to answer when asked a question. If referenda are to be real acts of sovereignty and if the sovereign is really the people, then there needs to be the possibility for the people to call the referendum. This could be done for instance by a certain amount of citizen signatures, or the requirement for a referendum on constitutional change being enshrined as a political right of the citizens, i.e. obligatory by constitutional disposition. If governments can call the referenda as they wish, at the time when it suits them, the referenda are not instruments of popular sovereignty but strategic tools of governmental action. They increase the realm of discretionary executive power instead of increasing popular control and the political rights of citizens. Second, the result of the referendum needs to be binding if it is to constitute an act of popular sovereignty. But in most cases results of EU-related referendum are consultative at best. The recent referendum in Greece is a case in point. The government calls a referendum on an austerity package, the people say no and a week later the government enacts an even more severe austerity package. Unless one wants to argue that the Greeks rejected the package because it was not severe enough this plebiscitary governmental playing with referenda and their results can hardly be interpreted as an act of popular sovereignty. A similar process was to be observed with the French and Dutch votes on the Constitutional Treaty of the EU in 2005, in which this Treaty was rejected, only for most articles to be introduced later into the Lisbon Treaty without a popular vote. The second time around the people needed to remain silent because they were not asked and they were not asked because they gave the “wrong” answer to the question the first time around. These two points show that plebiscitary style referenda do not decrease but increase the executive-bias of EU integration. Third, the serial referenda that took place on the Constitutional Treaty in 2005 created political inequalities among European citizens because some citizens were at least asked a question and had the right to answer, others were not even asked, and what others have decided was imposed on them under veto rules. Fourth, there were even political inequalities among European citizens who did get to vote directly because these votes were not held at the same time. During the ratification process of the European Constitutional Treaty the idea was to hold the votes early on in the countries where favorable results were expected in order to build up pressure on governments and other peoples to follow suit. Democracy means choice. If the procedure itself predetermines the result rather than the preferences of the people there is only a simulation of democracy. It is very hard to make procedures result-neutral but we should at least try. The actual practice of referenda in EU member states goes in the wrong direction. Fifth, the bias that is created by referenda can also work against the preferences of the citizen themselves. Countries who are unfamiliar with direct democracy at the national level risk second order voting when they hold plebiscitary referenda. People may not answer the question that is asked on the ballot but interpret the vote as a vote on the government as if it were an election. This could very well happen in the UK. Instead of having the long term interests of the UK in mind people might interpret the vote called by the government with the promise to offer the UK people a better deal with the EU as a vote on the tory government and its ability to strike a better deal with the EU, not as a vote on the public interest of the UK. Fortunately, the people are probably going to see through this, but highlighting this matter more visibly in the public discourse might help. In brief, from a normative as well as from an empirical point of view there are a number of very serious drawbacks to the uncoordinated, plebiscitary, and purely consultative use of referenda in the EU integration process.  What is happening in these referenda is not direct democracy as realization of popular sovereignty. We are rather witnessing a strategic use of executive power with dangerously delegitimizing and distorting effects. If direct democracy were taken seriously, referenda on constitutional fundamentals would be obligatory, binding and, in the case of treaty ratifications, well coordinated among the EU member states. Furthermore, direct democracy would need to be present at local and national levels of government in order to avoid second order voting. I personally think that all this is desirable, but as long as it cannot be achieved plebiscites should not be considered a proxy of direct democracy.

Refugee flows or refugees floating? Few things the EU should be aware of

Vassilis Hatzopoulos, November 3, 2015

The macabre title of the present blog would be provocative if it did not correspond to the actual reality. Only during the last four days of October over thirty people have lost their lives while attempting the maritime passage from the Turkish coast to some Greek island; almost half of them infants and children. During the same month of October some 218.000 asylum seekers – the same number as for the entire year 2014 – have attempted the crossing.[1] Lesvos, Chios, Samos, Kos and Rhodes constitute the main recipients of the large – and increasing – flows of asylum seekers. From there they are set to move to some other, richer, EU country. The Department of Social Administration and Political Science of the Democritus University of Thrace (Greece), which I am currently heading, took the initiative of sending six students and two staff (myself included) for a week to offer voluntary work in Samos. On the basis of this extremely enriching experience I would like to share some information, mainly qualitative (since we are overwhelmed by numbers by the media), and some thoughts. Such thoughts, of course, remain very far from suggesting viable solutions. Greek Cruise This is the way the passage to Greece is being ‘communicated’ to tentative asylum seekers from Turkish traffickers. A brief description of the ‘cruise’ may be necessary to grasp the desperation of the people attempting it: they are loaded on purpose-made, one-off, inflatable boats with no keel, only fitted with unconnected plywood boards. These boats, which typically carry 40-60 people, are fitted with unbranded (home-made by Turkish ‘technicians’) motors of no more than 15 horsepower and limited petrol. Hence, their navigation capacity is very limited, both time-wise and weather-wise; they are washed ashore anywhere the weather takes them. Turkish traffickers either do not embark at all or disembark from these ‘boats’ while still in Turkish territorial waters. They ‘train’ a captain on the spot and they also give him a knife in order to sink the ‘boat’ once in Greek territorial waters if approached by a Greek or FRONTEX boat; in this way they have to be salvaged and they do not risk being reconducted, with their boat, back to Turkish waters. The cost of the trip is 1.200 per capita (this covers only the maritime passage, not the trip leading to the Turkish coast). Special prices are being made for babies. Most interestingly, special prices are offered for those who are willing to attempt the passage in bad weather (!);[2] Adam Smith’s ‘invisible hand’ could not miss out this market. The above ‘facts of life’ (or death!) stand for some qualitative findings. First, given that most Syrian families are quite numerous (with a birth-rate of about 2,64/100[3] and polygamous unions), the cost of the passage operates a ‘natural selection’: only better off families or individuals can afford it – at least under the normal market (and weather) conditions. Which, in turn, explains that there is still demand for the passage despite the worsening weather conditions – at risk of life. The high price of the ‘Greek cruise’ also means that several families who cannot move all their members, are split at the Turkish border, thus leaving unattended children (or children loosely attended by other family members); typically children will be sent to the EU rather than remain stranded in Turkey. A third effect of the high cost and the risk of the passage is that, for a long while, it has acted as deterrent to a large mass of asylum seekers. Thus, while in the beginning of the summer arrivals comprised many young, fit, educated, well-off individuals or couples, nowadays the sheer mass is composed of families, very young children and infants (even of few weeks old), pregnant women and elderly people. This may be explained by the network theory, i.e. the fact that family members or other acquaintances already in European countries attract the rest towards the same destination. The fact, however, that people who have so far shunned attempting the perilous and expensive passage decide to undertake it under worsening weather conditions, shows that their desperation has now peaked. This may be connected to the facts that a) every big power is somehow militarily active in the area, b) the use of chemicals have been spreading, c) the practices of the IS have been emboldened. Indeed, many of the (few) people with whom the communication in English was possible complained about military operations unaccounted for by the western media. What is more, the ‘risk’ that the EU reaches an effective agreement with Turkey, which would then be responsible for setting up organised refugee camps for those already in place, increases pressure on asylum seekers to attempt the crossing. A more practical aspect connected to the way the ‘Greek cruise’ operates, is that most people upon their arrival have minimal, if any, personal possessions. Typically they travel wearing as much as they can and carrying a backpack and/or their infant/children. Often backpacks (and occasionally children) are thrown into the water. Setting any psychological trauma aside, these people are in immediate need of everything: from dry clothes and underwear, to shoes and coats, and from toothbrushes, diapers and sanitary pads to basic, or indeed, medication for chronic conditions. Even those who arrive with all their wardrobe are hardly prepared for the weather conditions they are going to face in central and northern Europe. A final, and yet very important, point, is that asylum seekers lack any information about what to expect in Europe. For them, reaching the coast of a Greek island is salvation, since they are in Europe. They do not know that this is the first step of a very long trip with many too many hurdles. Greek authorities After a period where the public authorities seemed stunned by the sheer numbers of incoming asylum seekers, nowadays each actor active in managing the flows (port police, police, medical services, municipality) have found their pace. This is not to say that everything is always dealt with in an efficient and seamless manner. One has to recognise, however, that the public authorities have now clearly defined their respective scope of competences and duties. Although some tensions may not be avoided between the authorities and asylum seekers, overall the presence of the authorities is discreet, polite and helpful. In Samos, for instance, each time this is possible, the police van goes to the bays where refugee boats have been washed out and offers to transport children, elderly people and pregnant women to the port, where they will be offered medical assistance, dry clothes etc.; where such transport is not available asylum seekers have either to walk (several tenths of kilometres), to hitch-hike (most locals do stop) or to pay a taxi (taxi drivers over-charging have been recalled to order by their colleagues). Every morning police, with the help of English-speaking asylum seekers and/or UNHCR interpreters, records personal data and takes pictures of the asylum seekers, in order to be able to issue some kind of documentation for them. When the personnel is enough and the number of asylum seekers low, police also manages to take their fingerprints on the spot. When this is not possible, police gives asylum seekers an appointment with the central fingerprint service, in Athens, a couple of weeks later; needless to say, very few asylum seekers appear to this appointment since most of them are under pressure to reach their final destination in northern Europe. Also impressive is the medical presence assured by the Greek State, especially given that doctors sent on location typically originate from the very island concerned and have an extra incentive to offer. Although international medical organisations are strongly present (see the following point), these tend to focus more on their respective areas of expertise (e.g. WAHA on women’s health) and to work specific hours; the local doctor offers all-round, around-the-clock regular and emergency consultations and treatments. Yes, there is only one (state) doctor for the 1.000 -2.000 daily arrival. In parallel with all the other authorities, and also where everything else fails, the municipality steps in in order to secure the basic welfare of its population – and of asylum seekers. International organisations The efforts of the Greek authorities would in no way suffice, were they not complemented (and occasionally substituted) by those of specialised international organisations. First and foremost, the know-how, coordination and material support of the UNHCR is invaluable. They offer tents, mats, rugs, prefabricated buildings, interpreters and, most importantly, know-how and organisational skills. However on an island like Samos, the UNHCR has a presence limited to four people. All major medical organisations and associations are present. The Red Cross, both national and international, the Médecins sans frontières, the Médecins du monde, the Women and Health Alliance International (WAHA), have all assumed responsibilities. Although they have succeeded, to a large extent, to coordinate their actions and to avoid duplicating their efforts, their respective constitutions, underlying ideologies, priorities, protocols etc. do not always allow for perfect complementarity. Hence, some wastage of resources is unavoidable. Given that the Greek State has a dedicated medical doctor and that Samos has a fully operating public hospital where serious conditions may be deferred, these organisations and associations have mainly sent nurses as well as medical material. Voluntary work More impressive than anything else is the voluntary work offered by all sorts of people and/or organisations. Local people help in manifold ways: they have emptied all their cupboards and storerooms from old clothes and shoes; they inspect on a daily basis the rocky coasts most ‘visited’ by refugee boats and help them disembark, offer them first aid and call for assistance; they prepare and distribute sandwiches, cakes, fruit and milk. With time some of them have been organised into teams and/or have created voluntary associations. They are helped out by non-Greek individuals and/or associations, with greater experience in handling humanitarian crises. Hence, eg the Danish association ‘Friendly Humans’, brings together Danish spouses of Samian men, receives donations from Danish, British, German and Greek people alike and gives out food and milk, diapers and sanitary pads, clothes and shoes, tents and sleeping bags. Next to them other bigger or smaller associations – and indeed many individuals – are extremely active in offering food and help, cleaning up the port, playing with the children, assisting people to go through formalities etc. Although all parties, official and unofficial, involved in the management of the asylum seekers try to coordinate among themselves on a weekly basis, coordination could still improve, especially among the volunteers. Another problem is that, while people readily give out their old clothes, shoes etc. or, indeed, buy and offer brand new ones, very often they are not aware of the true needs of asylum seekers (thus offering bikinis, western-like underwear, short skirts, suits, ties etc.). Proposals In view of all the above, few things the EU could do in order to save lives and ease the management of the asylum seekers crisis, on the European side of the borders, could include the following (it goes without saying that the only real solution to the problem lies outside the European borders, in Syria, Afghanistan etc.):

  • Regularly patrol Greek territorial waters at the borderline with Turkish waters, in order to limit the duration and perils associated to the ‘Greek cruise’;
  • Alternatively, ask the Greek Government to bring down the fence they have built on the northern crossing of the river Evros, in exchange for more border-guards who would be able to intercept and guide asylum seekers to Greece’s northern border (with FYROM), from there to continue their way up north;
  • Strengthen Greek police with personnel and fingerprint scanners, so that they can accomplish on the spot, upon arrival, the full identification and registration of asylum seekers;
  • Ask international agencies and organisations, such as the Red Cross, as well as the different medical associations, to strengthen their presence on Greek territory; offer funding, incentives or other facilities to that effect;
  • Fund, or even better, materially help with the installation of better facilities for hosting asylum seekers, especially in view of winter’s knocking in: prefabricated houses, tents and portable toilets should be made available;
  • Try to mobilise public opinion and volunteers around Europe, pool them and put them into contact with volunteer associations already active in the field; offer some material support to and coordination between volunteers;
  • Setup an internet platform, where people wishing to offer goods, would be able to find out what is needed and where; and whom they should contact in the different places.
  • The same or a different platform could be offering information and advice, in Arabic, to the attention of asylum seekers; and a further platform could help separated family members to locate one another and reconnect.

Until any of the above is undertaken, we can sit back in our couches and enjoy our status of European citizens and the privileges, in terms of security and comfort, that this endows us; while at the same time an ever increasing number of refugees will be drowning or freezing to death. Indeed, if citizenship marks the border between ‘us’ and ‘them’, this is one of these occasions were all of ‘us’ can be of use to many of ‘them’; it is not only through the exclusion of the other, but also through common positive action towards the other that citizenship may be substantiated. [1] http://www.unmultimedia.org/radio/english/2015/11/unhcr-218000-refugees-.... [2] http://www.bbc.com/news/world-europe-34682034. [3] http://www.indexmundi.com/facts/indicators/SP.DYN.CBRT.IN/compare?countr....

”Where there is a will - there is a way”; a heated debate about access to education for children of migrating EU-citizens in Sweden

By Sara Stendahl and Otto Swedrup, October 12, 2015

Recently, there has been an ongoing debate among NGO’s, government representatives and legal scholars regarding access to education for children of migrating EU-citizens in Sweden. This debate has reached ministerial level calling for the Minister of Justice to issue a statement on the matter.  

The main focus of the debate concerns whether or not children of migrating EU-citizens (mainly individuals of the Roma minority originating from Romania and Bulgaria) should have access to education in Sweden. Poverty, structural and systemic injustice constitute the main reasons why these individuals leave their home countries to find work and often survive meantime by begging or collecting deposit cans. These migrating EU-citizens sometimes bring their children along with them. The families stay in Sweden for a couple of months and then often travel back home. Accompanying children traveling to Sweden is a relatively new phenomena, and Swedish municipalities are facing the question of whether or not these children should have access to education (primary and secondary school) whilst staying in Sweden. Many contested interpretations of the Swedish Education Act have been presented in order to answer whether or not access should be given.  

One interesting aspect of this debate is that it has become a debate on whether or not these children have a right to education, while staying in Sweden. In this discussion references are often made to the fact that the parents are not lawfully residing in Sweden since they do not have right of residence. This assumption, rather than assessment, is made because many of these individuals have a hard time finding jobs, and therefore cannot be seen as economically active under Directive 2004/38. The discussion has gotten so entwined that the conclusion made by government officials is that because it is difficult to make an assessment of the parents right of residence - these children cannot be entitled to education, with reference to equal treatment.  

In 2013, the Swedish Education Act was amended in order to insure the right to education for children of undocumented migrants. The government made it clear that no child living in Sweden should miss out on schooling, regardless of the legal status of their parents. However, at the moment it seems the right to education for children of undocumented migrants is, in practice, better protected than that for children of migrating EU-citizens.  

As social rights go, how strong is the right to education for children if there doesn’t seem to be a will of finding legal basis for granting it? In this case, the unwillingness for pursuing an argumentation that would enforce a social human right so widely enacted, unfortunately seems strong.  

(For more on the right to education for Roma Children, see Koch, Ida Elisabeth., The Right to Education for Roma Children under the European Convention on Human Rights, On-line Festschrift in honour of Katarina Tomaševski, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund 2010.)

Vulnerable Citizens in the EU, a border line between Policies and Law

By Luis Antonio Fernández Villazón, October 1, 2015

In the last few years the EU Institutions have adopted several instruments that highlight the necessity of giving special protection to “vulnerable groups” or to “the most vulnerable”. That is the case with the Europe 2020 Strategy; one of its flagship initiatives is the European Platform against Poverty. The Platform aim is “to ensure economic, social and territorial cohesion”, working at EU level “to design and implement programmes to promote social innovation for the most vulnerable”. The Platform establishes a dynamic frame of action with different policies and the “ambitious aim of reducing poverty and increasing inclusion”. It identifies several groups of the most vulnerable, like children, the elderly, ethnic minorities, people with disabilities, etc. These are the EU answers to the consequences of the economic crisis that have had the most impact on the most vulnerable. The question is strongly related to EU citizenship. Combating social exclusion, promoting social justice and fundamental rights have long been core objectives of the European Union. In that context, solidarity must be a relevant component to the concept of citizenship. Vulnerable groups find more barriers and obstacles to exercise their citizenship rights and, in fact, they could become “lesser” citizens than other people or (paraphrasing our title) they could be considered “vulnerable citizens”. The European Commission does not ignore this and, in its last European Citizenship Report of 2013, establishes six key areas of action. One of them is “Protecting the more vulnerable in the EU”. All these measures are based on the idea of policy coordination between EU Institutions and the member states in the frame of the “open coordination method” of European social policy. From a legal perspective, we can describe them as part of the so called “soft law”. At the level of more traditional “hard law” (that establishes rights and obligations that are enforceable before tribunals) the concept of vulnerable groups has a more discrete existence. We can find in the European Treaties, Regulations and Directives previsions that have effects to the situation of some groups of people who are vulnerable (like the rights of persons belonging to minorities mentioned in art. 2 TEU or the protection of the rights of the child in art. 3 TEU) but the general concept of vulnerable groups is not specifically formulated, with the only exception being Directive 2008/115/EC of 16 December 2008, on common standards and procedures in Member States for returning illegally staying third-country nationals (and only for the purposes of this Directive). In the case law of the Court of Justice of the European Union the situation is very similar. There are several judgments about affairs that directly affect people in a vulnerable situation but the term “vulnerable group” is not used in any of their considerations. It only appears in some Opinions of the Advocate General and only as an illustrative argument (see for example Opinion in affair C-303/06, S. Coleman) This is the moment to put forward the two following questions: Could “vulnerable groups” go further than the policies context and become a whole law concept with legal consequences in EU Law? Would this be a desirable aim? For the first question the European Court of Human Rights (ECHR) has given the answer. Effectually the Strasburg Court, in the frame of the European Convention of Human Rights Protection System, is developing a concept of vulnerable groups with direct consequences in its evaluation of the existence of human rights violations. This has happened in cases concerning Roma, people with mental disabilities, people living with HIV, and asylum seekers. The concept used by ECHR is relational (because it views the vulnerability of certain groups as shaped by social, historical, and institutional forces), is particular (in the sense that these people are particularly or simply “more” vulnerable than others) and is harm-based (the existence of harm, being in the form of prejudice and stigmatization or of social disadvantage and material deprivation, is basic to determine vulnerability). That construction introduces an asymmetrical approach in the analysis of equality that centers attention on substantial equality and ”particular” disadvantages suffered by the members of an specific vulnerable group (for a deeper analysis of ECHR case law see Peroni, L, Timmer, A., “Vulnerable groups: The promise of an emerging concept on European Human Rights Convention Law”, I•CON (2013), Vol. 11 No. 4, 1056–1085) Would it be desirable to adopt this ECHR case law by the European Union Court of Justice? Answer to this question is not so easy. On one hand, the ECHR concept of vulnerable groups is welcome, because it introduces slightly more objectivity in the resolution of affairs that always have a subjective component. On the other hand, the concept of vulnerable groups is not free of risks. Paternalism, stigmatization of people belonging to these groups and the possibility of competence between groups for the recognition of their vulnerability are some of them. In fact, we are faced with an interesting and suggestive concept that should be used carefully. We have to be prepared for it. It must be remembered that “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental, Freedoms, (…), shall constitute general principles of the Union's law” (art. 6.3 TEU). In this context, the reception of the vulnerable groups’ concept by the Court of Justice is only a question of time.

Long months’ unfinished journey into the dark: the refugee crisis from Budapest

Orsolya Salat ,September 16, 2015

You saw the pictures of active police mistreatment and of sheer and simple official abandonment. Hopefully, by now you also saw the pictures of wide-spread volunteer help.

There is an immense amount of information, analysis and evaluation over the refugee situation in Hungary in the media in recent days (in fact, it should have been weeks or months). Much of the information is correct, but some of it is certainly missing, misleading or false.

In any case, this post wishes to give you an (my) insider’s perspective, necessarily subjective, and emphasizing elements which might not be already known to you. This blog has been in the writing for more than ten days by now, because things were changing so fast that it could never be finished. Considering legal changes which entered into force on 15th of September, the situation might drastically change again.

 
<h1>Context</h1>
As a starting point, recall, that the government sent out in March a national consultation letter ’on immigration and terrorism’ (none of which exists in Hungary) with directed questions, which is a must-read to everybody who wants to understand the situation.<a href="#_ftn1" name="_ftnref1">[1]</a> Then, as people did not send back their replies because they could not care less, the government started the poster campaign. ’We don’t want any illegal immigrants’—a smiling blonde young woman says on billboards which are supposed to advertise that ’Hungarian reforms are working.’ Similar messages have been out on billboards for months by now.<a href="#_ftn2" name="_ftnref2">[2]</a>

The government surely uses the crisis for political purposes, it already did before the crisis even broke out. This governmental stance is however not unusual in Hungary. The Hungarian government often does not want to solve crises: it does not want to fix the imminent and ongoing crisis of the poor, of the Roma, of homeless people, of the health care system, or of the school system, let alone such longer term issues as the pension system. Large numbers of Hungarians live in similar or worse conditions and have not more prospect than many of the people you saw on the pictures from the Keleti railway station (this of course does not mean that the vast majority of them are not fleeing places a thousand times worse than Hungary). Equally similarly, many of them want to leave the country, and many did already. A friend of mine, wondering where the unprecedented outpour of solidarity in this generally egoistic/apathetic society comes from, wrote: Hungarians rescue the people from their own homeland, because they know what place it is, and do not wish anyone the experience of having to live here. As if we all agreed: if we are already stuck here, then at least those who had gone through the horrors of war, deserve a better place than this ugly mess called Hungary. Anyone who can, should leave this place, the sooner, the better. Of course, this is a stance shared by the refugees, and this is a stance which does not fit well with the European asylum system – if it can be called a system at all. There is also a lot of misinformation among the refugees: many of them believe they cannot submit an asylum request in Hungary at all. Volunteers face a weird situation: they inform refugees about the possibility without really being convinced about the rightfulness of such an advice. Many refugees, on the other hand, do not want to give fingerprints, and do not know that this is required by EU law, and is not a fancy of the Hungarian authorities.

The minister for internal affairs just published that this year, Hungary has granted 88 refugee status, among them 12 for Syrians, and granted asylum protection to altogether 300 persons.<a href="#_ftn3" name="_ftnref3">[3]</a> 155&nbsp;484 asylum requests were registered, but more than 170&nbsp;000 people crossed the border. 1914 requests were rejected, and in 64&nbsp;696 cases asylum procedures were suspended or terminated, because the applicant disappeared.<a href="#_ftn4" name="_ftnref4">[4]</a> Until the end of August, 973 persons were returned within the Dublin system, but ’communications about returns affect more than 26&nbsp;805 persons’.<a href="#_ftn5" name="_ftnref5">[5]</a> In a typical Newspeak, the minister adds: ’the number of prepared transfers is currently 923’.<a href="#_ftn6" name="_ftnref6">[6]</a>

&nbsp;
<h1>The Government</h1>
For the government, this is a security and public order crisis, just as the presence of homeless people in Budapest was a security and public order crisis. The official justification for the bus transfer on the 4th of September from the train station in Budapest to the Austrian border was that the government has to secure that public transport operates and the roads can be used. On the 3rd of September, the Prime Minister posted on Facebook a photo on which he’s reading the newest pro-government newspaper. On the evening of the emergency transfer, when every police officer in the country was on service, and many bus drivers were doing a 10 hours overwork, he was watching the Hungary-Romania football play (which also those ultras watched who attacked the refugees in the station beforehand, and burnt cars and destroyed property afterwards, as the police professionally closed down the station area from them). In the meantime, the Minister for Internal Affairs was on holiday. Four days later the prime minister went to the border, and found that the fence was not being built fast enough, for which he scolded the Defence Minister, who in turn resigned. Parliament adopted a law that makes the illegal crossing of border a crime, and that enables the government to declare a crisis arising out of mass migration (accompanied by vaguely defined powers), and it will adopt further legislation which allows for the use of the army.<a href="#_ftn7" name="_ftnref7">[7]</a> The new Defense Minister apparently ordered the mobilisation of the army, which, under chaotic circumstances, managed to complete the fence for 14th of September.

Public media (completely under government control) call the refugees illegal immigrants, which is particularly absurd as they do not intend to immigrate to Hungary, only to cross it, do not show pictures of children (’protection of minors’!), report widely about the trash left behind by them, and how stinky it is at the station, and so on. The message cannot be any clearer: the Hungarian government does not want to solve this humanitarian crisis. Orbán really does not want any of these people. It is that simple. It is time that you, Western Europe, believe it.

The other problem is, of course, that the Hungarian government cannot possibly solve this crisis when it needs to be solved: right now. It cannot possibly host these many people and process these many claims right now. Maybe or even likely, it could have, had it wanted to, and had it prepared accordingly, but, as mentioned, it never wanted to. This question is in any case already moot. Europe, including Hungary, keeps essentially waiting until the images of the first dead children from Hungary start appearing. <em>That’s a sentence I wrote a few days ago. Today, 15th of September, the fence is ready, the laws which in principle preclude 99% of arriving people from getting refugee status, entered into force. Therefore, now we are waiting for the images of the first dead children from the border of Serbia. </em>

&nbsp;
<h1>Police</h1>
I am aware Hungarian police have a bad reputation nowadays. There were certainly cases of severe police abuse, and there are certainly more to come. It has a lot of systematic causes though. Currently, the police, who were anyway not exactly prepared for this kind of activities, are extremely overwhelmed. There are policemen who have been working for 46 hours. Police sometimes also do not get sufficient food, so now volunteers who have been providing the refugees with food and water for three months, started collecting and distributing to police.

In Röszke, a new reception center (a fenced camp with heatable tents) was opened, but it can only host around a 1000 persons. The rest, between a few hundred and a thousand, depending on the day, stayed outdoors at night, in inhuman conditions, in mud and cold. Human trafficking became so lucrative that cigarette smuggling basically stopped near the border with Serbia. Police obviously face a choice: either they try processing asylum claims and handling the mass of people, or go after the smugglers. Any of these tasks alone would overwhelm the police, let alone the two at once. <em>We’ll see if that goes better with the closing of the fence and with the ordering of around 4000 soldiers to the border.</em>

In any case, the overall police behaviour is by far not so negative as you might believe from the international media. Police did an extremely good job of protecting the refugees from extremist football fans at Keleti station. They also quite professionally supervised the boarding of West-bound trains, in close cooperation with volunteers on the spot. They provided protection to already registered asylum-seekers who attempted to reach the Austrian border on foot. There are no signs of widespread, systematic police brutality. There are refugees who thank police for the help they received. The Hungarian Helsinki Committee issued a statement in reaction to the outrageus scene leaked from Röszke (where police officers were feeding refugees like animals) begging the government not to shift all responsibility to the ordinary police officers working there, but to live up to government responsibility in preparing police for the tasks and creating human conditions where police can work.

&nbsp;
<h1>Independent Media</h1>
Independent, i.e. non-state, and not pro-government, press follows closely what’s going on on the main spots. Some provide a live coverage, reporting every few minutes or hours for weeks by now. They generally provide a balanced view and try interpreting the situation. Some journalists get emotionally dragged with, and stay on the spot even after their working hours, and become volunteers.

This all, naturally, does not apply to extreme right wing media outlets and journalists, such as the camera-woman who kicked a father with a son.

The media often face problems in accessing the spots, especially the inside of refugee camps remains largely closed from journalists. The infamous Röszke ’feeding scene’ likely would not have happened, had the media been present.

Of course, there is a lot of fear mongering. Security experts – among them secret agents from before 1989 who now seems to share the views of Orbán – discuss on TV how likely it is that IS terrorists arrive with the refugees. Others intimate that the refugees might bring in all kinds of diseases, even though even the Hungarian health authority declared there was no danger.

&nbsp;
<h1>Civil society</h1>
Volunteers and activists are on the verge of their capacities. Hundreds of them have worked basically uncessantly since the beginning of July or so, thousands in the recent weeks. They do what the state should do, but their capacities are limited, and especially in terms of organization, they cannot solve the crisis either. Just to give you an impression of the sheer quantity of the cooperation let me give some examples.

On Facebook there are at least a dozen of different groups with at least a thousand (and some around ten thousand) members dealing with specific tasks in the civil refugee care system, because it is in fact a system already. There is a general work distributing group where you can fill in excel sheets whether you are available to make breakfast, cook lunch, or are able to give out tea at night, or where you can see at which point there is a need for manpower, eg that there is not enough persons at the place where donated clothes and shoes are organized. There is a recurring problem that people not familiar with excel delete some important information. There is also a recurring problem that people start sharing their views on government policy: for this purpose, a separate ’discussion group’ is instituted. Still, newcomers to the main work distributing group regularly bring up issues related to the refugees, but not directly related to work to be done.

This main page has an English-speaking counterpart where the expats of Budapest and other foreigners gather. There are separate Facebook groups for different locations – one for each railway station in Budapest, and one for the Szeged railway station, and several others for the main border towns. There is a specific group of volunteer doctors and medical personnel. Volunteers had prepared, translated and printed information leaflets in ten languages, and even prepared a smartphone application which provides updated information.

An extremely important group coordinates the buying of train tickets from Budapest till the Austrian border. People (also many Hungarians who live abroad) buy the tickets online, and send the codes per sms to a volunteer on the spot, who prints them out by the machines and hands them to the refugees. The exact numbers are not known, but it must be around several hundreds of tickets bought this way per day for sure. They planned designating a specific phone which one volunteer gives to the next when she leaves, because ticket buyers cannot follow to which number to send the codes at which point of time. Note that the Hungarian railways require refugees to pay for the trip till the border, even though sometimes it is not possible to check the tickets, because trains are so full, or the police supervise the whole process. There are reported cases when railways employees sold fake or overprized tickets to refugees.

There is a specific group organizing transport of food, water, clothes, blankets, tents, and medication from the Budapest storage centers (well, private basements and other locations handed over by private entities) to Röszke. This has become extremely important as with the opening of the Austrian border the center of the crisis has moved from Budapest to the Röszke camp and collection point, where people caught on the border are first transported. At one point, too many volunteers travelled to Röszke, brought too much donation, and in general created a chaos. The Szeged volunteer group who had been very active for months and managed to establish a good relationship with police on the spot, currently begs everyone <em>not</em> to undertake individual trips there and distribute food and clothes, because they are afraid that the anyway overwhelmed police will simply close down the area for volunteers. In one message, they were especially upset with some German anarchist groups who rejected every coordination effort.

During the hardest week in Budapest so far, when thousands of refugees were camping at the stations in the extreme heat, people offered refugees to take a bath at their place, wash their clothes, etc. A separate group organized overnight stays for those willing to host families for a night or two in their own home.

Thousands of people ordered online from Tesco and other supermarkets to deliver to specific addresses where volunteers organize, cook, and distribute. Thousands brought food, clothes, shoes, etc. in person. As these are all grass-roots, informal communities, they are not allowed by law to collect financial contributions, which creates a huge coordination problem. The exception is a pharmacy which has an adjoining foundation and is thus able to receive donations and spend them on medication. Volunteer groups issue every day updated information about what is needed, and, importantly, what is not needed for the moment, and cannot be stored. Still, the situation changes so quickly, that storage facilities need be emptied in a matter of hours sometimes, and then again it turns out that basic food or water is lacking. In general, there is a problem with storage space, and this is something which could in fact efficiently be only done by the state. However, the Hungarian government has not offered storage facilities, let alone cooking facilities, or anything else. The government’s standpoint is that it is only obliged to provide for those who are already in the refugee camps. Towards those who do not want to go in the camps, the state has no legal obligation. This is a very hypocritical stance after very strong government messages on how Hungary does not welcome refugees. Volunteers need to make up for that, what is more, by changing strategies in very short time. While until the 4th of September, the biggest problem was water, food, and hygiene at Keleti station, the last week the efforts were directed towards saving people from hypothermia by bringing blankets and hot tea. There were intense discussions on whether to buy less, but thicker blankets, or more but cheaper and thinner ones. The rain in the last week brought new challenges, and if you think it is easy to collect thousands of raincoats by individual donors on a daily basis, then you should spend a few days in the storage rooms selecting the clothes which arrived. Similarly, for a few days, there was a race with time to get enough reflective vests – and in proper sizes – for the thousands who were walking in the dark, rainy nights on the road towards Austria. Lately, notably, they are transported from the Röszke collection point over Győr to Vámosszabadi, a camp. However, as they do not want to go to the camp (not that they would fit in….), they walk back to Győr and board a train to the border. It is a ten kilometre walk in the dark, busy road – that’s why you need the reflective vests urgently. But, of course, you wouldn’t need them, would the state not oblige police to transport people till Vámosszabadi, but let them get out in Győr. That is at the same time a good illustration of a problem created by state incapacitation, state inactivity, and EU asylum rules. The victims of this hypocrisy are the refugees, or by the way anyone who might get into an accident because of walking masses in the dark.

A lot of legal uncertainty surrounds these activities, partly arising out of lack of information. The Hungarian Helsinki Committee, the number one refugee rights NGO, disadvised people from giving a lift to the refugees, since that might count as human trafficking, or from lending their cell phones, since if they call smugglers, the owner of the cell phone might become criminally responsible.

&nbsp;
<h1>Checks and balances</h1>
There is much talk in media about the hypocrisy of the EU in handling the refugee ‘crisis’ – which ought to be no crisis at all in the first place in such a rich and big community. There is less talk about how the situation in Hungary is the unsurprising result of the last five years’ constitutional destruction, completed by a prominent member of the European People’s Party. Note also that this member cooperates very smoothly with the extreme right wing Jobbik in adopting emergency anti-refugee legislation in the recent weeks.

The Ombudsman has not said a single word about the refugee situation until the 11<sup>th</sup> of September, i.e. for at least two months. After human rights NGOs had widely criticized his silence, he issued a statement expressing how challenging the situation is, and most important is to handle it in a humanitarian way. He does not have a single word of critique towards the government, and has not uttered any intention to submit recent legislation to constitutional review (not that that would necessarily help as the Constitutional Court now operates with a majority elected solely with the votes of the government parties, except in the case of one judge, who was also supported by Jobbik).

The President of the Republic signed the laws – some of them clearly unconstitutional, if for no other reasons, then for their incompatibility with the Geneva and Rome conventions – without any hesitation, even though he would have been entitled to turn to the Constitutional Court instead. It is illustrative of the system devoid of any checks and balances – with which the EU fully cooperates – that the government launched its campaign warning the refugees that illegal crossing became a crime<a href="#_ftn8" name="_ftnref8">[8]</a> already before the President of the Republic promulgated it.<a href="#_ftn9" name="_ftnref9">[9]</a> Of course, the government was right: it did become a law.

&nbsp;
<h1>Recent developments on 15th of September</h1>
As of today, the legal context of asylum drastically changed, among the changes here mention is only about the ones directly relevant to refugees. Many other changes rather aim at simply giving more powers to authorities to control the life of Hungarians, i.e. a usual mechanism of emergency laws is at work here, about which there will certainly be more talk in the future. But this post is not about the restriction of rights of Hungarians. As to refugees: the illegal crossing of border became a crime, with automatic expulsion. Thus, if you come through the fence, you will be detained, tried, and expulsed. The point of the criminalisation was in fact the possibility of expulsion (refoulement in fact). In these procedures, the right to use a language one understands is not anymore guaranteed: decisions and official papers are all in Hungarian. Minors do not have the special status they normally enjoy in administrative and penal procedures.

Furthermore, as Serbia is declared a safe third country, people who enter through the official border entry points are returned, unless they prove they have launched an asylum application in Serbia, which was denied there (refoulement also in these cases, as according to the UNHCR Serbia is not a safe third country).

Therefore, the Hungarian government simply wants to deter refugees from entering its territory in any way, and wants to push back most of them to Serbia. As Serbian authorities are not prepared – and do not seem to start preparing, despite sometimes making big statements about human rights -to provide for the refugees who now are stuck in their country, disaster is close. The Hungarian Prime Minister already expressed at least ten times in different media that he expects violence on the border, and soldiers will need both their muscles and hearts to fulfill their tasks, etc.

In the meantime, the„crisis arising out of mass immigration’ was declared in counties close to Serbia.

Refugees started a hunger strike next to the official entry point. Thousands – a number which might easily reach ten thousands by the time this blog is posted – are trapped behind the border. Now Hungary has official opening hours, and by the time the gate was opened, a lot of people gathered, and they are let into Hungarian territory very slowly. When they got in, they are handed a paper in Hungarian, according to which they request that in their individual case, Serbia should not be considered as a safe third country. Sixteen persons already got their asylum request rejected (in two hours), reasoning that they came from a safe third country, i.e. Serbia. The rejection comes with an one-year entry ban valid in the entirety of the Schengen area. People start threatening with suicide, while the hunger strike is ongoing. Several refugees who fell ill were taken by Serbian ambulance cars. Volunteers on the spot are both asking for help, and begging that if you are not in the strongest mental and physical state, please, do not come, since the situation is extremely tense.

The Minister for Foreign Affairs declared we’ll build a fence also on the Romanian border. Croatian authorities advised refugees not to cross Serbo-Croatian border except on official entry points, as there might still be mines from the war. The European Commission allegedly started to examine the new Hungarian laws today. Angela Merkel keeps talking about the importance of human rights and safe borders.

This is the state of affairs on the 15th of September in the early afternoon.

What to do about refugees - in 50 words

Bridget Anderson, September 4, 2015

Five thousand people in Calais wanting to cross the Channel to the UK has meant my inbox is overflowing with invitations for interviews and top lines on ‘what is to be done’. What is striking about these requests is how many ask for brevity. ‘Tell us what you would do about Calais in 50 words. Be as specific as possible’, asked one journalist. The flood of requests (or perhaps I should say ‘swarm’) encapsulates what I find to be a real dilemma working in the field of ‘migration studies’. On the one hand we are fortunate. It is far easier for us to demonstrate ‘impact’, to engage in policy debates and contribute to informing public opinion, than it is for many scholars, and we have plenty of opportunities to step outside the ivory tower. But on the other, we risk different forms of vacuity, shrilly opinionated or tediously technocratic. It is hard to engage with public opinion by starting a sentence with ‘It’s very complicated…’ However the challenge runs deeper than that, because responding as a migration expert can reinforce unhelpful framings, and the Calais case is a good example of this. For casting this as a ‘migration problem’ is largely missing the point. Rather the fact that people are stuck in Calais is a symptom, a consequence of foreign policy that has resulted in the proliferation of wars at Europe’s edges, economic systems that render the lives of many people in the world unsustainable and impoverished, colonial histories and post-colonial presents, and the very nature of Europe and the European Union. Foreign Secretary, Philip Hammond, recently speaking to the BBC opined: “The gap in standards of living between Europe and Africa means there will always be millions of Africans with the economic motivation to try to get to Europe…So long as there are large numbers of pretty desperate migrants marauding around the area, there always will be a threat to the tunnel security.” The global inequality gently signified by ‘gap in standards of living’ is not a natural state of affairs. The founding document of the European Union, the Schuman Declaration, proclaimed, ‘With increased resources Europe will be able to pursue the achievement of one of its essential tasks, namely, the development of the African continent’. As Hansen and Jonsson (2011) put it: ‘the origins of the EU cannot be separated from the perceived necessity to preserve and reinvigorate the colonial system’.  Seeing this complex interaction of pasts, presents and futures as a problem of ‘migration’ is impossibly limiting. It also suggests that migrants are the source of the problem. Indeed, the term ‘migrant’ has become toxic in recent months, becoming increasingly equated with ‘illegal’ and ‘bogus asylum seeker’, terms that migration scholars have consistently challenged and rejected. But what are we to do if the term at the very heart of our intellectual engagement becomes a dirty word? I think we have something to learn here from critical criminologists who have faced this problem for a long time. Like them, those of us who study migration are complicit in the production of certain types of policy subjects, and have to struggle against the institutional mechanisms that encourage us into a purely policy driven agenda. If the differentiation between migrants and citizens is key to many of the challenges faced by migrants, then our engagement makes it difficult not to contribute to the production of relations and subjects that are part of the constitution of the ‘problem’. One way we can respond to this is by thinking about migration as a lens as well as a subject of study, a lens that offers insights into ‘us’ as well as ‘them’, and enables us to make connections between migrants and citizens rather than reifying their differences. This does not mean that we should withdraw from research that engages with the lived situation of migrants today. Bleating on about colonial history and foreign policy is small comfort to those confronted with the situation in Calais. So here, in 53 words, are my suggestions for responding to it. The source of the Calais problem includes wars, global inequality, and people having unsustainable lives. I would

  • Work with the EU to facilitate ‘burden sharing’
  • Open reception centres in UK and N. France
  • Finance local government and groups to facilitate integration

alongside investing in UK people and public services, and changing foreign policy.

A noteworthy aspect of the Right to housing

Leopoldo Tolivar Alas, August 4, 2015

In Spain, European citizens have the same right of access to housing as Spanish nationals, provided they are registered on a municipal housing register, and under the same conditions and with the same standards as the latter. There are no differences with aid for nationals; i.e. in Autonomous programs for access to housing for young people. Social housing in Spain is linked to emergencies rather than something that newly arrived foreigners  can avail of, which in fact represents a weakness of the system itself. Following local reform made by Law 27/2013 dated 27 December, municipal powers over local services have been reduced for municipalities with more than 20,000 residents to the evaluation and information regarding social situations and immediate need of people at risk of social exclusion, where the Autonomous Community are dealing with other tasks as well as housing policies. There may might be a greater difference in access to these policies depending on the region where the foreigner arrives, be it from the EU or another location, owing to nationality (a debatable question in itself), but one which is a necessary consequence of the exclusivity powers of the Autonomous Communities. There are also differences depending on the status of university students, both citizens of the EU and from outside the EU, who arrive to Spain because certain universities have programs and facilities (mainly residential) for accommodation for Erasmus students or other exchange programs, as well as for teachers and researchers, although what is available is neither widespread nor comparable, in terms of extension, foresight and excellence, in the case of teaching staff, with certain European universities which are paradigmatically receptive to the temporary incorporation of foreign researchers and teachers. Conversely, despite the desire to witness a knock-on effect known in later years of immigration, which often begins illegally, the Spanish state and, in this case, the Autonomous Communities system, in the absence of competence in immigration matters, does not discriminate against non-EU citizens, particularly those  long-term registered residents (five years plus), when it comes to access and enjoyment of benefits and rights such as obtaining ordinary rent, following certain proceeding culminated in a draw, for decent housing or lines of funding from banks. On the contrary, these people can benefit from an not uncommon double protection, which in effect represents a positive discrimination: firstly, from the social services, and then, subsequent to obtaining residence, a drawn-out process in itself, from the equalization of Spanish and European citizenship when applying for housing or funding sources for the purchase of a property.

Europeanization of Policies without Political Change: Implementation of Long Term-Residents Directive in Croatia

Vedrana Baricevic, July 16, 2015

In the reform of immigration policy commencing from 2003, Croatia has implemented the European Long-Term Residents Directive (adopted in 2003). In general, reform of immigration policy, induced by the prospect of European membership, was received with widespread unease among political elites who feared Croatia would turn to the country of immigration. Being dominantly a country of emigration and transit, Croatia has been until recently largely untouched by contemporary immigration movements experienced in the (Western) European states. Instead, after the gaining of state’s independence (1990), the immigration movements were low. With state focused on the process of nation-building, immigration and citizenship policies were used to include all Croatian ethnic members in the boundaries of new political community and exclude all others (i.e. other ethnic groups). Focused on issue of homogenization in ethnic unity (understood in terms of descent), immigration policies in the 1990s were officially defined as a policy of return of Croatian emigrants. The notion of economic citizenship, established across the industrialized states, and privileging the best and brightest immigrants (i.e. those who were seen as best contributing national economies), hardly took roots in Croatia. Instead, crucial criteria for allocation of benefits stemming from membership in national community rested on the principles of ethnic belonging. Such logic was installed primarily through citizenship policies, which privileged ethnic Croat population and linked the majority of rights (socioeconomic, political and other) to the institute of citizenship. The “aliens”, including permanent residents, were excluded from a variety of benefits offered under citizenship. Being itself a matter of difficult compromise among the Member States, the Long-Term Residents Directive instigated stringent model of economic citizenship, offering membership and rights to a limited category of migrants, depending on their socioeconomic status and skills. Forced to implement the Directive, but conceiving it “(too) liberal”, Croatian decision makers sought to install yet more restrictive interpretation of (already meager) immigration norms, aiming to keep immigration pressures low. In doing so, the elites embraced the economic reasoning and searched to avert immigrants from already week domestic labour market and indigent welfare funds. However, the economic reasoning has not led to re-consideration of the privileges offered to the ethnic Croat population. On the contrary, modest restrictions introduced to the rights of these persons in the course of Europeanization, were later corrected with re-invention of the instruments that aimed at their protection (such the law protecting “Croats without citizenship”). In such context of reform, domestic system introduced heavily restrictive interpretation of the Long-Term Residents Directive, introducing deflections in areas where it was allowed but not demanded from the EU. While the long-term residents in Croatia now indeed enjoy (socioeconomic) rights comparable to the Croatian nationals, as recommended from the EU, the group of aliens who can benefit these clauses has been narrowed down to a fragment of skilled and wealthy migrants. Allowing a minimal number of working migrants per year (with few hundreds of working permits per year) the government effectively averts immigration from the state. With restrictive policies and unfavorable domestic context (high unemployment and poor standard of living), Croatia remains a country of low immigration rates (less than 1 per cent). Despite fears that the EU reforms would lead to population change (i.e. “substituting Croats with aliens”) expressed from political elites, it seems that the system managed to seize the European laws and preserve desired composition of the population and preferred model of membership.

Equal rights for diverse family forms: the case of surrogacy in Israel

Dana Halevy, June 19, 2015

The devastating earthquakes in Nepal during April 2015 brought to the attention of the Israeli public an additional, completely different issue - surrogacy. During recent years, Nepal became a popular surrogacy destination for Israeli singles and same-sex couples. In the past year alone, more than 60 babies were born and tens more are expected to be born in the coming months. The presence of Israelis in the disaster area due to surrogacy processes, which are forbidden for same-sex couples in Israel, led to a vocal public debate in the media and social networks over the issue of surrogacy. Alongside a critique of international surrogacy as a form of exploitation of women suffering economic distress in developing countries, a more local issue was also discussed: the discrimination caused by Israeli law which differentiates between married heterosexual couples and single parents or same-sex partners. While the first are generally entitled for surrogacy within Israel (commercial or altruistic), the latter are not. Israeli citizens who wish to have children through surrogacy, can do so utilizing one of two options: the first is a surrogacy agreement within the country, under Israeli law and following the approval of a special committee established by the Ministry of Health. The committee's approval is dependent on the diagnosis of specific fertility problems. The second option is seeking an international surrogacy process in a different country. Israeli law limits access to surrogacy in Israel to a man and a women in a partnership. Single parents and same-sex partners will not receive approval for going through the process in Israel. Though Israeli society has been going through demographic and social change processes such as postponing of the age of marriage, higher divorce rates and a growing numbers of diverse family forms, it is still very much a traditional society with a great focus on the family and high birth rates (in 2013 these were close to three children per women). Although these high fertility rates are attributed primarily to specific groups, mainly Jewish-Orthodox and the Arab population, familial perceptions are spread all across society. The tension between these familial norms, and policies that distinguish between single people and same sex couples and more traditional family forms is therefore very apparent, and many single people and same sex couples seek alternative ways for having children. While Lesbian couples and single women are entitled to the extensive fertility treatments policy offered in Israel for heterosexual couples, homosexual couples are forced to find a solution either by forming joint parenthood agreements with single women, or seeking surrogacy abroad. Consequently, there are growing numbers of homosexual couples seeking an international surrogacy process. Israeli social security legislation acknowledges common-law spouses, both heterosexual and same-sex, as married couples. This includes the entitlement to all benefits and allowances. However, differences remain over the issues of surrogacy and adoption. Considering the worldwide discussion around the ethical and moral issues international surrogacy in developing countries involves, alongside local concerns over legal discrimination of specific groups, the State of Israel will have to address the needs and wishes of a growing number of diverse families.

Which rights, and for whom? Civil and social rights in Europe

Mara Yerkes, May 21, 2015

If a low-income family living in the Netherlands moves to Austria, should they be entitled to the same housing benefit they would have had if they were still living in the Netherlands? Or if a homosexual couple living in the UK has adopted a baby boy, and then decide to move with the child to Ireland where there is no law regulating the adoption of children among same-sex couples, should the baby boy still be considered the couple’s son in Ireland? Family rights and the legal definition of what is a “family member” vary a great deal between European Union member states. In some countries, family members are entitled to certain rights while in others they are not. Moreover, social rights vary from one country to another. Citizen's attitudes towards these rights also vary - yet research on attitudes towards certain family rights is scarce. While several cross-national, comparative sources of data exist that provide information about national attitudes towards things such as men and women's roles in the family or attitudes towards marriage or divorce, data on attitudes towards the rights of family members living in diverse family forms is limited or not available. The aim of WP9 task 4 within the bEUcitizen project is to provide a cross-national pilot study on attitudes of national populations in order to understand their feared effects of European efforts to converge these social, civil and economic rights for family members. In addition, our project aims to study national attitudes towards the rights of individuals moving within the EU, particularly pensioners, care workers and youth on the move. This past year, the research team has worked to carry out a pilot study among university students in six countries: Croatia, Denmark, Hungary, Israel, Italy, the Netherlands, and Spain. In total, the questionnaire we developed focused on investigating national attitudes across four areas: 1) attitudes towards individuals in different family forms being entitled to the same civil and social rights; 2) attitudes towards gender roles; 3) attitudes towards the role the European Union should have in developing more uniform civil and social rights across member states; and 4) attitudes about which rights people should keep while moving within the EU. The final report will be available soon, and a paper on the pilot study will be presented at the bEUcitizen conference in Croatia in June. But for a sneak preview, let's return to the scenarios posed by our questions at the start of this post: we found that in each country, people seem to be more accepting of equality in social rights (e.g. rights such as the right to housing benefits or access to public childcare) than civil rights (e.g. rights such as the right to adopt a child or get married). Interested in more findings like these? We will be discussing these findings and their importance in our upcoming report and paper, so stay tuned!

Egalitarian Euroskepticism? How does the Hungarian extreme right contribute to ideas of European Citizenship?

by Katalin Amon and Andrea Krizsan, May 6, 2015   Recent by-elections and results of public opinion polls in Hungary indicate remarkable strengthening of extreme right wing party Jobbik (Jobbik Movement for a Better Hungary), which becomes now the second strongest political party in the country. This takes place amidst corruption scandals and consequent rapid decrease in support for the governing FIDESZ, and the virtual absence of a potent left wing oppositional force. Jobbik is emerging as a key political force in the country. But how is the rhetoric of Jobbik contributing to the idea of European citizenship? An analysis of communication connected to the campaign for European Parliamentary elections is indicative of some of the highly controversial specifics. Krisztina Morvai is seen as one of the most charismatic women politicians in Hungary, and she is one of the three MEPs representing Jobbik. Following a stormy career path, which included membership in the UNs Committee on the Elimination of all forms of Discrimination against Women (until 2004), as well as spearheading of the Hungarian anti-domestic violence movement before 2005, criminal lawyer Morvai turned to extreme right around the mid-2000s and is now one of the leaders of Jobbik, who was re-elected to the EP in 2014. Her primary focus on women’s issues, youth, Roma and migration make her rhetoric highly relevant for discussing gender, generational and ethnicity related barriers to European citizenship. Victims of exploitation versus invaders of the Hungarian border While all far right parties in the EU use nativist discourses, in the case of Jobbik, and, particularly Morvai, nativism is combined with the appropriation of leftist critiques of global capitalism. Jobbik’s nativist discourse is about an unequal Europe in which Hungary and its citizens are second class, exploited either as “economic refugees” across Europe, or by Western European corporations reigning in the Hungarian labor market. In this discourse, the EU emerges as an empire lead by banks and large corporations, not politicians. The EU, according to Morvai, “colonizes” Hungary by buying Hungarian land and operating businesses, especially factories that rely on the low wages of unskilled Hungarian labor and its exploitation. Morvai even uses Wallerstein’s terms of “centrum” and “semi-periphery” when referring to Hungary’s position within the EU. This discourse is combined with nationalism and anti-Semitism (references to global “Zionist conspiracy”). Morvai points to EU’s double standards on human rights, which are conducive to the failure to protect the rights of citizens living in exploited nations like Hungary is, and failure to speak out against the human rights violations committed against these citizens. The EU imperialism discourse involves a double speech about nativism and immigration. On the one hand, Jobbik and Morvai problematize the emigration of Hungarian workers, especially Hungarian youth, to Western Europe as a phenomenon of colonization and a venue for exploitation. They therefore demand the EU to protect workers’ rights and human rights of Hungarian citizens living in other EU member states. Morvai refers to Hungarians who work in other EU countries as “economic refugees” to underline the political nature of their immigration. Unlike the “economic migrants”, a term the Hungarian right uses for undeserving immigrants who exploit national resources, Hungarian “economic refugees” abroad are those who are forced to leave Hungary and are exploited by the West. On the other hand, Jobbik expects the EU to defend the Eastern borders of the union more effectively, and protect the interests of the Hungarian residents living in this area. These Hungarians are seen to be disturbed by illegal immigrant “invaders”, who aggressively knock on their windows, leave trash behind, and spread viruses. However, Morvai frames the EU’s assumed responsibility in strengthening its borders as an obligation of the rich “colonizer” countries rather than the exploited nations like Hungary. Thus, while nativism is framed within a discourse of workers’ rights and human rights in Morvai’s statements, this leftist vocabulary is combined with nationalism and anti-Semitism. She criticizes the EU for its colonization and exploitation of Hungarian workers, but, at the same time, calls for stronger EU surveillance and law enforcement at the Hungarian borders where “invaders” might enter the country and disturb the peace of Hungarian citizens. Hungary is a sending country and not a receiving country (the share of migrants from the entire population in Hungary is below 1 percent). In this context Jobbik’s Euroskepticism connects the nativist discourse to a leftist and anti-colonialist logic, a vocabulary of exploitation mixed with nationalism. Hungarian women as second class citizens Morvai’s speeches devote particular attention to rights of Hungarian women. A theme cutting across the colonization and exploitation rhetoric discussed above, Hungarian women emerge as the main victims of second class citizenship. They are the prostitutes, cheap laborers, or trafficked sex-slaves of Western Europe, victims whose protection is not assured efficiently enough neither in their migration experience, nor at home. Responsibility is allocated primarily to inefficient EU directives and EU authorities that are incapable to enforce them, and only secondarily to the incompetent Hungarian authorities. What is the use of EU regulations if they allow an unequal European citizenship through which some citizens get protection, others not, and those who are unprotected are always the ones on the periphery of the EU? Morvai’s speeches talk about women’s rights, advocate for the norms of the Istanbul Convention, for unacceptability of inequality in pay between women and men, or between heterosexual individuals and individuals belonging to sexual minorities. Yet, importantly this always emerges in a context of criticism against EU institutions. Women’s rights are quoted, when the EP sessions go over time, thus preventing women employees from attending to their families. Disregarded EU obligations are quoted when discussing the very different pay of women on two sides of European state boundaries. But EU responsibility and double standards are also highlighted when discussions in the EP only speak about early age pregnancies in the developing world while similar disadvantages are faced by Roma girls in the member states of the EU, especially on the Eastern periphery. Trafficking in women is also seen as an arena of double standards: inactivity of police in the rich member states of the EU is explained with the fact that victims always belonging to the member states in the periphery, like Hungary, while beneficiaries are always Western men. What emerges is gendered and classed Euroskepticism, capitalizing on norms that are central to the EU, a skillful utilization of a gender equality repertoire that makes the resonance of a disillusioned public opinion with the right wing rhetoric dangerously easy. An ideal of substantively egalitarian EU citizenship emerges, which is manifested by market equality and de facto rights equality across the board for citizens of all member states. This comes under attack by colonization, economic exploitation and reliance on double standards, which threaten Hungary and its Hungarian citizens and favor those from the rich Western member states of the EU. Especially so in the context of an inert and corrupt national government.

How financial market pressure constrains political citizenship – lessons from euro crisis decision-making in Slovakia

Written by:  Robert Csehi and Uwe Puetter, April 28, 2015 

Under ‘Work Package 8’ we carry out a comparative research which analyzes the political aspect of European citizenship and the changes thereof. The exercise of political citizenship, which we understand as a meaningful access to the political decision-making process, has been greatly influenced by the latest financial and economic crisis. The deterioration of the financial market environment in the context of the euro area sovereign debt crisis, including the repeated non-compliance with the fiscal policy rules under the European Union’s (EU) Stability and Growth Pact, culminated in changed methods of EU economic governance. These changes notably led to a tightened coordination of member state fiscal policies at the EU level. Moreover, reforms imply a further emphasized role of EU institutions in the surveillance of national policy decisions. Similarly, the EU’s emergency measures at the height of the euro area’s sovereign debt crisis in 2010 and onwards involved comprehensive policy coordination efforts which all had far-reaching consequences for the conduct of domestic fiscal policy in euro area member states. In our research, we argue, that these developments indeed impact on the practice of what may be best understood as European political citizenship, i.e. the involvement in and the control of EU-level policy-making. In our research we do not assume that certain political rights ceased to exist, rather we investigate how their exercise may have been constrained. Consequently, we investigate whether the meaningful exercise of the right to participate, the right to vote and the right to information was questioned. Euro crisis decision-making has been repeatedly seen as a threat to democratic control within the literature. The lead role of executive actors is widely recognized. Yet, interpretations vary with regards to the weakness of parliaments at the domestic level. Both financial market pressure and the lack of parliamentary resources to control euro area decision-making are quoted to have limited core political rights of European citizens. The situation is complicated by the fact that euro area economic governance cannot be controlled in its entirety by either the European Parliament or national parliaments. While the powers of the former are constrained because euro area economic governance is primarily based on a decentralized model of coordinated national policies, national parliaments struggle to come to terms with a web of executive relations at the intergovernmental level which have evolved over time and which are concentrated around the Eurogroup and the European Council, and influence technocratic networks. In our research we want to do more to unravel these complex relationships and seek to trace individual episodes of decision-making. In a first step, we used Slovakia as a pilot-case focusing on the period between 2010 and 2012. We chose Slovakia because of the highly politicized and changing nature of euro decision-making in the country. This involved the rejection of the first Greek bailout in 2010, and the difficulties in creating sufficient political support within the governing coalition when it came to the acceptance of both the European Financial Stability Facility (EFSF) and the European Stability Mechanism (ESM) – the former a temporary crisis resolution mechanism to provide financial assistance to member states in need, and the latter its permanent successor. The decision on the extension of the capacity of the EFSF framework even led to the fall of the government under Prime Minister Radicová in 2012. All this suggests that euro crisis policy-making certainly did not suffer from a lack of attention within the arena of domestic politics. Yet, what did this mean for the exercise of core elements of European political citizenship in the Slovak context at the time? We carried out interviews with government officials and members of the National Council, Slovakia’s legislative body. Furthermore, we consulted the documentation of the work of parliamentary committees and media reports in order to better understand euro crisis management and its consequences to the exercise of political citizenship. We found that meaningful access to political decision-making has been constrained in different ways. First and foremost, the right to participate was limited inasmuch as extra-parliamentary actors exercised more and more pressure on the decision-making process. As one of our interviewees put it, there was a “chained pressure mechanism” through which financial market pressure translated into EU-level political support for the creation of the ESM. EU-level mobilization around the ESM became a determining input into Slovakian domestic politics, notably through top-level influence exercised by the European Council in relation to the Slovakian Prime Minister. There was an interplay of executive-level EU coordination and financial market pressures which left a limited role for parliamentary politics. The Prime Minister’s Office increasingly got involved in euro crisis management through Sherpa meetings, the gatherings of personal representatives of the EU’s heads of state or government in charge of the preparation of European Council meetings. As it was explained by one interviewee, “Prime Minister Radicová realized that she had to explain the decisions to the public, so she wanted to get more involved”. Furthermore, the role of the Finance Ministry was key. Not only did the Finance Minister, Ivan Miklos have a strong position within the Prime Minister’s Office, the ministry itself adopted a practice where, according to a former government official, not more than four people decided on the most critical issues. As one interviewee argued, “the ministry very much acted as a scientific committee with technocrats…consequently, there was very little democracy going around, which also had a great impact on the parliament”. There was a powerful transnational, technocratic EU elite group playing the most relevant role in the daily decision-making process as debates turned more technical (e.g. banking regulation, reforms to the SGP). This elite group comprised officials in the Eurogroup, the European Central Bank and the European Commission, and also members of the EU’s Economic and Finance Committee, and its euro area arm, the Eurogroup Working Group. Although parliamentarians in the National Council were supposed to control the government, they simply had limited capacity to do this. Firstly, the time horizon for decision-making was very short leaving at times less than an hour to review complex policy documents. Decisions were made in a hurry, and there was no time to consider alternative interpretations of the situation or policy options. Secondly, most parliamentarians lacked the expertise to engage with what were often highly technical matters. This illustrates the constraints under which the right to information, a key aspect of political citizenship, had come in this situation. Our research shows how key members of the EU’s technocratic elite served as filters in the information flow in this situation. They were the main sources of information to which not only governmental but also parliamentary officials turned to. However, the latter group received considerably less information than senior members of the national executive. Technocrats served as gatekeepers. They interpreted financial market developments and possible solutions to both members of the executive and parliamentarians. Even though the National Council faced capacity problems, and proved to be rather weak in overseeing the events, there was a high level of politicization in Slovakia at the same time. In fact, the fall of the Radicová government in 2012 over the extension of the capacity of EFSF demonstrated how political preferences towards EU economic governance measures could still play a major role despite the emerging consensus. One of the coalition parties, the Freedom and Solidarity Party (SaS), opposed the measure hoping to gain electoral support while the Prime Minister did not manage to ensure internal cohesion of the coalition. Even though the government fell, the next government, led by Robert Fico’s Smer party, voted for the measure. In general, political citizenship understood as meaningful access to political decision-making has been constrained on two accounts in the Slovakian euro crisis decision-making context despite a high level of politicization around the issues at stake: both the right to participate and the right to information can be considered as having been compromised in some way. This was most visible with regard to the role of parliamentary actors who – despite the focus on euro crisis politics and centrality of the issue in political competition – found it difficult to exercise core participatory functions in a meaningful way. The very dynamics and the importance of close EU-level policy coordination in the field of euro area governance are closely linked to this problem as they give centrality to a transnational EU technocratic elite network which serves as the main interlocutor for key executive actors at the national level and strongly influences the emergence of policy options. This phenomenon requires further investigation.

Mobility and inequality in the enjoyment of social rights

Ana Rosa Arguelles, April 2, 2015

Citizens of the European Union have "the right to move and reside freely within the territory of the Member States" (Art. 20.2.a TFEU) and, likewise, freedom of movement for workers shall be secured within the Union (Art. 45 TFEU). Article 48 of the Treaty on the Functioning of the European Union provides the legal basis on which the European Parliament and the Council take the necessary measures to prevent workers who move from losing or having their social security rights undermined. Rules have been established for the coordination of social security systems (Regulations EC 883/2004 and 987/2009) and the export of services, which prevent that "cash benefits payable under the legislation of one or more Member States or under this Regulation shall not be subject to any reduction, amendment, suspension, withdrawal or confiscation on account of the fact that the beneficiary or the members of his family reside in a Member State other than that in which the institution responsible for providing benefits is situated". (Regulation 883/2004, art. 7). This is true but with some limitations that mainly affect the special non-contributory cash benefits (Regulation 883/2004, Art . 70), linked to the economic and social context of the person concerned and the State which recognizes them. However, the decision to exercise these rights can later cause indirect effects which should be avoided. In this sense, the associations which represent the interests of the returnees have expressed that these people face problems to exercise certain social rights. When a certain degree of disability has been recognized in another Member State the Spanish administrative authorities tend not to recognize that evaluation issued by another government as sufficient entitlement to access certain disability-related benefits such as housing allowances, tax relief, etc. Instead, they are forced to undergo a further valuation by a disability assessment team whose report does not always match the opinion of the foreign authority. In short, they suffer a difference of treatment with regard to other Spanish workers who have not moved abroad as, for the latter, the recognition of permanent disability for the purposes of social security benefits is sufficient for them to apply for social advantages, without further proceedings. It should be remembered that the European Parliament Resolution of 25 October 2011 on mobility and the inclusion of people with disabilities and the European Disability Strategy 2010-2020 (2010/2272 (INI)) "calls for better, mutual recognition of disability status across the Member States" and "calls on the Member States to exchange good practice in order to close the gaps between national systems for assessing degree(s) of disability across the EU, with the aim of ensuring better mobility for people with disabilities". This is a petition that still needs addressing, finally undertaking some action in this regard.

Studying Abroad with Benefits from ‘Home’: the Martens Judgement

Silvia Adamo, March 23, 2015

Can EU law effectively help the mobility of students? EU law does not require Member States to provide for a study finance system or maintenance grants for higher education, either at home or abroad. When Member States do, though, the rules for obtaining a grant must comply with the right to freedom of movement and residence across the European Union, either pursuant to the rules on workers/self-employed or those relating to Union citizenship. This is also valid when the grant is a sort of ‘portable study finance’ to a foreign university (either in the EU or outside of the EU). This type of grant was at stake in the recent judgement regarding Ms. Martens, a Netherlands citizen who pursued higher education at the University of the Netherlands Antilles in Curaçao. Ms. Martens was eligible for portable study finance; in line with what was required by the Netherlands law, she had declared that she had been living in the Netherlands three out of the last six years prior to enrolment. In fact, she was living in Belgium, where her family also lived, including her father (who sustained her through her studies). For some time her father had been working part-time in the Netherlands as a frontier worker, but he was now working full time in Belgium. Consequently, according to the Netherlands authorities, Ms. Martens had lost her right to portable study finance for the period where her father ceased to be a frontier worker, as she did not meet the residence requirement. The Court had already ruled in 2012, in a case brought by the Commission v Netherlands, that the three out of six years rule was not in line with EU law, as it created inequality of treatment in accessing portable funding between nationals and migrant workers, including frontier workers (and their dependants). Also in the Martens judgement the Court ruled that the three out of six years rule constitutes a restriction on the freedom of movement and residence, and that the residence requirement is ‘too exclusive’ and ‘too arbitrary’ in evaluating the integration of a student in the Member State granting the portable study finance. These are two interesting sides of the Martens judgement that I will briefly analyse here. First, in my opinion it is remarkable that the Court reaches its conclusion on the basis of Article 20 and 21 TFEU on Union citizenship and not Article 7(2) of Regulation No 1612/68 on maintenance of social advantage for a dependant of a frontier worker. For the Netherlands authorities the loss of study finance for Ms. Martens had occurred only after ascertaining that her father was not a frontier worker anymore. Instead of assessing the protection of the freedom of movement of the frontier worker and his dependants (as the Advocate General does in her opinion), the Court evaluated the restriction of Ms. Martens’ right to freely move to Belgium and not to be impeded afterwards in her right to have a study grant from the Netherlands. The fact that the Court derived her right from the Treaty provisions on Union citizenship could either mean that the Court wanted to get rid of the three out of six years rule once and for all, or that the interpretation of the Treaty indeed offers an effective protection for the mobility of students. The Court confirmed that the provisions on Union citizenship prohibit Member States from hindering the right of free movement of their own citizens unless there is a legitimate reason for doing so. Second, the Members States have set up a (legitimate) integration requirement for Union Citizens before granting study finance in order to prevent unreasonable economic burdens, but often they have framed it as a residence requirement, whether of permanent residence or of a limited period, as in the earlier case from the Netherlands. The Court reiterates (as previously done in Prinz and Seeberger and Morgan and Bucher) that integration cannot be measured by looking at residence alone; a requirement of a certain period of residence left alone does not say much about the level of integration, or the real link between a person and a country. It is noteworthy that the expression ‘genuine link’ is (perhaps?) borrowed from international law and the relative doctrine for determining nationality. After all, isn’t Ms. Martens a Netherlands national? Didn’t she go back to the Netherlands to work after her studies in Curaçao? What more of a genuine link to the country sustaining her studies could she prove? The Member States could then perhaps feel encouraged to tailor a system where other elements (named in the Martens judgement at par. 41) such as nationality, schooling, family, employment, language skills, or the existence of other social and economic factors, could all be combined to define ‘integration’. Maybe the Martens ruling confirms that Member States should stop penalizing their own citizens for using their EU rights..?

SOME VIEWS FROM KIRCHBERG: THE BIG BANG THEORY AND THE THIRD MAN (OR THE GROWING DISTANCE BETWEEN LUXEMBOURG AND STRASBOURG…AND INDIVIDUALS TOO)

Javier A. GONZÁLEZ VEGA, March 17, 2015

A brief comment to Opinion 2/13 on EU accession to the European Convention on Human Rights  

In his Opinion 2/13 Court of Justice of the European Union declared that the draft Accession Agreement of the European Union to the European Convention on Human Rights is contrary to the provisions of the Treaties and Protocol No. 8 of the Treaty of Lisbon. eu As it is well known, the Lisbon Treaty introduced into the Treaties the Union’s commitment to accede to ECHR (art. 6.2 TEU) as a complementary way to enhance human rights protection, an issue that was particularly strengthened at the same time by the binding effect assigned to the European Charter on Fundamental Rights (art. 6.1 TEU). Following this obligation, the European Union spent three years negotiating a text which was adopted on April 5, 2013 and subsequently submitted to the Court of Justice, in accordance to the preemptive control established in art. 218.11 TFEU Departing from the opinion put forward by GA J. Kokott, who firmly defended the compatibility of the draft Agreement with European Union Treaties (notwithstanding some minor adjustments that should be made to facilitate EU accession to European Convention), the latest Opinion from the Court, published on December, 18, 2014, consistently puts into question the essential points of the draft agreement. First, it stresses the specificity of the Union as a distinct entity. Then, it unambiguously states the need to preserve the autonomy of European Union's law and the exclusive jurisdiction of the Court, which are both threatened by the proposed instrument. In her analysis, mainly laconic and formalistic, sometimes alarmist, it questions the very notion of external control and judges its jurisdictional monopoly endangered. In this respect the Court states that EUCJ's exclusive judicial powers could be threatened by the "emerging" preliminary ruling mechanism conferred to the ECHR, as established by Protocol No. 16 (adopted in October 2013 and not yet in force). Moreover, the Court rejects the regulation of the status of co-respondent and the related prior involvement procedure, which seems not to sufficiently preserve the exclusive power of the European Court, mainly exerted through preliminary rulings, and now apparently limited by the draft in its interpretative way, but leaving simultaneously a large discretional power to the European Court on Human Rights. Finally, on the very sensitive question of CFSP, the Court strongly questions jurisdictional immunity over acts related to this intergovernmental policy, inasmuch as at the same time they could be controlled by the Strasbourg Court. Nothing new at first sight. In fact, the Opinion 2/13 shows once more the Court’s distrust regarding EU relations with international law, as previously stated in Opinions 1/91 and 1/09 or the Kadi Ruling, and at the same time gives new impetus to the certainly controversial Melloni doctrine that has -notwithstanding some brief references- a deep impact in its arguments. Furthermore, this decision, even if expected, leaves open the question on the ways to address the negative of the Court, given the imperative provision on the accession to the ECHR established in the art. 6.2 TEU. Also, as long as it can generate conflicting dynamics with other actors involved in the process of protection of fundamental rights -not only the ECHR but also high national courts - the Opinion could have a deep impact on the European multilevel system of human rights protection. reuters Having said that, perhaps the most disappointing aspect of the decision is that despite its adoption within a wider debate on the accession to a treaty on Human Rights - indeed the most important that has ever existed- it makes very limited references to individuals, to human beings. Too many digressions on power-sharing issues, too many references to autonomy, to Union's specificity and its exclusive jurisdiction; but in contrast how few references – if there is any at all?- to the rights of individuals to freedom, equality, solidarity ... the values at the core of the ECHR that the Court is meant to zealously protect. It would seem -as put by Harry Lime, the character in Graham Greene's novel The Third Man- that from the heights of Kirchberg the individuals were only "little black dots"... Individuals, the individual ... Because Europe’s essence is mainly about the protection of the individual. Isn't it?

A reflection on European citizenship from a Catalan perspective

Clara Isabel Velasco Rico, March 12, 2015

In my homeland, where I was born and where I presently live, the nationalist movement is currently in full swing. It is a well-known fact that a significant portion of Catalonia's citizens are striving for independence from Spain. The political parties (both the nationalist right wing and the left-wing parties) that have been in power in this Autonomous Community of Spain have always been strongly pro-European. What is more, Catalan citizens are very sensitive to the debate on European Union membership of a future independent Catalonia. In fact, one of the slogans of the parties, associations and civic movements in favour of independence is “Catalonia: a new European state”. The legal issues emerging from a scenario in which Catalonia gained its independence would be very complex, both from the point of view of its relationship with Spain and from the point of view of its relationship with international institutions and the European Union. The debate on the accession of an independent Catalonia to the EU can be approached from two distinct yet closely related angles. First of all, the problem can be dealt with from the perspective of the birth of a new state from an existing EU member state. Would the new Catalan state become a member of the EU ipso facto? Even though the treaties do not provide any clear guidance on this matter, the answer appears obvious and we quickly arrive at a “no”. This does not mean, however, that it cannot become an EU member in the future (via the regular accession process or an accelerated one), provided that none of the member states uses its right of veto. Secondly, this issue can be dealt with from the point of view of European citizenship. Catalan citizens (Spanish by nationality) are European citizens and enjoy the advantages and benefits granted to them by this legal status. Should Catalonia eventually become an independent state, would that simultaneously entail a loss of their status as European citizens for Catalan citizens? In 2012, Durao Barroso affirmed that “EU citizenship is additional to and does not replace national citizenship (i.e. citizenship of an EU member state)”. The words of the former President of the European Commission leave scope for interpretation. However, their undertone suggests that European citizenship merely refers to the condition of being a citizen of a member state or of a club of states. And if that is the case, do we really want this model of the EU? Let us debate!

European citizenship and failures of euro-optimistic politicians

Vít Hlousek, February 23, 2015

I started to write this blog in a train that slowly took me from Poland back home to the Czech Republic. Returning from the conference on Central European party politics, I was thinking about the results of the last elections to the European Parliament that took place in May 2014. The results of particular parties were not object of my curiosity but the strikingly low electoral turnout. In Poland, only 23.8 per cent of the eligible voters casted their votes; in the Czech Republic, the turnout was lower not surmounting even one fifth of the electorate. The interesting point is that the common wisdom depicts Poland as a euro-optimist country while the Czech Republic has a rather shady image of a troublemaker, reluctant participant at the EU affairs with bunch of top euro-sceptic figures among the Czech political elite. These images of course fail to address details and leave aside huge reservoir of euro-sceptic voices in Polish political debate as well as those Czech politicians and officials who cope considerably well with the EU membership challenges; but this is not the point. The point is that both in mainly optimistic and slightly sceptical political scenes of these Central European countries, the pro-European politicians failed to convey the message of the importance of the European Parliament,  as well as the positive results of ten years of membership in the European Union which, nevertheless, are clearly visible. The jargon of euro-optimistic politicians has been superficial and vague for years and even the supporters of European integration never missed the opportunity to steel the merits of integration by declaring them as their own achievement. Such a selfish, narrow-minded, and short-sighted treatment of integration is not a speciality of the political elites of so-called Eastern enlargement countries. You would be able to find such elements literally everywhere in the EU. Failure of euro-optimistic politicians does not help much to persuade the voters about the positive features of integration in the days of economic crisis, unpopular but inevitable austerity measures and increasing public constraining dissensus concerning the integration. Only realistic, non-exaggerating but firm and concrete argumentations in favor of integration could win the heads and perhaps later on also the hearts of European citizens to establish a more integration-friendly environment, in which the EU citizens would be aware not only of their citizen rights but also of the political obligation to participate in a system to which they owe so much. Without active effort of pro-integration politicians, without the frank and at the same time clever strategy showing real successes, and not hesitating to confess mistakes and cul-de-sacs of recent EU integration, the realization of the political aspect of the EU citizenship would remain considerably under-performing in comparison to citizenship granted at the national political level of the member states. Political socialisation of the citizens into the system belongs to key functions of a vital political system. In this respect the EU has still many shortcomings including somehow foolish behaviour of integration proponents in the political system of particular member states. No matter how apparent might the positive outcomes of integration seem to such politicians, they must regain the voters again and not to fool themselves that the once achieved and now lost permissive consensus can re-appear.

A year after the heteronormative marriage referendum in Croatia: outcomes and lessons learned

Josip Sipic, February 11, 2015

A little more than a year has passed since the Croatian citizens voted on a referendum to introduce the definition of marriage as a union between a man and a woman in the national constitution. Inspired by recent Slovak referendum on same-sex marriage and adoption rights, this article will give a brief overview of the developments related to the referendum in Croatia as well as its legal, social and political ramifications. After the dissolution of SFR Yugoslavia, Croatia went through two transitional phases: the nationalist phase in the 1990s and the EU integration phase, which marked the 2000s. When it comes to the citizenship status of sexual minorities, the nationalist phase saw the prevalence of homophobic discourses in the public space reflected in legal, social and cultural marginalization and discrimination of LGBT persons. On the other hand, certain steps forward were made in the EU integration phase in terms of institutional and legal changes with the aim of changing the unequal citizenship status of sexual minorities, mostly due to the incorporation of LGBT rights into the EU accession criteria. These changes were most evident in the introduction of the Anti-discrimination Act, sanctioning discrimination on the grounds of ‘sexual orientation’, and the implementation of anti-discrimination measures in other legislative acts, as well as in the growing relevance of Gay Pride Marches. However, it cannot be said that the aforementioned changes have been reflected in the cultural sphere, which is still dominated by homophobic patterns. In May 2013, less than two months before Croatia joined the EU, a conservative civil initiative group „In the name of the family“, led by Željka Markić, started a campaign to protect the heteronormative family by defining marriage as a union between a man and a woman. Although this provision already existed in the Family Law, the campaign started by gathering signatures for the referendum to introduce this provision into the Croatian Constitution. Acting in the context of deep economic and social crisis, public dissatisfaction with Government's policies, and supported by the Catholic Church, (inter)national conservative organizations and right-wing parties, the initiative managed to gather 749,316 signatures in the period from 12 May to 26 May. This number significantly exceeded a minimum of approximately 450,000 signatures (10% of registered voters) required to organize a referendum, indicating that the initiative was well organized, articulated and funded, but also that homophobia is still deeply rooted in the Croatian society and culture. The center-left and liberal ruling coalition distanced themselves from the actions of the initiative from the beginning. Many civil society organizations such as LGBT, feminist and human rights NGOs protested and organized against the referendum in the coalition named „Citizens vote against“. However, the Government did not translate its disagreement into any kind of action, but rather ignored the initiative, whereas the NGO coalition started rather late with its activities. Thus, the referendum was organized without any formal submission from the Government or civil society organizations to the Constitutional Court to evaluate if the referendum question was discriminatory and unconstitutional. Finally, the referendum was held on 1 December 2013, attracting a relatively low number of voters (37.90%), with 65.87% supporting the constitutional ban on same-sex marriage. In this way discrimination towards LGBT persons has been institutionalized in the Croatian Constitution. However, the campaign also had its unintended outcomes in the improvement of citizenship status of sexual minorities. Immediately after the referendum, the Government reacted rather swiftly by finalizing the procedure for the adoption of the Same Sex Life Partnership Act. On 12 December 2013 the Government passed the proposed Bill, and the Act was adopted in the Croatian Parliament on 15 July 2014. The Act grants same-sex couples many of the same rights as marriage, with the exception of adoption. The same-sex partners are now provided access to labor rights, social benefits, tax benefits, retirement, health insurance and protection, as well as family privileges already granted to married different-sex couples. It should also be noted that the Act recognizes the institution of ‘partnership care’ that can be granted to a partner who is not a parent of a child living in a household of same-sex partners. Between 30 and 40 life partnerships have been registered since September 2014. There are several conclusions that can be drawn from these developments. First, when the ‘external political pressure’ characteristic for the EU accession process disappeared, we saw a significant rise in discriminatory discourses and practices, backed by the Catholic Church, (inter)national conservative organizations and right-wing parties, and fueled by general dissatisfaction with the social and economic crisis. The radical right organizations and parties that gained momentum in the context of the marriage referendum have become relevant social and political factors, now focusing on the restriction of reproductive rights, especially right to abortion. Second, although the ruling center-left and liberal coalition passed the same sex partnership act, the fact that they did not present the referendum question before the Constitutional Court, never had the intention to regulate the status of same sex couples within the family law, consider their access to adoption or label same sex partnership as marriage points to their weakness in front of the Catholic Church and radical right forces as well as a lack of genuine political interest to fight homophobia and discrimination against sexual minorities in full extent. Third, the late reaction of civil society organizations to the referendum initiative shows that they were not prepared for such a well organized neo-conservative alliance, and that they passively relied on the reaction from “above” (whether it be the Government, Constitutional Court or the EU). Therefore, the local ‘civil scene’ as well as other social and political actors fighting for sexual and gender equality need to engage more actively in detecting new strategies to oppose those backlash initiatives, expand their networks and alliances at the national and international level, and find innovative ways in reaching the wider population in order to work on changing the dominant homophobic and patriarchal culture. This is especially important if we take into consideration a high probability of right-wing coalition winning the upcoming parliamentary elections that will take place at the end of this year.

Citizenship – VIP card for a prosperous life?

Gaabriel Tavits, February 5, 2015

We are used to distinguish people according to their origin. From their origin we can see that the person is from a different nationality. In everyday life we can see that the people are different – they have a different language, they are of different races, and they have different cultural habits. All this does not disturb us, because we assume these people will stay in our country or beside us temporarily and soon they have to return to their home-country. There are usually no complications about the citizenship if a person wants to visit a foreign country for a short time or as a tourist. We wait for the tourists in order to spread our culture or we want them from an economic point of view. The situation is somewhat different, when a person want to stay in a country not as a tourist, but when he or she wants to work, to study or to stay as a refugee – in other words to stay longer in a host country. In such a situation the legal and social attitude to that person will differ. In some cases legally seeing the stay in a foreign country will be possible, even acquiring  citizenship could be possible, but socially speaking strangers will not be accepted by the neighbours. Emotionally seeing – (s)he is not us, (s)he is a stranger. The situation can also be the opposite – a person is famous and welcome, neighbours want to have him or her, but there are a lot of legal obstacles and there is no interest to deal with those legal obstacles (e.g. not knowing the language or not presenting necessary documents for acquiring the citizenship). One can say - citizenship is a VIP card for enjoying all the necessary protection in a country in full amount. This does not concern only the political protection, but also full protection in the sense of social and economic aspects. Full recognition as a part of society in a country will be awarded only with citizenship. I assume that there can be different persons stating that this is not fully true, but if we look e.g. how the social rights are constructed, one can see, the full protection in case of social rights is guaranteed for the citizens. The position of citizens is privileged. There is no generally accepted obligation to respect ones citizenship outside of one’s home-country.  Certain disadvantages due to the citizenship in countries to which the person does not belong are basically allowed. In the last aspect the EU is different from the other political entities. Within the EU, at least formally, we have to respect citizenship in full amount without any limitation. Although there are time to time complications with that principle, still we can say citizenship in the EU is a VIP-card for fully enjoying protection as a human being, not only politically, but also socially. With citizenship as a VIP card there is also another important aspect I would like to discuss. Estonia is one of the countries, where approximately 25% of the population has no citizenship (stateless persons). This is due to the fact that during transitional period (at the end of eighties and at the beginning of the nineties of last century) there was no citizenship of the USSR anymore and many persons did not want to take the citizenship of the Russian Federation nor citizenship of Republic of Estonia. The recent activities in Ukraine have raised political and legal questions – should Estonia make changes in its citizenship policy and make it easier to obtain Estonian citizenship? The reason is oblivious, if somebody will proclaim, that it is necessary to protect their people with help of soldiers, it is not possible to protect the other people, who belong to the different citizenship. When granting to non-citizen the citizenship, it will help to protect them from the pressure of the other countries.  Therefore at least internationally seeing there will be no legal authority or no legal excuse to enter a foreign country as we have experienced in the case of Ukraine.  Here again one can say – citizenship is a VIP card to enjoy the full protection in one state, but also to get protection from the intervention of the other states.  

When benefit tourism enters the Court-room - The consequences of the Dano-case

Catherine Jaqueson, January 26, 2015

By Associate Professor, PhD. Catherine Jacqueson and PhD-scholar Katarina Hylten-Cavallius, Welma Center for Legal Studies in Welfare and Market, Law Faculty, Copenhagen University, Denmark. The Dano-ruling was much awaited and its outcome stirred headlines across the EU Member States. The UK Prime Minister Cameron called the ruling ‘common sense’ as the European Court of Justice set limits to a Union citizen’s right to equal treatment when claiming social assistance from a host Member State, thereby tackling the issue of ‘benefit tourism’. The questions referred concerned a request for a subsistence allowance. German authorities had refused to grant it to the Romanian national Mrs. Dano on the ground that Union citizens, who do not fulfil the conditions for lawful residence in the Directive, do not benefit from the right to equal treatment. A noteworthy aspect of the ruling is the Court’s strict and exclusive emphasis on the lawfulness of the residence. Lawful residence could only stem from EU law and the conditions of the Citizenship Directive had to be fulfilled. The Court did not try to ‘save’ Mrs Dano by virtue of her EU citizenship. Indeed, it did not give any consideration to the fact that Mrs. Dano had been granted a residence permit of unlimited duration by the German authorities before claiming the benefits in question or the fact that her sister had previously provided for her needs. This is a deviation from previous case law such as C-85/96 Sala and C-456/02 Trojani where the Court found that lawful residence according to national law was enough for a Union citizen to rely on the right to equal treatment in Article 18 TFEU. In addition, the new approach in the Dano-case raises at least two concerns. First, Union citizens who are not entitled to any benefits do not seem to be expellable as they do not constitute an unreasonable burden on the public purse. A person in Mrs Dano’s situation might therefore lawfully remain in a host Member State but be denied equal access to some (or all) social rights that the host society’s nationals have. This legal limbo can potentially constitute a social bomb. Second, how will the Dano-ruling affect the legal protection of first-time jobseekers? The Court does indeed qualify the benefit sought as a social advantage and thereby implicitly removes it from the scope of EU-law for first-time jobseekers. Yet, this allowance could also be classified as one facilitating access to the labour market for those available for work pursuant to the Vatsouras-ruling. The Court’s ruling in the forthcoming case C-67/14 Alimanovic is therefore much awaited. The saga continues for better and for worse…

All sisters in tears – my right to be treated equally badly

Marie-Pierre Granger, January 19, 2015

Just over ten years ago, after studying in France, Greece and the UK and working as a faculty member of a British university, I took up a position in a private-US accredited university located in Budapest, the-up-and-coming capital of Hungary. It was in the summer 2004, shortly after the Big Bang enlargement and Hungary’s accession to the EU. Until then, my experience as a mobile EU citizen had been overall stress-free and rather exciting. I have now come to see the ‘dark side’ of EU citizenship. I will pass on the numerous administrative and linguistic hurdles which render moving and living in Hungary challenging, as well as the difficulties of navigating an informal economy, as I hope to have the opportunity to present and discuss them in another bEUcitizen blog post. For now, I wish to share with you one of my life events as a EU citizen – the day I sued the Hungarian government to protect my pension rights. By telling you this particular story, I hope to show you that the EU citizenship right not to be discriminated on the basis of nationality is not a panacea. Often, it simply amounts to the right to be treated equally badly, and there is little the EU can (will?) do to prevent this. By the same token, it should also give you a taste of what it is like to sue for your rights in a would-be ‘illiberal democracy’ (Victor Orban). When I started working at Central European University, like my Hungarian colleagues who entered the job market between 1998 and 2010, I was required by law to pay, in addition to a 1.5% mandatory solidarity payment into the state pension scheme (‘first pillar’), 8% of my gross salary to a mandatory private pension scheme (‘second pillar’). My employer was, moreover, contributing a further 24% towards the state pension scheme on my behalf. Those who had started work before 1998 could also join the private scheme, and many choose to, with the result that 70% of Hungarian employees, representing three millions persons, were thereby mandatory member of private pension funds. In November 2010, the government, short of cash and failing to reach the EU deficit target, stopped forwarding the 8% share to the private pension funds, and retained the money in the state scheme. A month later, it passed a law which provided for the ‘transfer’[1] of all the pension savings accumulated since 1998 under the mandatory private pension scheme into the State Treasury. It amounted to more than 10 billion EUR (above 10% of GDP). As for the 24% employer’s contribution, it was converted into a tax. The private pensions savings were to be automatically transferred to the Treasury, unless people made an official declaration objecting to it to before the end of January 2011 at one of the (few) designated offices. The government made it clear, however, that those who chose to oppose the transfer would forfeit their right to receive any payment from the state pension scheme. They would also stop accruing annuities towards retirement. Most people got scared and let the transfer of their savings go ahead. I was amongst the 3% of the mandatory private pension members (around 100,000 persons) who joined the long queue to declare my opposition to the transfer. It is worth noting that, shortly before announcing the move, the government had conveniently amended the Basic Law to curtail the review power of the Hungarian Constitutional Court on economic and fiscal matters, thereby protecting it against constitutional challenges. From the moment the government had announced the measure, I had looked for ways to fight against it. I got in touch with lawyers at the Hungarian Pension Office, who told me, off the records, that they had already alerted many times the political decision-makers that the reform was in breach of Hungary’s international obligations, but to no avail. I also contacted Europe Direct, as well as the European Commission Directorate on Social Affairs. They first replied that pension reform was a national competence and as such, there was nothing they could do. I counter-argued that the situation fell under the scope of application of EU human rights law, because I had exercised my right to free movement, and because it concerned the implementation of EU legislation on the social security coordination (Regulations 883/2004 and 987/2009). I was nonetheless told that it was not enough to ‘trigger’ the application of the Charter provisions on the protection of the right to property (Article 17) and to social security (Article 34).[2] I still insisted that the refusal to take account of future annuities, at least, must be against Regulations 883/2004 and 987/2009 as it would undermine my ability to accrue service years in Hungary and to claim pro-rated pensions in the future. The Commission agreed on this point and asked questions to the Hungarian government on this issue. In the meanwhile, convinced that I ‘had a case’ under EU law, I looked for a Hungarian lawyer to help me bring judicial action before Hungarian courts. Those who I first contacted tried hard to convince me not to bring the case. They either claimed that I had no grounds, or that launching a lawsuit against this government would put my life and the life of my family at risk! This did not put me off, and I eventually found a more courageous lawyer who took my case on a pro bono basis. Together, we set out to get the case to Luxembourg, by challenging part of the reform on the basis of EU law, whilst other plaintiffs, relying on the European Convention of Human Rights, made their way to Strasbourg. After various delays caused by faulty administrative decision-making procedures, we eventually got the case heard by the competent court in the Autumn of 2012. The young judge, to our surprise, agreed to make a request for a preliminary ruling to the Court of Justice of the European Union. The government had, by then, achieved its objective, and seized all the pension savings (save for the ones of those who had objected). In order to fend off legal challenges in European courts, in July 2012, the government introduced a new law, to address the situation of the few, like me, who had retained their private pensions.  Those were people who had, until then, been denied future state pensions and service years, although they and their employers had been contributing to the state pension scheme all along and were still paying 10% of their salary into the state fund.  The new law guaranteed that they would receive proportionate payment from the state pension scheme when fulfilling retirement conditions and that they would also regain their right to acquire additional service years. In January 2013, the European Court of Human Rights, which was examining  complaints against the Hungarian pension reform under Protocol 1 Article 1, had no choice but to issue a judgment of compatibility.  Upon my lawyer’s advice, I withdrew my case. 60,000 people, including me, still have their private pension savings, for the time being at least (many funds were already forced to close down by low membership numbers and onerous regulatory constraints). For the three million men and women who had been pressured into accepting the transfer and promised individualized accounts in the state pension scheme - which never materialized - the harm is done. It is an open secret that all the money has already been spent to fix the budget deficit, reimburse part of the government debt, and finance a socially unjust flat-rate tax reform, as well as subsidize the lavish lifestyle of government officials … At the end of 2014, the government aired a new plan to seize the remaining private pension savings. The move triggered a series of demonstrations in the streets of Budapest, in which the protesters turned to Europe for help (watch the video: Demonstrations in Budapest). My lawyer is gathering interest for a class action, aiming this time for Strasbourg. I’ll keep you posted … [1] Many call it ‘confiscation’. [2] Perhaps the Commission was also a bit embarrassed by the fact that the Hungarian decision to nationalize private pensions had been partially triggered by the Commission’s refusal to allow for the deduction of the cost of pension reform in the budget deficit calculation.

EU rights for workers and their possible prevalence on Member States financial interests

Flavio Guella, January 12, 2015

The economic interests constitute one of the main elements in the evolving of the European case law, and such role – in the context of public finance crisis – is founding hypothesis of economic rights that can produce both an increasing or a rationalization of the public expenditure. The European Court of Justice in the Mascolo decision 26 November 2014 (cases C‑22/13, C‑61/13 to C‑63/13 and C‑418/13) established some relevant principles concerning the balancing of public administrations’ organizational and financial interests, on the one side, and the citizens’ rights (as recognized by the EU law itself), on the other. In particular, the Court – on a reference for a preliminary ruling concerning successive fixed-term employment contracts in the Italian public sector (education) – stated that «objective reasons» justifying such contracts cannot be recognized if not reasonably founded. According to the Court a less costing organization of the education service, achieved by means of unstable job contracts (that are detrimental for workers’ economic rights), integrates an abuse of the employer’s economic right to freely organize his activity when the only reason to use such flexible contracts is represented by a theoretical Member State financial interest, and not by a concrete need for temporary work. Indeed, the clause 5(1) of the framework agreement on fixed-term employment concluded on 18 March 1999, which is set out in the annex to Council Directive 1999/70/EC, must be interpreted as precluding national legislation, such as the Italian one, which authorizes the renewal of fixed-term employment contracts to fill posts of teachers that are vacant and unfilled (without stating a definite period for the completion for a permanent contract and without other measure intended to prevent and punish the misuse of successive fixed-term employment contracts). It is indeed unreasonable to sacrifice the workers’ interest to stability when such staff positions are permanently required, and – therefore – if the administration avoids to engage teachers with permanent contracts for the sole reason to guarantee flexibility of the public budget and of the administrative bodies organization. In such a case the European Union demonstrates its attitude to be a community of rights and opportunity for citizens, and not only an agreement of financial and commercial constraints for Member States. Indeed, the relevance of such judgment goes far from the topic involved (that anyway concerns thousands of workers in Italy), and constitutes a precedent that shows how (and when) the EU legal system does admit the prevalence of (costly) citizens rights on the public interest to achieve better financial targets (by means of a public money saving that – anyway – has not to be detrimental for citizens rights). Indeed, the Court expressly stated that (point 110) «whilst budgetary considerations may underlie a Member State’s choice of social policy and influence the nature or scope of the measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and, therefore, cannot justify the lack of any measure preventing the misuse of successive fixed-term employment contracts as referred to in clause 5(1) of the Framework Agreement».

Anxiety’s delays in Europe: an East-West travel diary

Orsolya Salat, December 23, 2014

Last week, which was my second in office, I travelled to Copenhagen for a bEUcitizen meeting. The plane was packed with businessmen and elegant people doing Christmas shopping. Having been busy lately with the project, with my book, and with my baby, I did not have time – and, to some extent, money – to buy myself nice clothes and shoes after the pregnancy, neither to go to the hairdresser’s. In the rush, I packed two half pair of black shoes apart from the comfortable, unpolishable sporty shoes I was wearing. Thus, everything was set for my frustration. No haircut, no black shoes, clothes which looked nice for the last time on my pre-pregnancy body two years ago. The event however went just all fine. Copenhagen was friendly, fresh, simple, and efficient. On the way back, I could not check in at the machines, while my French colleague could. We – actually, she – went to inquire how this different treatment of two EU citizens was possible. The answer came that it was probably because of my nationality. Their (and, in fact, my) first guess was that I was treated differently because I was Eastern European. Later I realized it might have also been because of my name which in Arabic meant ’prayer’. I could not decide which version was worse. In any case, they checked me in without further problems. Our plane to Budapest was delayed, so we had a cup of complimentary tea and could check out Financial Times, FAZ and Süddeutsche. Next day I took a low-cost to London. The plane was virtually empty, aside from a few apparently hungover or just very sleepy English youth, a handful of Hungarian students, and some other people probably doing unskilled work in the UK. A conflict arose between a man and a woman about facebooking while standing in the queue. The man was aggressive, had to be stopped by his friend, the woman made debasing remarks about the poor-looking guy. Flight attendants couldn’t care less. My host just started to work for a startup in London, and he prides himself for being the only foreigner there – with the exception of a Scandinavian, but as such „he does not count.” The other Hungarians I met all work in restaurants where the rest of the personnel is exclusively from Eastern and Southern Europe. They don’t come home for Christmas, because they would hardly get (even unpaid) leave, and because their relatives would expect them to pay all the bills, and bring expensive presents. From London to Budapest, the completely booked-out flight was delayed. Hungarians waiting for the flight were sitting in one area for three hours. No airport shopping for Christmas. I saw nobody buying anything to eat or drink either, not even for the children. I felt it was an exaggerated self-moderation, prices were not higher than in London in general. There was no complimentary drink offered. Complimentary copies of a tabloid were available, with front page headlines about „Ed” (likely Miliband) claiming ’’I will ban cheap foreign workers from the UK.” It is well possible that I was the only one noticing it. On the plane, I could not pay the tea with my remaining pound coins. According to the low cost’s internal rules, flight attendants have to change coins into notes at the end of the day, and they did not have any more pound notes in their personal purses. Euro and Hungarian forint were accepted in all format. During the flight, I overheard a conversation about the news that a Hungarian candidate just came out second in a Miss World competition in London, behind a South-African. People concluded that now she then logically qualified as Miss Europe. At home I watched the live stream of a protest against corruption, new taxes, extreme child poverty, school segregation, the quasi-mandatory public work scheme, and welfare cuts, entitled „We have no place left to retreat.” Almost every speaker mentioned European values, in opposition to government policy. There was a parallel protest organised in London, with banners saying „I am an emigré”, „I am a Hungarian”, „I am a democrat”,„I am free”, „I am a human”, and „I am, too.”

Residence in the home for the elderly - who has to pay the bill?

Susanne Heeger, December 11, 2014

One of the cornerstones of the European Union is that its citizens should not be hindered when exercising their freedom of movement. Mr. X is one of those Union citizens who has made use of his freedom of movement. He is a German national who, as soon as he was of age, moved to the Netherlands. He has been living and working there for the last thirty years. In all these years he has not been in touch with his mother. Recently, Mr. X received a letter of a German social assistance authority informing him that his mother was admitted to a home for the elderly. Her pensions and savings are however not sufficient to pay for the care she receives there. Therefore Mr. X received the bill for his mother’s residence. Germany applies, so to speak, regulated mutual familial solidarity in its Constitution. Thus, German law provides that family members in the first degree are obliged to (financially) support each other.Consequently, adult children must financially support their parents’ maintenance if the parents are not able to provide for themselves. For instance children can be obliged to pay for costs of residence in a home for the elderly that exceed the amount paid by the insurance. If children lack the financial means, the costs of care will be paid for by the social assistance authority. (In 2012, around 440.000 Germans received this form of social assistance.) The obligation to financially support ones parents may only be limited under strict circumstances. One of these circumstances is when the person entitled to financial support has shown ‘severe misconduct’. In February 2014 the obligation for children to financially support their parents was confirmed and further elaborated in a ruling of the German Federal Court of Justice (Bundesgerichtshof). In this case a father had not only refused to stay in touch with his son for about 40 years, he had also disinherited him. After the passing of the father the son received a bill for his father’s maintenance of around € 9,000. The Bundesgerichtshof ruled that the fact that the father had completely terminated contact was indeed considered to be a ‘misconduct’ but could not in itself be regarded as a ‘severe misconduct’. The father had taken care of his son during the important and critical years until his son turned 18, thereby fulfilling his parental obligations. By disinheriting his son, the father had merely exercised his right to testamentary freedom. The son’s maintenance obligation could therefore not be declared void. The son was obliged to pay the bill. The Dutch system is of a different nature. It is considered to be more individual than the German system. As no mutual familial solidarity obligation exists, persons in the Netherlands pay legally defined contributions which are regarded to be quite high. These contributions are well over 12% of the income (up to a ceiling of about € 52,000). That is six times the amount that persons in Germany pay: the German annual fee was around 2% of the income (up to a ceiling of about € 49,000). This is where the shoe pinches: Mr. X not only has to pay his Dutch insurance fees; based on German law and the recent case law of the Bundesgerichtshof it is very likely that he will also have to pay for his mother’s care. Mr. X is thereby financially punished for leaving Germany and exercising his freedom of movement. The status of social security law is controversial and much debated within the European Union. The example in this blog shows that certain social security issues need to be discussed, and possibly even be resolved, at Union level. Not only is it very unlikely that Mr. X is the only person faced with such a matter, this issue potentially infringes one of the very foundations of the European Union: the right to freedom of movement of Union citizens as it hinders or makes it less attractive as German national to reside in another EU Member State.

Hanna in luck

Brigitte Unger, December 8, 2014

Hanna had served as an Austrian civil servant for twenty years, so she said, "Master, my time is up; now I should be glad to leave Austria and go to another EU country to perform the same job and enjoy my EU citizenship". The master answered: "You have served me faithfully and honestly; as the service was, so shall the reward be. But you first must find out your change in pension claims. If you take up the same job in the Netherlands you will become an employee and have to quit your Austrian civil servant status. Parts of your social security claims will be transferred to the Austrian social security for employees with a maximum ceiling strongly below the pension of a civil servant. In addition, unfortunately you cannot take your pension claims with you since Austria has a pay as you go pension system, where the young generation pays the current pensions of the old generation, so there are no saving stocks which you could take with you. Hanna, I cannot give you a piece of gold as big as your head that you can trade in for a horse, a cow, a pig, a stone to finally end up with empty pockets, as your male counterpart Hans in luck, but I can make you almost as happy if you continue your travel through Europe”. As Hanna found out only almost two year later, when the Austrian authorities finally sent a one page letter with the Austrian pension she could expect from the age of 60 on, her pension benefits were about thirty percent less than those of her immobile civil servant colleagues for the same period of time. The Netherlands has a multi-pillar pension system, with an employment based capital funded pension pillar which allows accumulating one’s own pension savings. The Dutch pension system was transparent and customer friendly. With an access code, Hanna could trace her pension claims herself. Unfortunately the financial crisis hit the value of her pension stocks substantially. The capital based pension system reacts strongly to a decline in interest rates and a fall in asset values. In addition Hanna had to work for five more years as the Dutch pension age is 65. Hanna decided to move on to another EU country, Germany, which has a pay as you go pension system similar to that of Austria. In order to find out about her German pension claims, Hanna had to provide documents which she had hardly ever heard of. The German authorities took more than a year to meticulously check Hanna´s grammar school certificates: They found her A-level certificate insufficient (which proof did Hanna  have that she really followed all the classes of the A-level class?) and finally delivered a twenty page document citing the German pension law and some pension points to which she would be entitled. Hanna still does not know how much pension she can expect from those pension points in Germany, but knows it will be definitely less than the Austrian or Dutch equivalent, and if she does not work at least five years in Germany she will not be entitled to any pension at all. Moreover Hanna will have to work until the age of 67, seven years longer than in Austria. At age 59, one year before her Austrian pension started, Hanna received another letter of the Austrians stating that her Austrian pension would be twenty five percent less than what had been originally calculated due to a pension reform. So Hanna, after her job travel through Europe as a real EU citizen, could finally return as relieved as her male counterpart Hans in luck (fairy tale by Grimm Brothers) when he ended up with empty pockets: “There is no woman under the sun as fortunate as I,” she cried out. With a light heart and free from every burden she now ran on until she was with her mother at home.

Comparison of United Nations and European Union Economic rights

Carmen Benavides Conzales, November 25, 2014

Economic rights are considered human rights and, as such, they are included in the Universal Declaration of Human Rights (UDHR), adopted in 1948, and in the International Covenant on Economic, Social and Cultural Rights (ICESCR), approved in 1966 and entered into force in 1976. In the EU, the corpus of fundamental rights of the Union’s legal order, as set out in article 6 of the Lisbon Treaty, contains three layers: the Charter of Fundamental Rights of the European Union (The EU Charter), the European Convention of Human Rights (ECHR) and fundamental rights as general principles of law. The Charter of Fundamental Rights of the European Union was proclaimed in 2000 by the European Parliament, the Council and the Commission in order to strengthen the protection of fundamental rights of European citizens. The Lisbon Treaty (2007), in its article 6(1), recognizes the rights, freedoms and principles set out in the EU Charter of 2000, as adapted at Strasbourg on 2007, and establishes that this Charter shall have the same legal value as the Treaties. Therefore, the Lisbon Treaty gives the EU Charter binding legal force. Making a comparison, we find that the fundamental economic rights (the right to an adequate standard of living, the right to employment and the right to a BIG), together with the right to property (including intellectual property) are recognized both by the United Nations and the EU. Nevertheless, a greater development of citizens’ economic rights can be appreciated as a specific characteristic of the EU Charter. This special development has to do with two aspects that are part of the socioeconomic context of the EU: the existence of a Common Market and its social model. In fact, the existence of a common market, has led the EU some specific economic rights of the European citizens, such as the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State, or the decision of ensuring a high level of protection to the European consumers. Besides, the traditional European interest to preserve its social model is reflected in the broad treatment given to the workers’ rights, or in the recognition of citizens’ access to services of general economic interest as a right.

Promoting Children as Active Citizens: the Role of Legal Clinics

Elle Long, November 19, 2014

Children are among the people who encounter most barriers to the recognition of citizenship, generally understood as the set of rights and obligations that make a person the member of a community. In fact, legal clinics can help children become active citizens by making them aware of their rights and enabling them to take an active role in their own protection against abuse, violence and exploitation. This is nothing new for countries where legal clinics have long been well known, both as a method of practical learning in law schools and as an instrument to provide free legal aid and pro bono work in areas of law which have a specific social impact and are not financially attractive for lawyers. On the contrary, in Italy legal clinics are a recent phenomenon. Only two universities, Roma III and Turin, run clinics dealing specifically with children’s rights. In Turin, the program is in its second year. Clinician students are given lectures on children’s rights and specifically on the importance of hearing children in family law proceedings as exercise of the right to freedom of expression of every child able to form his or her own views, and they are trained on interview techniques with children. The aim is to ensure that law students understand, respect and implement child-friendly justice from the beginning of their careers. Moreover, students come directly into contact with primary school children, an increasing number of whom are foreigners, lecturing them on children's rights and encouraging  them to explore ways to exercise their rights in their daily lives through the use of theatrical techniques. The experience has been fruitful. Clinician students reported that they were very satisfied, and they recognized that the program had helped them to become aware of the need for legal professionals involved in child protection to receive thorough multidisciplinary training. The children stressed that they felt "important" because they had been shown concrete ways to exercise their rights, and also because future judges and lawyers had paid attention to them, even recounting personal facts to explain why they had chosen a legal career in the field of children’s rights, showing them their places of work and study, and thanking them because that they had learned from them!

Citizenship, Free Movement and the Dano Judgement

Christopher Kissane, November 13, 2014

In recent months there has been considerable pressure on the idea of an unfettered right to free movement for EU citizens, especially those not in paid work. Belgium has sent letters to unemployed EU migrants ordering them to leave the country; Britain has called for a reform of the principle of free movement for EU citizens; and this week the European Court of Justice supported the German attempts to deny social welfare payments and the right of residence to EU migrants unable to financially support themselves. Populist parties and media across Europe have gained in popularity with anti-immigration rhetoric and claims of 'welfare tourism' by fellow EU citizens. Worries over migrants becoming a financial burden and not being able to support themselves are a very long-running anxiety for European communities. In medieval and early modern Europe, before the advent of national citizenships, rights to entry and residence in cities were generally heavily restricted to those migrants who could prove that they could support themselves through work or wealth. Access to welfare was often strictly reserved for citizens (the permanent members of the community). Poor migrants were viewed with suspicion that they might become a burden on local poor relief, but migrants with skills, work, and wealth were often accommodated. In the 19th and 20th centuries, national citizenship gradually gave Europeans a wider range of free movement regardless of employment or wealth, and EU citizenship has widened that further. The ECJ's judgement this week in Dano vs Jobcenter Leipzig, however, has reinforced the ambiguities at the heart of EU citizens' right to free movement. A citizen's right to reside in another member state is only unrestricted for three months: after that, they must be able to show that they can support themselves and their family, otherwise they must go home, to avoid becoming 'an unreasonable burden on the social system of the host Member State'. There is, however, little evidence that EU migrants generally become such a 'burden'. With much of European politics turning against migration, we must ask about the centrality of free movement to EU citizenship. Historically, many communities have not wanted to excessively restrict the movement of those with skills and wealth, and it is unlikely that member states would wish to do so today. But if citizenship only entitles one to short stays in other member states if one is not wealthy or employed, how fundamental can free movement really be to the concept of European citizenship? The free movement of labour and capital is a different principle to the free movement of citizens.

Family life & European citizenship: The Strasbourg Court Decision in Jeunesse v. the Netherlands

Hanneke va Eijken, November 12, 2014

In 2011 the Court of Justice of the European Union (CJEU) decided in its ground-breaking judgment Ruiz Zambrano that citizens of the European Union may not be deprived from their “genuine enjoyment of the substance of their rights” as European citizens. Consequently, in the case of Ruiz Zambrano, the Colombian parent(s) of two Belgium children had a derived right to reside in Belgium, to facilitate the children’s residence in the EU. In subsequent Dutch case law the issue arose whether in a mixed family consisting of one parent with the Dutch nationality and one with the nationality of a third country, both parents should have a derived right to reside in the Netherlands with a view to facilitate the enjoyment of the Union citizenship rights of dependent children. Up until now the Dutch courts have only granted a right of residence to both parents under very extreme circumstances. In most cases the Dutch courts ruled that dependent children with the Dutch nationality can reside in the European Union with one of their parents having the Dutch nationality. Hence, the third country national parent does, in principle, not have a right to reside in the Netherlands on the basis of European citizenship. In subsequent case law of the CJEU it became clear that also the CJEU takes a narrow view of what falls under the substance of  EU citizenship rights, which seems not include the right to family life. In Dereci the Court held that “… the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of European Union citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.” It is in this context that the Dutch case of Jeunesse has been decided by the Strasbourg European Court of Human Rights on 3 October 2014. The case concerned a Surinamese national who was refused a residence right in the Netherlands, although her partner and her children had the Dutch nationality and therefore the status of being a EU citizen. The Dutch courts did not accept the possibility to rely on either Article 20 TFEU or Ruiz Zambrano with a view to obtain a derived right of residence in the Netherlands. However the ECHR held that, under the exceptional circumstances of the case, “… insufficient weight was given to the best interests of the applicant’s children in the decision of the domestic authorities to refuse the applicant’s request for a residence permit.” The ECHR refers to family rights as a collective right, in which the rights of the family as a whole have to be taken into account. Hence, even though, Jeunesse had no right to reside and to family life on the ground of the status of her children as European citizens, she and her family were protected by the ECHR. The Court of Human Rights stressed that the circumstances in the present case are very particular. The fact that she had been living in the Netherlands for 16 years, that there was no link with the third country (Surinam) and that Jeunesse took care of her three children on a daily basis, were aspects that certainly added to the final outcome of the case. However, the decision of the ECHR may have more far-reaching consequences, as the considerations by the Court regarding family life are formulated in a more general fashion. Whether the judgment has such consequences need to be seen, but the case adds significantly to the existing case law on EU citizenship and Ruiz Zambrano. The judgment can be found here

What is work?

Sarah Walker, November 6, 2014

As is well known, the notion of free movement across the EU is based upon the idea of an ‘economic market’ and the worker citizen.  Indeed, the aim of the free movement directive was to enable workers from states with high unemployment levels to move to those with high labour needs, thus regulating supply and demand within EU labour markets. Nonetheless, in spite of, or perhaps because of the interactions of national and EU legislation and case law reinforcing the model of the worker citizen, what counts as work is somewhat vague. There is no autonomous definition of worker in EU law, rather its interpretation rests on EU case law and the definition has developed in a somewhat ad hoc and ill-defined manner. To attain worker status, work has to be deemed to be ‘genuine and effective’ and not on such a small scale as to be ‘marginal and ancillary’. Given the importance of worker status for exercising treaty rights, some member states – most notably the UK – have tightened up considerably on the definition of ‘worker’ in an effort limit EU nationals’ access to welfare benefits, thereby constraining the space for exercising European citizenship rights. In the UK, EU nationals have been found not eligible for social assistance on the basis that they do not have a ‘right to reside’ but also because they were not previously ‘workers’. Among other things, a new Minimum Earnings Threshold of £150 a week (equivalent to working 24 hours a week at National Minimum Wage) has been introduced, as a measure of whether work is ‘genuine and effective’. Potentially, then EU nationals in particularly precarious, low waged work may discover that, for the purposes of claiming welfare benefits, their work no longer counts as ‘work’ at all. Exploring constructions of insiders and outsiders for the purposes of WP10 has highlighted both how such constructions are constantly shifting, and the boundaries overlapping, and that hierarchies of in/exclusion reveal the linkages between citizenship and the labour market that have been present across time and place.

In the name of consumers? Public interest litigation in Europe

Olga Sendetska, October 28, 2014

Conference “In the name of consumers? Public interest litigation in Europe”, 15th-17th of October 2014, University of Bayreuth, Germany More than 50 academic and practicing professionals met on the 15th-17th of October 2014 at the University of Bayreuth, Germany, for a conference titled “In the name of consumers? Public interest litigation in Europe”. The event was organized by the Research Centre for Consumer Law (for more information see http://www.verbraucherrecht.uni-bayreuth.de/), in cooperation with the Institute of Advanced Studies Siegen (for more information see https://www.uni-siegen.de/fokos/). The conference was co-hosted by one of bEUcitizen’s own researchers – Prof. Christoph Strünck from the University of Siegen. The speakers focused on issues of consumer protection and collective redress, enjoying interdisciplinary perspectives. Prof. Frans van Waarden from the University of Utrecht - and one of bEUcitizen’s coordinators - gave an introductory talk on tensions between democracy and the rule of law. Contributions fit neatly into task 3 in work package 8 (“Political rights and the EU’s new policy of regulation by litigation”). Experts in law presented case studies on all countries to be analysed in task 3: Poland, Germany, the Netherlands, UK, France and Sweden. These contributions provided many useful inputs and insights into consumer rights and consumer protection. Additionally, bEUcitizen’s researchers Olga Sendetska, Christoph Strünck, and Frans van Waarden established new networks that will ease ongoing empirical analysis. The results of the conference will eventually be published in the form of papers in an edited volume. To find out more about the speakers and the topics addressed during the conference click here.

The impact of the economic crisis on EU-nationals mobility: new challenges for EU citizenship?

Monica Ferrin, October 22, 2014

After the economic crisis that has terribly hit the Eurozone – and the European Union more generally, new patterns of mobility have been identified among EU-citizens. Indeed, there has been in the last years an increasing flow of nationals of the countries more affected by the economic crisis – namely Southern European countries – to the EU member states less influenced by the economic crisis. From the most part, movers are high-skilled workers who escape from high levels of unemployment at the home country (source: Eurostat). This trend contrasts sharply with migration flows to Southern Europe in recent years. On the one hand, there is an increasing outflow of the working-age population – both EU-27 and non-EU nationals – as employment rates dramatically fell in these countries. On the other hand, good weather conditions and low cost of living encourage Northern European citizens in the age of retirement to move to the South. These two opposing trends might have an impact on how EU citizenship is re-shaped in the long run, as the economic burden on the country of residence might vary significantly from one situation to the other. Although the percentage of EU movers is still very low as compared with the total EU population, an additional challenge is imposed on the European Union, which needs to face an increasing asymmetry between those countries which are net receivers of workers, and those other countries which are net receivers of non-workers.

IS UNAWARENESS THE FIRST BARRIER?

Alice Perenzin, October 17, 2014

Italian girl, working and living in the Netherlands and, currently, doing a 4 week training placement in Brussels. This is the answer I gave when I asked myself: what does EU citizenship mean? Is this, however, enough? No, this aspect highlights the right to move and reside freely within the EU. Nonetheless, it is only the most evident facet of being an EU citizen. Then, a second question arose spontaneously: have I ever faced barriers to the exercise of my rights? Another unsatisfactory reply: not directly. My boyfriend is actually experiencing the lack of harmonization among the Italian and Dutch pension systems, struggling to find the best way to save money for its future retirement. I also know, through a close friend’s experience, what it means not to be an EU citizen. You cannot compete for a job in public competitions (both national and European) or apply for all those programs where it is compulsory to be a national citizen of a Member State. When looking for a job, EU citizens are preferred to non-EU citizens also if the latter might be better candidates. Finally, I tried to pose these questions to other trainees I met in Brussels. Only after their silence and indifference I understood that the real barrier to EU citizenship is the lack of awareness of its existence. They mainly told me that they have never thought about it. The most interesting answer, though, came from a British girl. She thinks that in the UK a lot of people feel rather separate from Europe, speaking of “Europe” as if they weren’t part of it. Not being part of the Schengen zone increases this feeling, reinforced by the fact that not many British people study languages, so they do not learn that much about other European cultures. She participated in an Erasmus exchange program, which definitely changed her perspective. I realized hence that we are living in a time where the concept of EU citizenship is still not really understood. The EU is yet facing the indifference of its citizens. Programs such as Erasmus, Leonardo, and so forth are extremely important not only for the future of its participants but above all for the EU itself. Only if nationals of the Member States are aware of being also EU citizens (and aware of the importance of this status) we can really focus on which are the barriers to the exercise of the rights deriving from the EU citizenship.

Citizenship and the city-state: lessons from history?

Chris Minns, October 2, 2014

Predictions that the city-state will dominate the future abound.  The idea has featured prominently in writings by pundits and futurists in recent publications in the Economist, Forbes, and elsewhere.  Paul Romer’s controversial model of the charter city has spawned an intense debate amongst academics and in the blogosphere.  But city-states are hardly new: they were a common feature of the European landscape for centuries, before the arrival of modern, centralised nation states in the decades following the French Revolution.  Prior to 1800, the rights and obligations associated with citizenship were usually attached to an urban polis.  Are there lessons from the past practice of urban citizenship for new proposed forms of urban-centred political organization? One message from the past is that multiple models of urban citizenship can coexist.  Prior to 1800, the purchase of citizenship, or acquisition through the service of an apprenticeship, was common for those seeking entrance to urban guilds in most parts of Europe.  Some cities in England and the Low Countries, however, had citizenship regimes that were more liberal, with inheritance and even birth right providing an entitlement to the status.  The different models of citizenship had implications for the share of the population with rights.  Where the availability of citizenship was relatively exclusive, a quarter of households had a citizen present, a rate which compares favourably to city-states in the Gulf Region today.  The share of households with citizens in liberal cities in the Northern Netherlands was not too different from what is found today in smaller European nation-states such as Luxembourg or Switzerland with large migrant shares of population. But even the most extensive forms of urban citizenship fell well short of the “open city” envisioned by some.  Any future city-states will be confronted with the reality that the incumbent residents have an interest in excluding outsiders from the full economic, social, and political rights associated with citizenship. A second message is that demographic and technological changes have unanticipated effects on how urban institutions interact with their potential constituents. Urban citizenship declined in importance with the beginnings of sustained population growth in the late 18th century.  The evidence suggests that demand for citizenship fell with the growth of suburban areas and the rise of new economic activities outside of the remit of the established urban order.  In the city-states of the future, residents may not simply “vote with their feet” among cities, but also choose not to fully engage with available civic institutions, potentially undermining the successful operation of these urban spaces.

Citizenship of the EU? More than a set of rights

Petr Kaniok, September 4, 2014

Europe cannot be studied properly only by reading books and articles written by someone else, or by merely analysing the data somebody else collected. In particular because in the political context, theory and practice differ (both on the domestic and international level). Therefore, researchers in the area of European integration should travel a lot – for conferences, seminars, but also for short term stays or study visits. As researcher interested, inter alia, in European Union’s institutions and political system, I went on a three-months study visit at the Permanent Representation of the Czech Republic to the European Union. This visit took place last autumn and I saw it as a great opportunity to have a unique perspective on the EU - where European and national levels are by definition combined. And indeed, it was a great experience. However, even researchers might have a wife and child (or children), and three months is a long period. So, in the middle of my stay they came to visit me. During the second day of their stay, we set out to visit all the famous places in Brussels: Grand Place, Manneken Pis and… We did not see any more that day because exactly in front of Manneken Pis, I was robbed. Of course it was my fault, I was focused too much on how to carefully push the baby carriage with my daughter through crowds. The rest of the story speaks for itself – wallet containing not only cash but also driving license and cards was gone. I desperately started checking dozens of trash cans, but unfortunately I did not find my belongings. Police station. Protocol. The End. When I sometimes look back at that day (and it is very useful to remember your own mistakes, believe me), I remember that I was angry and probably swore for a while. But I felt safe and comfortable because I knew what to do and where to go. It may sounds strange but it is true. I knew that I can go to the police as if I were in my own country. I was somehow aware that I am in my “territory”, even while being abroad. I would lie to say that I felt like a European citizen – but I am sure that the existence of European citizenship helps to create feelings of such safety. A feeling of safety that goes beyond the set of formal rights that EU citizenship grants to each EU citizen. I think that this is not a small accomplishment but a rather big one, after only 20 years of EU citizenship.

The interstate requirement for European citizenship: still alive and kicking?

Sybe A. de Vries, July 31, 2014

For European citizens to claim rights on the basis of EU law – save for special circumstances – there should be an interstate requirement. Or, in other words, European citizens should have exercised their free movement rights before a number of important rights attached to European citizenship becomes available. This interstate element is vital, as it is about the division of competences between the EU and its Member States. If the cross-border requirement is not met, national law will apply. Notwithstanding its strong dogmatic foundation, the interstate rule is subject to criticism due to various legal, political and practical problems it entails. The fact that the rights of EU citizens are largely ensured through the model of free movement, by prohibiting discriminatory measures as well as restrictions, might result in reverse discrimination. After all, the treatment of a Union citizen in his or her own Member State, without there being a cross-border dimension, is not governed by EU law. This implies, for instance, that national measures that are more stringent for that Member State’s own nationals cannot be set aside on the basis of European law, creating a gap between migrating and static EU citizens. Advocate General Sharpston in the renowned Ruiz Zambrano case nicely illustrates how in certain instances the interstate requirement leads to strange and illogical outcomes. The Colombian Ruiz Zambrano’s had applied for asylum in Belgium because of violence by private militants in Colombia. However, the Belgian authorities refused their requests. Nevertheless, they were not actually deported and a couple of years later two children, Diego and Jessica, were born obtaining the Belgian nationality. As the Zambrano’s were threatened to be expelled from Belgian (and EU) territory, they invoked EU law to claim a right of residence on the basis of Jessica’s and Diego’s status as European citizens, who were in the care of their third country national parents. The question was whether EU law could apply here, as they had never been outside Belgium and crossed a border. According to Sharpston “[…] if one insists on the premiss that physical movement to a Member State other than the Member State of nationality is required before residence rights as a citizen of the Union can be invoked, the result risks being both strange and illogical. Suppose a friendly neighbour had taken Diego and Jessica on a visit or two to Parc Astérix in Paris, or to the seaside in Brittany. They would then have received services in another Member State. Were they to seek to claim rights arising from their ‘movement’ it could not be suggested that their situation was ‘purely internal’ to Belgium. Would one visit have sufficed? Two? Several? Would a day trip have been enough; or would they have had to stay over for a night or two in France?” The Court of Justice held that their fundamental status as a European citizen gave them a free-standing right under Article 20 TFEU (establishing EU citizenship) to reside in Belgium. But soon after this ruling it became clear that Ruiz Zambrano remains rather an exceptional judgment. Meanwhile there have been tendencies in the case law of not interpreting the cross-border requirement too strictly. More recently the Court had once again the chance to rule on the interstate requirement and the degree of free movement that is needed for EU citizens to claim their rights under EU law. In the cases C-456/12 O & B and C-457/12 S and G, which concerned third country family members of Dutch citizens, who had moved to other Member States, or who have been working in other Member States. According to the Court the residence in the other State must be genuine to enable the citizen to create or strengthen family life in that State. It does, for example, not suffice that the European citizen had moved in the past to claim a resident right for his third country national family member in his own State now. Hence, apart from cases decided on Article 20 TFEU – the Zambrano-type situations - the interstate requirement still seems to be alive and kicking and so is the debate on whether it is actually flawed or not. Should in situations where important fundamental rights of citizens are at issue not all European citizens, irrespective of whether they have crossed the border or not, be protected in the same way?

Third Country Nationals: included or excluded?

Bridget Anderson, July 28, 2014

The establishment of EU citizenship in 1992 entailed the establishment of the ‘Third Country National’ (TCN). As citizens of EU member states became EU insiders so citizens of non-EU states were turned into EU outsiders. The first deliverable of Work Package 10 explores the complex dynamics of insiders and outsiders, and their mutual dependence. For inclusion and exclusion are in practice seldom binaries, but marked by differential inclusion and exclusion: EU nationals residing in an EU state of which they are not a citizen are not totally included – and importantly, neither, necessarily, are nationals, Roma people for instance may have formal national citizenship but may be excluded in multiple ways. Neither are TCNs totally excluded: TCNs with legal permanent residence can enjoy many of the rights of citizens of the state where they reside (though not rights as EU nationals) and ‘Accession state nationals’ sit between EU nationals and TCNs. There are multiple axes of in/exclusion. WP10 focuses on three intersecting axes: mobility, naturalisation, and welfare benefits to explore the ways in which ‘citizenship’ is both a legal and a normative status. The six states under consideration (Croatia, Ireland, the Netherlands, Spain, Israel and the UK), enable us to consider EU, new member and non-EU states, states with different immigration and citizenship histories, and a range of different welfare regimes. It is not simply that the citizen is deserving and the migrant undeserving, but that there are (un)deserving citizens and (un)deserving migrants. The report is available in the publications section of this website.

Nordiskt Forum Malmö 2014 and barriers to women’s rights

Pauline Stolz, July 18, 2014

During 12-15 June 2014, about 20.000 mainly Nordic activists and other stakeholders with an interest in gender equality and women’s rights visited Malmö, Sweden, to attend “Nordiskt Forum Malmö 2014 – New Action on Women’s Rights”. Malmö surely vibrated of a strong presence of feminists these days. The background to the Nordiskt Forum, the final document and the immediate controversy over the presentation of this document at the closing ceremony is at the same time cause for more mixed feelings over the progress in gender equality issues in this part of the world. The Forum itself is a continuation of Nordic conferences in Oslo (1988) and Turku (1994) and of the Fourth UN World Conference on Women in Beijing (1995). Currently there is a general fear that gains in women’s rights will be watered down or removed if a new UN conference is organized due to progress by fundamentalist and religious forces. Interestingly, the framing of rights at Nordiskt Forum is on national and human rights. EU rights are only addressed in the background. The final document was presented to Nordic Ministers of equality and showed the poor state of affairs in Nordic gender equality in areas such as care work, political participation and migration. Sharp criticism was forwarded in the social media over the presence of the Norwegian minister and the lack of criticism of the politics of this anti-immigration politician. Also here are conservative forces challenging rights. (See also www.nf2014.org.)

Europe’s divided identity

Maarten Prak, June 17, 2014

The European elections in May have once again pitted the EU against national identities. In many countries so-called Eurosceptic parties carried the day. This happened most notably in the UK, where the UK Independence Party (UKIP) won by a landslide, humiliating the established parties, and most comprehensively the Liberal Democrats, whose leader wears his European identity – his mother is Dutch and his wife Spanish – proudly, but received a beating at the ballot box in return. Or so it seems. But now look again. One of UKIP’s own candidates was one Przemek Skwirczynski, who in January 2014, on behalf of an organization called ‘Friends of Poland in UKIP’ asked British prime-minister David Cameron to show ‘more respect to Poles in Britain’. If even UKIP sees things this way, what does this tells us about national and European identities? Historically, Europeans have been very good at combining a variety of perspectives when it comes to the communities they belong to. Before the French Revolution, citizenship as a formal status was limited to local, more specifically urban contexts. Rights of citizenship established a formal position within the urban community. At the same time, however, those local citizens saw themselves as members of a larger, national or proto-national, community. Dutch rebels in the late 1560s, when they still had to establish a nation during the early stages of the Dutch Revolt, nonetheless already sang about ‘the fatherland’ in the very first verse of what was to become their national anthem. That same verse has William of Orange, leader of the Dutch rebels but also sovereign of a principality in Southern France, proudly declare his German roots and loyalty to the King of Spain. No problems with European identity for him, or for his followers singing the song! The lesson seems to be, that EU politicians and officials should indeed worry about the support for their policies. At the same time, they have a substantial stock of political and cultural capital to work with, even among those so-called Eurosceptics.

The XXVI FIDE Congress in Copenhagen, 2014, regarding Union Citizenship and other important EU topics

Ulla Neergaard, June 12, 2014

More than 400 top lawyers from all over Europe met from 28 to 31 May 2014 at an international congress in Copenhagen to discuss, amongst other things, Union Citizenship. Other central topics were: the Economic and Monetary Union, public procurement law, legal pluralism, and the EP elections. Many high-level speakers were given the opportunity to address the audience on these highly pertinent topics.

The FIDE organisation (Fédération Internationale pour le Droit Européen) holds a congress every other year at which lawyers from all over Europe take the temperature of various EU related challenges. President Skouris of the Court of Justice of the European Union has referred to these FIDE congresses as undoubtedly the most important academic events concerning European Law. The congress this year was organised by the Danish Association for European Law (DFE) in collaboration with the Faculty of Law, University of Copenhagen. Attending the congress were lawyers that work on a daily basis as experts, advisors, judges, lawyers and researchers in EU law and it was therefore a unique opportunity for theorists and practitioners to meet and challenge each other on legal issues in the EU. Judges and others from the European courts were strongly represented and played a significant role.

Regarding Union Citizenship, the internationally highly acknowledged Professors Jo Shaw and Niamh Nic Shuibhne were beforehand appointed as General Rapporteurs, and Michal Meduna from the European Commission as the Institutional Rapporteur. They had all elaborated thorough and interesting analyses partly on the basis of studies of the law in 23 different Member States. All these reports were published in a book which all congress delegates received at the congress. Many of the conclusions are surprising and important as the reports provide a comprehensive picture of weak spots (a preview of the results of these reports and discussions may be found at http://news.ku.dk/all_news/2014/05/report-uncovers-the-tender-spot-in-relation-to-eu-citizens-rights/ ).

The mentioned reports are published in a book edited by Ulla Neergaard, Catherine Jacqueson and Nina Holst-Christensen entitled: 'Union Citizenship: Development, Impact and Challenges. The XXVI FIDE Congress in Copenhagen, 2014. Congress Publications Vol. 2’. It contains approx. 900 pages and may be purchased for 30 Euro plus the cost of freight by contacting: The Danish Association for European Law, att.: Jette Nim Larsen - JNL@horten.dk. The other two congress books concerning the Economic and Monetary Union and public procurement law respectively are also available for purchase on the same terms. Speeches – including the summary of the discussions on Union Citizenship - held at the congress will soon be published at: www.fide2014.eu.

How Does a Nation of Immigrants Deal with an Influx of Asylum Seekers and Labour Migrants?

John Gal, May 19, 2014

Israel was established as a haven for the Jewish people after the Holocaust. In the years since, it has seen the influx of millions of Jewish immigrants who joined the Jews and Arabs (and their descendents) who lived in this country prior to the establishment of the State of Israel. Indeed over a quarter of Israel’s eight million residents are foreign born. Reflecting its founding logic, Israel’s immigration regime is such that any Jew is eligible to immigrate to Israel and to receive citizenship rights upon arrival. The largest recent wave of such immigration was that of a million Jews from the former Soviet Union in the early 1990s. While uniquely inclusive with regard to immigrants of Jewish origin, the immigration laws are strongly exclusionary regarding non-Jewish immigration.

This immigration regime has been tested significantly of late. First, the country witnessed a wave of non-Jewish labour migrants from Asia, Africa and South America in the first decades of the 2000s. More recently, an influx of 50,000 asylum seekers from Sudan and Eritrea, who crossed the Egyptian border to enter Israel, have created a major dilemma for Israeli society.

The impact of a large group of non-Jewish immigrants in Israel has led to heated debate on the need to rethink the country’s immigration and labour policies. The economy is clearly dependent upon the labour migrants and international law and many Israeli’s own experiences of discrimination and immigration create pressure to deal justly and humanely with the non-Jewish immigrants, particularly refugees. On the other hand, xenophobic attitudes and the detrimental impact of low-paid labour migrants have led to government efforts to act forcefully to deport migrants and prevent others from reaching the country.   Not unlike other welfare states, Israel will have to deal head-on with issues of immigration and the rights of refugees and asylum-seekers in the coming years and perhaps to rethink its immigration policy.

Knowledge transfer and intellectual property rights: obstacles and barriers to a free access to information by EU citizens.

Paolo Guarda, May 13, 2014

In today’s global world, generating new knowledge and turning it into new products and services is crucial to maintain and enhance the EU’s competitiveness. Innovation positively impacts on citizens’ lives in very different ways. However, transforming the results of scientific research into commercial products and services represents a complex process involving a broad range of players. We need to ensure that researchers and private companies work closely together and maximize the social and economic benefits of new ideas and creative works. Highlighting the importance of exploiting Europe’s research results, we should create a framework which facilitates this process, removing the barriers that hinder collaboration among research institutions, companies and citizens. Thus, it is worth to ensure that Europe operates as a «single market for knowledge» and to develop, platforms where the European scientific community and European industry can work and innovate together. Efficient knowledge transfer within EU is hindered by an array of factors (including cultural differences between the business and science communities; lack of incentives; legal barriers; and fragmented markets for knowledge and technology) that adversely affect European growth and development. The lack of harmonized intellectual property rules and effective contractual instruments results in an inefficient system of circulation of knowledge. For instance, within the academic context the nebulosity related to ownership regimes of research results gives rise to uncertainty and therefore to higher transaction costs. This implies an unjustifiable lack of access to knowledge by the society. With regard to knowledge production and diffusion, cyberspace changes profoundly the scenario which characterized traditional IPRs, triggering new issues. Information technologies, and especially the progressive use of Internet, have transformed the mechanism of creation, transmission and reproduction of knowledge. In particular, a rigid and centralized control of information contrasts with a flexible and decentralized approach to it. Promoting progress and circulation of information in the digital age may require a more sophisticated understanding of the new digital works’ market. In this specific scenario, IPRs, and in particular copyright law, do not always guarantee incentives; they often just protect the traditional business model, apparently no longer viable. EU continues to strive for the further harmonization of the internal market: how can EU policies and legislation bring down the barriers in the information circulation area? Research in this field should seek to analyze of this is possible and how, by approaching the question in a multi-disciplinary way.

Regulation not rights? German regulatory agencies might grow stronger

Christoph Srrück, May 8, 2014

In recent years, German competition authorities seemed to get more aggressive. Andreas Mundt, head of the federal cartel office, has turned the agency into a frequent player at German courts. Big companies have suffered major defeats, pouring huge fines into the public purse. However, when it comes to protecting consumers’ rights, the federal cartel office has been handcuffed to statutory law. Enforcing consumers’ rights has not been part of its legal mandate. Yet times they are changing. The ruling coalition government of Christian Democrats and Social Democrats seeks to overhaul consumer protection. One of the boldest plans is to adjust statutory rules of several regulatory agencies. Among those agencies are the Agency for Financial Services (Bafin), the Federal Network Agency (Bundesnetzagentur) and the Federal Cartel Office (Bundeskartellamt). Those plans have sparked controversy among experts. Some hint at countries such as the UK or the Netherlands where watchdogs and regulatory agencies powerfully protect consumers. They argue, too, that public interest litigation cannot replace comprehensive policies. Other pundits prefer public interest litigation to stronger regulation. They point out that privately enforcing rights is a more effective and more efficient way in a common European market. If the government delivers, Germany will resemble other European countries. However, some successful paths of public interest litigation might be blocked. How this policy affects European consumer rights and competition policy is still open to scrutiny.

European citizenship & Gender equality: Different paths or coming to a crossroad?

Hanneke van Eijkenm April 29, 2014

The year 2013 was designated the European Year of Citizens, ‘to enhance awareness and knowledge of the rights and responsibilities attached to Union citizenship’. In this European Year of Citizens the European Commission published its EU Citizenship Report 2013, ‘EU citizens: your rights, your future’. This report builds upon the EU Citizenship Report published in 2010, in which the obstacles with which EU citizens are confronted were discussed in detail. In the 2013 report, actions to improve the exercise of EU citizenship rights have been announced by the Commission. No specific gender related issues are included in the report, but increasing gender equality could improve the exercise of the rights attached to European citizenship as the case of Saint Prix, pending at the Court of Justice of the EU, reveals.   This case concerns two questions of the UK Supreme Court on Directive 2004/38/EC. According to Article 7 (3) of the Directive, the right to residence in a host Member State should be granted to a Union citizen for a period of more than three months when he or she is qualified as a “worker” in the sense of EU law. A Union citizen who is no longer a worker or self-employed person will retain the status of worker or self-employed person, when he/she is inter alia, temporarily unable to work as the result of an illness or accident. Ms. Saint Prix is a French national, who has been residing and working in the UK since 2006 on the basis of Directive 2004/38. She became pregnant and her baby was born prematurely. As a consequence Ms. Saint Prixcould not work for three months, which resulted in the loss of her status as a worker. The question referred by the Supreme Court is whether Article 7 (3) of the Directive also concerns a woman who reasonably gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy (and the aftermath of childbirth)’? If Ms. Saint Prix loses indeed her status as a worker, because of her temporary unavailability on the labour market as a consequence of her pregnancy, she also loses her EU citizenship right to reside in another Member State.   This pending case demonstrates the potential connection between free movement and gender related issues in terms of removing obstacles for the exercise of EU citizenship rights and highlights the need to place such an issue on the European agenda. Moreover, the case shows where challenges lie ahead in terms of gender equality in the broader context of EU law. As the Commission stated in its most recent Strategy for Equality Between Women and Men with regard to gender mainstreaming, ‘the impact of EU legal measures, policies and spending programmes on both women and men needs to be taken into account in all areas’. Such an integral approach is certainly needed, including in areas outside the scope of the specific gender Directives.   Hence, pregnancy and the right to effective reconciliation of work and family life are important issues for European citizens when they exercise their right to free movement (Article 21 TFEU). As the Saint Prix case reveals, pregnancy, and pregnancy related illness, may create obstacles not only to exercise of the right to move and reside freely as a European citizen in another Member State, but also to the personal scope of protection. From that perspective, the need for a holistic approach to ensure gender equality is integrally implemented in all policy areas is telling.   * This blog is based on the editorial ‘European Citizenship, Gender Equality and Fundamental Rights: Different Paths or Coming to a Crossroads?’ by Hanneke van Eijken, LLM., published in the European Gender Equality Law Review 2013-2: http://ec.europa.eu/justice/gender-equality/files/law_reviews/egelr_2013_2_final_web_en.pdf.

The Crisis as a possible turning point for the emergence of new forms of citizenship and democracy

Birte SIim, April 22, 2014

The European elections in May 2014 could be a landslide victory for EURO-skepticism, strengthening anti-EU Rightwing parties across Europe. The growth of EURO-skepticism is a threat to European citizenship and democracy. The main story-line is that the growth of Rightwing populism is explained by citizens’ concerns about growing immigration, unemployment and poverty followed the adoption of austerity politics by Liberal, Conservative and Social-Democratic European governments. The issue of welfare rights has recently become part of the public agenda even in the richer Nordic welfare states and arguably threatens the right to mobility for EU-citizens across national borders. Austerity policies have created protests, desperation and apathy by European citizens. The crisis can, however, also be an inspiration for another story-line about the need for radical changes of European citizenship and democracy. The crisis can also be interpreted as a turning point for citizenship and democracy. It has inspired new forms of solidarity movements and initiative across Europe ‘from below’, often crossing the Left and Right divide, and new forms of citizenship practice and of dialogue democracy have emerged at the neighborhood, community and local level, especially in the countries that have been hit the hardest by the crisis, i.e. Greece, Spain and Italy. One challenge for researchers is to make these multiple initiatives visible to European citizens. Another challenge for European politicians is to connect these scattered initiatives ‘from below’ with democracy and politics ‘from above’.

What level of protection? European and domestic standards at stake: the Melloni case at Spain's constitutional court

Javier A. GONZÁLEZ VEGA, March 27, 2014

Article 53 of European Charter of Fundamental Rights states that “Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions.” (Emphasis added). This provision lays at the core of a recent decision from the Spanish Tribunal Constitucional (Constitutional Court)  issued on 13 February  2014 (STC 26/2914[1]), which dismisses Mr. Melloni´s “recurso de amparo” (petition for constitutional protection) and confirms a previous decision from Spain’s Sala Penal de la Audiencia Nacional (Criminal Division of the High Court). The main questions addressed in this case are highly interesting for a number of reasons:  on the one hand, this is the first occasion in which the Tribunal Constitucional requests a preliminary ruling (in application of a previously issued Auto –Order– 86/2011 from 9 June[2]). On the other hand, as it is widely known, the Judgment of the Court of Justice of the European Union of 26 February 2013 (Stefano Melloni v Ministerio Fiscal, Case C-399/11) further defined the rights of defense and legal protection of a European citizen as guaranteed by Articles 47 and 48 of the European Charter of Fundamental Rights, thereby establishing that the European standard of protection of fundamental rights should not be overlooked, even in those cases in which the own national standards of Member States are higher than those deriving from the Charter. The case deals with the execution by Audiencia Nacional of a European Arrest Warrant (Framework Decision 2002/584/JHA of 13 June 2002, Council Framework Decision 2009/299/JHA of 26 February, Law 3/2003 of 14 March, and Organic Law 2/ 2003 of 14 March), issued by Italy regarding an Italian national, Mr. Melloni, resident in Spain and sentenced in absentia in Italy. The Spanish Audiencia Nacional decided on the extradition of Mr. Melloni without holding a second criminal trial, and this decision was challenged by means of a recurso de amparo before the Tribunal Constitucional on the grounds that Mr. Melloni´s right to a fair trial was violated because he was being extradited without the possibility to review his conviction in absentia. Order 86/2011 from the Tribunal Constitucional poses three key questions to the Court of Justice of the EU: (i) whether a Framework Decision on a European arrest warrant can be interpreted in such a way that extradition, without being refused, may be conditional upon the possibility of holding a second trial; (ii) whether such a Decision is not contrary to the protection of the right of defense established in Articles 47 and 48 of the European Charter of Fundamental Rights; and (iii) whether the protection deriving from Article 53 of the Charter is higher than that established by the European system (in the context Tribunal Constitucional’ judgement STC 91/2000). The EU Court answered that the extradition may be conditional upon holding a second trial within the context of the provisions of the Framework Decision, but held that this was not possible in the present case because (i) Mr. Melloni was aware of the forthcoming criminal proceedings, as he had appointed a lawyer, (ii) the European arrest warrant concerned was completely in accordance with the European system of fundamental procedural rights, and (iii) it is not acceptable that a State refuses to comply with a Framework Decision upon the grounds that its system of constitutional guarantees is higher the European standard. In its decision of 13 February the Tribunal Constitucional –after referring to its previous pronouncements on the relationship between Spanish law and the law of the European Union (Declaration 1/2004 of 13 December)–  laconically –in a single paragraph- accepts these allegations. This position, however, has not prevented some Spanish constitutional judges –perhaps more in favour of a stronger pro-European approach– from criticising the prompt acceptance of the EU Court’s point of view (see Concurrent Opinions of Ms. Asua and Ms. Roca). Although some others have complained that “the best way to inaugurate what seems to be a laborious “dialogue between the Courts” (the Spanish Constitutional Court and the European Court of Justice) is to unnecessarily turn it into a monologue that needs to be accepted.” (see Mr. Ollero, Concurrent Opinion).

Croatian citizenship regime and its challenges following the EU accession

Viktor Koska, March 19, 2014

Following the first two decades of Croatian independence it may be argued that Croatian citizenship regime was marked by one distinctive feature: it seems that all scholars involved in the research of its various aspects agree that it promoted a specific idea of Croatian polity in which ethnic Croats, regardless of their residence, constitute a core nation of the new state. However, since Croatian Constitution defines Croatia as a national state of Croat nation, but also recognizes the existence of twenty two additional national minority groups, the debates on the Croatian citizenship[1] resulted in the competing theoretical descriptions of its nature: authors such as Hayden (1992) argued that in early 1990s it was a typical example of Constitutional nationalism, in which the newly elected Croatian political elites utilized key constitutional legislation to promote interests of ethnic Croats, often on behalf of the interests of various categories of ethnic minorities. On the other hand, constitutional provisions that nominally granted an opportunity for a wide scope of minority rights were interpreted by several Croatian scholars as an example of constitutional protection of minority rights which is in the line of the principles of the contemporary liberal democratic states. Finally, authors such as Štiks argue that following the turbulent 1990s, Croatian citizenship regime witnessed such changes that today it is an example of Smooha’s model of ethnic democracy. However, in order to fully comprehend the evolution of Croatian citizenship regime, once has to put its analysis into the wider complex political context and to relation to particular political goals that Croatia aimed to accomplish from its independence till today. During the 1990s, Croatia’s primary goal was to consolidate its statehood. Besides the challenges that most of the post-communist countries faced in this period, such as transition to democracy and to free market economy, Croatia had to establish its statehood in the context of the break-up of the former multi-national federation. The Croatian nationalist elites of the 1990s perceived the new state to be a national state of Croat ethnic nation, in which other ethnic groups can be granted the status of national minority, but not a status of one of the constitutive nations. As Štiks (2010) argues, the new citizenship legislation, enacted in 1991, differentiated between the included (former citizens of Socialist Republic of Croatia), excluded (former residents of Socialist Republic of Croatia, who did not have Croatian citizenship and were not of Croat ethnicity) and invited categories of potential citizens (all ethnic Croats, regardless of their citizenship or residency).  Supported by Serbian nationalist elites from Belgrade, and opposing the newly proclaimed Croatian independence from Yugoslavia, a part of the Croatian Serb population rebelled against the Croatian state, and established a self-proclaimed republic of Serbian Krajina. Following such events, Croatian path towards a full statehood developed through the violent conflict during the 1990s. However, by the end of the decade Croatia managed to accomplish most of its state building goals: it managed to gain international recognition, in 1995 it launched a military campaign with which it took control over the most of the rebelled territories, by the end of 1998 the remaining territories under the Serbian control peacefully integrated to Croatia and following the established operative control over its internationally recognized borders it further consolidated membership criteria to its polity. With the end of the 1990s, once the establishment of stable statehood became accomplished goal, Croatia moved toward EU accession as a new national priority. The negative consequences of its citizenship regime, which were the outcome of the turbulent political processes of the previous decade, slowly began to be resolved, partially as the consequence of the changes in Croatian political landscape, but also as the outcome of the external pressures during the EU accession negotiation process. For the most of the Serb refugees that left the country during the 1990s, access to Croatian citizenship was eased and Croatian authorities got actively engaged in the resolving the obstacles for their safe return. In addition, new minority legislation was enacted which nominally granted a high scale of cultural rights to ethnic minorities. Finally, with the number of successful pride parades, and gradual increase of affirmative media attention towards gay population, it seemed that Croatia was rapidly developing into a more inclusive and tolerant society. Finally, on 1st July 2013, Croatia became 28th EU member state. So, what are the experiences of the Croatian citizenship landscape following the first eight months of its membership in EU? In contrast to the trend of widening the scope of public visibility and granting the rights of the various categories of minority citizens, clearly evident in the late 2000s, there is a general agreement among academics, politicians and journalists that after the accession Croatia witnessed a process which was by media often marked as „conservative revolution“. On 1st December, following the public campaign launched by the conservative organization U ime obitelji (In the name of the family), Croatia had its third national referendum since independence (the first was the referendum on Croatian independence held in May 1991 and the second on Croatian accession to EU in January 2012.). Even though Croatian legislation has a very high threshold for citizens’ signatures needed for referendum to be held (namely, ten per cent of all registered voters in Croatia need to sign the petition in order to make a holding of referendum on particular issue mandatory) making it very difficult to held a referendum not initiated by the Croatian institutions, U ime obitelji did not have any difficulties to attract much higher citizen support for its cause than it was demanded by law. Furthermore, even though Croatia is experiencing a deep economic crisis, this cause was not on one of the alarming issues related to Croatian economic or social policy. Instead, it demanded a constitutional definition of marriage as a life-long union between man and woman, even though similar definition of marriage already existed in Croatian Family Law. These requests were made in the eve of the parliamentary discussions on the bill which, among other issues, had to regulate same sex partnerships, and for the most parts of the Croatian gay and queer community and left-centre intelectuals the demand for referendum was recognized as a blatant attack on the principles of equality of citizens regardless of their membership to any identity category. Even though the referendum turn-out was very low (37,9 per cent), U ime obitelji managed to win a high support for their cause (65,87 per cent )and introduce a novel definition of marriage to Croatian constitution. On the other hand, generous provisions of the Croatian constitutional law on national minorities, which granted a right of equal official use of minority language and script for minorities which constituted at least one third of total population at the particular unit of local self-government, were aggressively contested by right wing political parties and organizations of Homeland war veterans as soon as the preconditions for its implementation were met in practice. According to the last census held in 2011, Serb minority reached that proportion in population in town Vukovar. However, Vukovar hold a specific place in Croatian recent history and political memory. It may be argued that it is one of the pillars of the Croatian symbolic politics. Being violently destructed by the siege of Serbian paramilitary troops and Yugoslav national army in 1991, and ethnically cleansed from non-Serb population following its fall, in Croatian collective memory it is a symbol of victory and heroic struggle. However, it is also often utilized in public as a device for imposing a collective guilt for war on all members of Serb minority in Croatia today. Hence, the possible introduction of Serb language and Cyrillic alphabet on the same foot with Croatian language in the official posts, resulted in riot and another campaign for referendum in Croatia. This time, the initiators of anti-Cyrillic alphabet in official posts in Croatia demand a referendum according to which citizens will be able to decide whether they want a modifications to Croatian law on national minorities, according to which a threshold to exercise minority language as an official language of the local unit of self-government will be reserved only for those minorities which form at least a half of total population of such unit. Considering the named issues that have been raised in Croatian public lately, following the full membership to EU, it may be concluded that while the status dimension of Croatian citizenship remains uncontested (in Joppke’s (2007) terms the rules and procedures for acquisition of citizenship) the rights dimension and identity associated to such status and rights remains a contested field of symbolical struggle in Croatian political arena. How it will evolve with the longer experience as a full EU member, remains to be seen.   Viktor Koska   Faculty of Political Science, University of Zagreb   Bibliography   Hayden, R. 1992. 'Constitutional nationalism in the formerly Yugoslav Republics'. Slavic review, 51: 654-673 Joppke, Christian, 2007: Transformation of citizenship: status, rights, identity. Citizenship studies, 11 (1), 37–48. Koska, V., 2011. The evolution of the Croatian citizenship regime: from independence to EU integration. CITSEE Working Paper 2011/15. Edinburgh: School of Law, University of Edinburgh. Ragazzi F., Štiks I. & Koska V., 2013. Country Report: Croatia. EUDO Citizenship Observatory. Robert Schuman Centre for Advanced Studies. European University Institute. Štiks, I., 2010 The citizenship conundrum in post-communist Europe: The instructive case of Croatia. Europe-Asia studies, 62 (10), 1639–1660.  

 
[1] For the more detailed overview of the development of the Croatian citizenship regime and existing Croatian citizenship legislation see: Koska (2011), Ragazzi, Štiks and Koska (2013)
Outside the European Union Inside the European Union: the case of Direct Provision in Ireland

Graham Finlay, March 12, 2014

On February 28, 2014, University College Dublin’s Human Rights Network hosted an event describing the ongoing practice of direct provision for seekers of asylum in Ireland. Begun during Ireland’s economic boom and ostensibly in response to a rapid rise in asylum applications, direct provision is a remarkable case of how a whole group of people, including many children who know no other home, can be placed in a legal and spatial limbo. Asylum seekers are provided with housing (often in shared rooms) in centres that are largely former hotels, hostels and holiday camps and meals and pocket money of €19.10 per adult and €9.60 per child per week, a sum unchanged since direct provision was begun in 2000. They receive a medical card and access to primary and secondary education, but no other supports. They are prevented from working no matter how long they have been in the system and many of them have been in the system for over six years. To deny them such supports, the Irish government has argued that, as a class of persons, asylum seekers do not meet the Habitual Residence Condition(HRC), the test of ‘centre of interest’ that qualifies EEA citizens for most social welfare payments in Ireland largely on the basis of length of residence as well as other factors. A very few asylum seekers were deemed by the Social Welfare Appeals Office to meet the HRC, so the Irish government amended its social protection legislation in December, 2009 to declare that no seeker of asylum or protection after the passage of that legislation could meet the HRC. The deliberate denial of the spatial reality of asylum seekers in Ireland has required Ireland to be one of two countries that have opted out of the Reception Directive (2003/9/EC) regarding conditions for asylum seekers, which includes the right to work if the individual has been in the system for over one year and minimum standards for accommodation. The only other country to opt out was Denmark, which brought in standards superior to those required by the directive. It is in this way that the norms of the EU—most crucially freedom of movement and the rights of the individual—put pressure on member states that find them inconvenient for their attempts to exclude and control whole groups of vulnerable people. While EU norms pose a challenge to Ireland’s system of direct provision, the persistence of the system poses a challenge to the EU: are the fundamental rights of the EU’s Charter of Fundamental Rights human rights or EU citizen rights only? With thanks to the work of Dr. Liam Thornton, UCD and the Free Legal Advice Centres (FLAC), Ireland.

Lost in translation in Catalonia: The politics of rights

Andrea Bianculli, March 3, 2014

In October 2012, the Spanish Education Minister José Ignacio Wert briefly justified the new controversial law aimed at reforming the educational system to ‘improve teaching quality’, by saying that the objective was to “Españolizar a los catalanes” (“Hispanize Catalans”). Despite mounting criticism and heated public debates, the “Wert Law” or LOMCE was finally passed by Congress in November 2013, counting only with the votes of the Popular Party’s own members. The law will take effect on 2014 – 2015. Still, there are many doubts as to whether and how it will be implemented. The flood of responses to the “Wert law” from political leaders, representatives of the educational community, including teachers, students and families and a wide array of other societal actors has not ceased in Catalonia since the approval of the law. Additionally, the issue has revived a debate that seemed to have been settled by law already in 1983. By then the Catalan Linguistic Normalization Law made Castilian and Catalan co-official languages and established a model of language immersion teaching – based on Catalan as vehicular language. Unanimously passed by the regional parliament in 1984, the Catalan law was then endorsed by the Spanish Supreme Court in 1988 and the Constitutional Court in 1994. Later regulations and norms further strengthened this linguistic model. While the system had worked for nearly 30 years, resistance to the new educational law is easily associated to Catalonia’s independence debate. However, and as other autonomous communities also resort to Court to refuse its application, it becomes clearer that the ongoing debate actually speaks to the politics of rights in a country where traditional notions of language and identity become blurred. Whereas in Spain there are languages that glue various populations, e.g. the use of Catalan in both Catalonia and Valencia, the exact limits between the users of one language and those of others tend to be imprecise: a person can clearly remain Catalan-speaking and have a strong Spanish identity, while other may have a strong Catalan (or Basque) identity, while not speaking fluent Catalan (or Basque). While in social terms, there is no need to trade one identity for the other, the increasing resistance to the LOMCE can be more readily explained by its attempt at promoting (unjustified) linguistic homogenization as a way of strengthening Spanish national identity against peripheral nationalisms.

Quo Vadis European Parliament? The Upcoming European Elections and Democratic Citizenship in the EU

Daniel Gaus, February 24, 2014

Voter turnout in European Parliament (EP) elections is in decline. But what does that tell us about the democratic state of the European Union (EU)? Is it a sign for a creeping disaffection with democracy? Or is it a sign of lacking importance of the EP, with European politics still being dominated by national governments? This is how the low voter turnout is often explained in political science. In contrast to national elections European elections are described as “second-order elections”. But why are European elections second-order elections only? For sure, the reason is hardly a lack of importance of EU politics for the democratic member-states. If any proof was needed, the recent Eurocrisis has shown the impact of EU decisions on member-state politics. EU decisions deeply affect the member-states’ capability to act and thus require strong democratic control. It is however doubtful that enough democratic control is provided in EU politics. Increasing demand of prompt EU decisions and the need to find intergovernmental compromises weaken the national parliaments’ ability to control their governments effectively. At the same time the competences of the EU have been strengthened constantly since the Treaty of Maastricht in 1992. Today the ordinary legislative procedure grants more equality between the EP and the Council of the EU in legislation on, for example, matters of economic governance, immigration, energy, transport, the environment and consumer protection, police and judicial cooperation. However, despite the EP’s strengthened role in EU politics the trend of a decreasing voter turnout continues. Some observers hope for a turnaround in the upcoming European elections which are due in May 2014. They expect a stronger politicization and thus a higher voter turnout for two reasons. For one thing, it may be the first time that the next candidate for the presidency of the European Commission arises from the winning coalition in the EP election. The Lisbon Treaty changed the rules for the nomination of the President of the Commission. The European Council now should take account of the results in the EP when nominating the person it intends to appoint as President of the Commission. Whether the European Council really cooperates with the EP in the appointment of the Commission presidency, or rather makes (informal) use of its prerogative as the highest authority in the EU and ignores the majority in the EP, is however uncertain. For another thing, the Eurocrisis has led to an upswing of Eurosceptic parties all over Europe. Growing attention to EU politics during the crisis seems to have strengthened first and foremost those parties that aim for renationalization.  Thus, even a higher voter turnout may not necessarily mean stronger democratic legitimacy of the EP. But chances are that everything stays as it were. Despite politicization, voter turnout could remain as low as before. The reason for this is that even if the EP’s competences have grown steadily, its character as a second-order parliament prevails. This is not only because some policy areas, like foreign and security policy or enlargement, are decided outside the ordinary legislative procedures by the governments in the Council of the European Union, granting the EP only a right to consultation. More importantly, the EP has no say at all in all constitutional matters (that is, the decision of who decides what how in the EU).  Here, the heads of state and government in the European Council own the exclusive right to decision without control through the EP. It is this role of the European Council as the highest law-making authority that fixes an intergovernmental bias in the will-formation of EU’s constitutional politics. It structures ingoing perspectives along national boundaries and so reproduces the collective imaginary of the EU as an international organization. It shapes the citizens’ perception that EU will-formation boils down to bargaining among national executives hidden from the broader public. This is the reason why governmental justification of EU decisions as compromises to the benefit of one’s own country are so difficult to contest. And this is also the reason why governments can claim so successfully that their discretion is more important than parliamentary control. One way to overcome the intergovernmental imaginary of the EU would be to give the EP a say in EU constitutional matters equal to the powers of the European Council, including a veto right for the EP. The European Parliament on par with the European Council would change the current intergovernmental structure of the highest law-making authority in the EU into a dual structure of democratic authority: namely, the equal institutional representation of the perspective of the national demoi and the perspective of EU-citizenry. Thereby the collective imaginary of the EU as an international organization would be replaced by an image of the EU as a transnational democratic community. Without a European Parliament on par with the European Council also in constitutional matters, in the eyes of its citizens the EU remains a type of international organization, the EP remains a second-order parliament, EP elections second-order elections and the political rights of EU citizens second-order political rights. Turning the EP into a European constitutional power does not mean to merge national democracies in an EU-democracy. That must not be. Whatever democratic solution for the EU, member-state democracies must prevail. However, it is also true that the future of the EU should not be decided behind the closed doors of the club of national heads of state and government as it is today. Upgrading the EP by giving it equal powers in treaty revisions and determining the course of EU politics may be required for the desired turning-point of transforming the EU into a democracy of democracies. The EP could then exert the democratic control needed in EU politics, EP elections would no longer be of secondary relevance – and EU citizenship would turn into real democratic citizenship.

Being British: Embarrassment and Surprise

Bridget Anderson. February 17, 2014

Two emotions from bEUcitizen so far: embarrassment and surprise. It is embarrassing being a UK national collaborating with partners on an EU project, particularly when the focus is migration. I can’t help but feel anxious that colleagues think I hate Bulgarians and want to impose English language tests on every non-Brit who crosses the border, or have a fantasy that if it weren’t for Europe we’d be drinking real ale, and playing cricket on the village green. And yes, I do only speak one language, English. I would feel this whatever the project I suspect. But the second emotion, surprise is related to the subject of our endeavour: barriers to EU citizenship. Here we have scholars reflecting on why EU citizenship seems to promise so much more than it delivers in practice, compounded by anxieties that national citizenship is being eroded by EU membership. But those of us who are interested in migration have a quite different starting point: that EU citizenship is giving more value, not less, to national citizenship, and national sovereignty is considerably strengthened by states having the power to decide who has access to EU citizenship. Third Country Nationals certainly value it, even if some EU nationals (and UK nationals in particular) do not. After all Malta is now effectively suggesting it is worth 1.15 million euros in its ‘Citizenship by Investment’ visa. One reason it is valued is its attendant immigration rights that go beyond mobility within the union. For example, as national governments make it harder for their citizens to be joined by Third country national partners and children, the ‘Surinder Singh’ route is becoming increasingly popular. Under this, nationals of one EU state set up temporarily in another member state, and as EU citizens they can be joined by their families without being subject to the national immigration controls of the state they are residing. They then return to their state of national citizenship together, again as EU free movers. When it comes to immigration restrictions, EU citizens can exercise rights that nationals cannot. Furthermore, it is not always necessary to move to enter the EU legal space to access these rights. The Zambrano family asserted that EU citizen children should effectively produce EU rights for their parents to live and work in the EU even though the child has only ever lived in their state of birth (in this case, Belgium). The national response was to restrict ius soli, in order not to ‘produce’ EU citizen children. How much does migration undermine EU and national citizenship, and how much does it make it, or at least reveal that both are ever evolving and under construction?

European citizenship & Gender equality: Different paths or coming to a crossroads?

Hanneke Van Eijken, February 12, 2014

The year 2013 was designated the European Year of Citizens, ‘to enhance awareness and knowledge of the rights and responsibilities attached to Union citizenship’. In this European Year of Citizens the European Commission published its EU Citizenship Report 2013, ‘EU citizens: your rights, your future’. This report builds upon the EU Citizenship Report published in 2010, in which the obstacles with which EU citizens are confronted were discussed in detail. In the 2013 report, actions to improve the exercise of EU citizenship rights have been announced by the Commission. No specific gender related issues are included in the report, but increasing gender equality could improve the exercise of the rights attached to European citizenship as the case of Saint Prix, pending at the Court of Justice of the EU, reveals.   This case concerns two questions of the UK Supreme Court on Directive 2004/38/EC. According to Article 7 (3) of the Directive, the right to residence in a host Member State should be granted to a Union citizen for a period of more than three months when he or she is qualified as a “worker” in the sense of EU law. A Union citizen who is no longer a worker or self-employed person will retain the status of worker or self-employed person, when he/she is inter alia, temporarily unable to work as the result of an illness or accident. Ms. Saint Prix is a French national, who has been residing and working in the UK since 2006 on the basis of Directive 2004/38. She became pregnant and her baby was born prematurely. As a consequence Ms. Saint Prixcould not work for three months, which resulted in the loss of her status as a worker. The question referred by the Supreme Court is whether Article 7 (3) of the Directive also concerns a woman who reasonably gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy (and the aftermath of childbirth)’? If Ms. Saint Prix loses indeed her status as a worker, because of her temporary unavailability on the labour market as a consequence of her pregnancy, she also loses her EU citizenship right to reside in another Member State.   This pending case demonstrates the potential connection between free movement and gender related issues in terms of removing obstacles for the exercise of EU citizenship rights and highlights the need to place such an issue on the European agenda. Moreover, the case shows where challenges lie ahead in terms of gender equality in the broader context of EU law. As the Commission stated in its most recent Strategy for Equality Between Women and Men with regard to gender mainstreaming, ‘the impact of EU legal measures, policies and spending programmes on both women and men needs to be taken into account in all areas’. Such an integral approach is certainly needed, including in areas outside the scope of the specific gender Directives.   Hence, pregnancy and the right to effective reconciliation of work and family life are important issues for European citizens when they exercise their right to free movement (Article 21 TFEU). As the Saint Prix case reveals, pregnancy, and pregnancy related illness, may create obstacles not only to exercise of the right to move and reside freely as a European citizen in another Member State, but also to the personal scope of protection. From that perspective, the need for a holistic approach to ensure gender equality is integrally implemented in all policy areas is telling.  

This blog is based on the editorial ‘European Citizenship, Gender Equality and Fundamental Rights: Different Paths or Coming to a Crossroads?’ by Hanneke van Eijken, LLM., published in the European Gender Equality Law Review 2013-2: http://ec.europa.eu/justice/gender-equality/files/law_reviews/egelr_2013_2_final_web_en.pdf

Practices of Citizenship at the University Campus

Manuela Naldini, February 6, 2014

In 2013 the University of Turin opened a new Campus. The "Luigi Einaudi" Campus includes a new School of Economics, Law and Social Sciences, and is attended by around 9000 students. In 2013, which was the European Year of the Citizen, the "Luigi Einaudi" Campus, within the new institutional framework of the Italian University Reform, launched a citizenship project, (Cittadinanze: un Progetto al Campus) online at http://campuscittadinanze.eu/. The project aims to promote not only scientific activities but also practices that directly concern citizens and citizenship. It sets out to bring together scholars from different fields of study and different disciplines (anthropology, law, history, sociology and political sciences), to enable them to discuss their own research on citizenship and make their knowledge available to potential beneficiaries. A high profile, active group of scholars is now discussing the best way to create a dataset of current research, and promote public initiatives in the city and the area surrounding the Campus. While conferences and public debates are not a new activity for the University, the project also actively seeks to promote citizen practices and citizenship to the benefit of citizens who may encounter social barriers when exercising their rights and fulfilling their obligations. This includes  the "law clinic", where trained students provide legal information to people in situations of social vulnerability, namely migrants, detainees and people applying for legal aid in family law cases. It also operates on a “second level”, offering free legal advice to social workers and public and private non-profit organizations. The project has only just begun, but has already been successful in bringing theory and practice together.

Right to housing – European Social Charter perspective

Mr Marcin Wujczyk, January 28, 2014

In the course of studies conducted within bEUzitizen we have focused on equal treatment by particular EU member states of all EU citizens as regards the right to housing. It is worth to mention that the ban on discrimination does not arise from EU provisions only, but it is also guaranteed by the regulations of the Council of Europe. Within the studies on the right to housing a special attention should be paid to the Revised European Social Charter, and in particular to its Article 19 § 4 letter c that orders not to discriminate migrating employees against a given country’s own citizens as regards the access to housing. The European Committee of Social Rights indicates that in order to obtain a judgment that stipulates that a national legal system corresponds with the standards provided by Article 19 §4, member states are obliged to substantiate that discrimination is not practiced by virtue of national provisions that regulate the right to housing. ECSR has issued judgments regarding the failure to respect the aforementioned obligation in case when it has been stated that the authorities of particular member states: would exclude the citizens of other member states from the category of individuals entitled to council flats (the case of Slovenia), would subordinate granting of such right to granting a similar right to its own citizens living in another member state (the case of Italy), would not grant financial support for construction to other citizens that its own ones (the case of Portugal), would subordinate granting the aforementioned benefits for the sake of satisfying the housing needs of migrating employees and their families on the amount of time during which they live on the territory of another member state (the case of Norway) It follows from the Committee’s opinion that the standard of council flats allotted to migrating employee-citizens of other member states cannot be worse than the standards of similar flats allotted to a country’s won citizens. Article 19 §4 letter c of the Revised European Social Charter also forbids a discriminatory treatment of citizens of other member states when they try to rent or buy a real property that is a private property for housing purposes. Even though the protection guaranteed by the provisions of the Revised European Social Charter indeed protects the right of the emigrants to housing to a great extent, there is no doubt that the standards of protection should be developed within EU law.  

Marcin Wujczyk is Assistant Professor at Jagiellonian University and member of European Committee of Social Rights of Council of Europe.
Promoting information, promoting citizenship

Monica Ferrin, January 2, 2014

The closing conference of the European Year of Citizens 2013 took place in Vilnius last 12-13 December, concluding a fruitful year of initiatives aimed at promoting citizenship in Europe. The core message conveyed by European Commissioner for Justice, Fundamental Rights and Citizenship, Viviane Reding, was that ‘every year should be the year of citizens’. However, as acknowledged by Viviane Reding, European institutions face a main challenge in order to make European citizenship truly effective: lack of information about the European Union and the European citizenship. Data from EB79 2013 give us a clear insight of the scale of the problem. Indeed, even if most citizens are now familiar with the European institutions (for example, 90% of the interviewed confirm they know about the European Parliament), Europeans admit to be much less informed about the functioning of the EU. In May 2013, 46% of the interviewed declared they do not understand how the EU works, and more than 50% felt that they do not know their rights as European citizens. Data are particularly troubling when thinking of the forthcoming European elections, since only 52% of the Europeans interviewed in 2013 appeared to know that the members of the European Parliament are directly elected by the citizens of each member state. In the light of these data, the message of Viviane Reding becomes still more pressing: ‘we all need to continue with our focus on citizens. In fact, the most important part of this task is still ahead of us: We need to make sure citizens know that next year's European Parliament elections will be a crucial moment for them to have a say on the future of our Union.’

AN AGENDA FOR EU CITIZENSHIP EDUCATION: ATTENTION, OPERATIONALIZATION AND PROFESSIONAL REPERTOIRE

Wieger bakker, December 20, 2013

What is, can and/or should be the role of citizenship education in Europe? This was the main question an amalgam of some 200 practitioners, scientists and experts from civil society organisations, discussed during the Networking European Citizenship Education (NECE) conference in The Hague November 2013.&lt;/p&gt;

The setting with pitches, round table discussions and a multitude of workshop sessions, the diversity of the participants as well as the content of the discussions, provided some interesting observations. Leading more or less to the conclusion that shared ideas on the importance of European citizenship education is not always reflected in the actual attention it gets in curricula and in professional repertoire and practices.

In a way, one could observe three paradoxes emerging during the discussion. The first paradox is that despite the respectable age of the institutionalized attention for the European dimension of citizenship [the German Federal Agency for Civic Education for instance was founded in 1952] there was a general sense that we’re just beginning and are lacking a well-developed operational professional repertoire for European citizenship education. A second one is that the articulated need for, and importance of the attention for European citizenship is inversely proportional to the little attention that is paid &nbsp;to it in most national citizenship education curricula. The third paradox became visible in the many expressions of high expectations on what European citizenship education can do for democracy and for a sense of belonging to the European political community, and at the same time the absence of research based evidence of what effects citizenship education brings about.&lt;/p&gt;

Next to a new narrative, there seems to be a need for more operational professional practices, for knowledge on what types of practices develop a civic culture in Europe and empower citizens to exercise also their European citizenship. In the bEUcitizen project this too is one of the relevant subjects in investigating barriers for European citizenship. In doing that the work within NECE serves as a valuable source for experience and expertise.

EU citizenship needs a new narrative

Ismaela Nieuwenhuijs, November 25, 2013

The Networking European Citizenship Education conference of 2013 was titled “The EU and the promise of democracy: What can Citizenship Education and Civil Society contribute?” The assessment of the current state of the European Union (EU) during the first evening of the conference was not very positive, considering  the EU remaining in a deep economic crisis with youth unemployment up to 40% in the southern European states, modern populism with strong anti-European feelings and a growing general discontent with the elites, amongst others. The EU project, according to Thomas Krueger, president of the German Federal Agency for Civic Education, can only become successful by being more open and transparent in order to (re)connect with European citizens. Dutch Minister of Foreign Affairs, Frans Timmermans, argues that there are two sides to European citizenship: on the one hand there are the European institutions, on the other hand there is the European heritage. The European institutions are standing far away from the average European citizen. But Timmermans believes that a shared history and a shared destiny create an understanding and will ultimately increase solidarity between EU citizens. Therefore, history education in European countries need to be improved in order for the EU project to successfully continue. The mantra of the evening was the need for a new narrative for the European Union, which so far appears to be the European currency: the euro. And, according to Professor Paul Scheffer (European Studies at Tilburg University), this is not nearly good enough.. The bEUcitizen project particularly values the historical perspective of European citizenship with a view to understand the barriers that European citizens face today better and to come up with viable solutions to remove these barriers. Such a perspective will also help to develop a new narrative, which is so much needed for the future success of the European Union and the establishment of a true European citizenship.

A day of bEUcitizen

Trudie Knijn, October 28, 2013

Today I have attended as a representative of the Executive Board of bEUcitizen the Horizon 2020 workshop on ' Building Inclusive Societies in Times of Crisis: Evidence and Future Research Needs' that took place in Berlin. 12 EU financed reserach projects did present their results or research intentions ( depending on the stage of the projects) and each delivered ideas for the serach agenda of the future. The opening lecture was given by Anton Hemerijck who concluded that it is time to recognize the failure of the neo-liberal reforms of the welfare state and to turn to focused social investments.

The welfare states did not suffer the past decades from public overspending but mainly from private overspending. Interstingly, three policy paradigms came together today, as accentuated by Bea Cantillon on basis of the IMPROVE project; the ' old' social protection model, the social investment approach and the ' social innovation' approach that has been presented by Adalbert Evers ( WILCO project).

Cantillon has serious doubts on the social investment approach because reforms that coincide with that approach seem to go at the costs of the most vulnerable part of the population; the poorest households do not benefit from childcare investments while the trade-off is that child allowances are reduced. The increasing numbers of poor children (and their families) are a worriesome development in Europe; is this because of the social investment approach or to the overall austerity? This findings and debates are of major importance for the social rights studied. The social innovation approach in contrast mainly relates to the political and civil rights studied in bEUcitizen; who has a say on the public services and how should these be delivered?

EU Social Rights: health insurance, (country) laws and hurdles?

Frans Pennings, October 8, 2013

The research programme bEUcitizen is not limited to pure research, but also focuses on real-life issues affecting citizens within the European Union. For instance the Work Package on Social Rights will deal with obstacles to the realization of EU citizenship such as the following: A German citizen, child of German parents resident in the UK, is trying to matriculate at Humboldt University in Berlin, Germany. The University requests a certificate from a German statutory health insurance fund confirming insurance coverage in order to enroll. Fellow students are insured as dependents through the health insurance of the parents, covering adult students up to a certain age limit. The international office at the university informs the student, that she needs to enroll in a German statutory health insurance scheme, as the parents are not insured through a statutory German health insurance fund. However, this may be expensive for the student, as she would have to pay contributions to one of the German health insurance funds. Based on EU Regulation 883/2004, which deals with the coordination of social security of persons moving within Europe, the student is not obliged to enroll in a German statutory health insurance in order to be able to study at Humboldt University, since the NHS in England should cover the child as a family member. The problem is, however, that knowledge of all these rules is limited, making compliance with the rules difficult at times. Although the NHS does not provide explicit coverage for family members, since all residents are covered as individuals, for the purpose of Germany, the adult student child has to be treated as a family member. The coordination regulation defines a person in such a situation as a family member. The university needs to be convinced that a certificate by the English NHS is sufficient. If this fails - due to a lack of knowledge - the German health insurance fund could confirm that the certificate has the same value as its own. In other words, the EU aims to make movement easier for its citizens, by regulating the access to social rights. Nevertheless, even if the laws are in place, hurdles remain and have to be taken. One of the aims of bEUcitizen is to provide information, which can have impact on real-life situations and make a real difference to EU citizens. Frans Pennings and Martin Seeleib-Kaiser

The Rights to Privacy and Protection

Sybe A. de Vries, February 10, 2013

"Massive spying on our citizens, companies and leaders is unacceptable. Citizens on both sides of the Atlantic need to be reassured that their data is protected and companies need to know existing agreements are respected and enforced.” (Viviane Reding, vice-president of the European Commission, Press Release of 27 November 2013) There is hardly any day that passes without news about the surveillance activities of the American Secret Service NSA, acting in cooperation with its European counterparts. We probably have only seen a tip of the ice mountain, which seems large enough already. Besides the question of how it has been possible that the security services have been able to screen and tap (private) telephone calls, search the Internet and collect personal data at such a massive extent, another more crucial question is: how can the rights of European citizens to privacy and protection of personal data be better protected in a globalized world with the Internet as an important infrastructure for its economy? The rights to privacy and protection of personal data are fundamental rights included in Articles 7 and 8 of the EU Charter. Since the Lisbon Treaty entered into force in December 2009 the EU Charter has, according to Article 6 (1) TEU, the same legal value as the Treaties and has binding force. Both the EU institutions and the Member States, whenever they act within the scope of EU law, are obliged to respect the fundamental rights laid down in the EU Charter. The entry into force of the Lisbon Treaty and EU Charter reflects the  ‘constitutional coming-of-age of fundamental rights protection’ at the level of the European Union, which is according to the Treaty founded on the values of respect for human dignity, freedom, democracy, the rule of law and respect for human rights. With respect to European citizens’ rights to privacy and data protection the Lisbon Treaty includes a provision allowing the EU to adopt specific measures in the field of data protection.  On the basis of this provision the European Commission drafted a proposal for a General Data Protection Regulation, strengthening European citizens’ rights in this field.  Citizens should, for example, explicitly give their consent for data to be processed and the proposal contains a right to be forgotten. Next to this Regulation a Directive has been proposed to protect data of citizens being processed for the purposes of prevention, detection, investigation or prosecution of criminal offences and judicial activities. Whether these European legal instruments will eventually be able to reassure European citizens that their data are sufficiently protected against uncontrolled intervention by the state and their security services, or against criminal activities causing security breaches, remains to be seen. But the proposed measures are certainly an important step towards strengthening individual online privacy rights of European citizens.

European citizenship anno 2013: quo vadis?

Sybe A. de Vries, February 5, 2013

In its EU Citizenship Report 2013 Vice-President of the European Commission Viviane Reding states that ‘European citizenship is the cornerstone of European integration’. But what does European citizenship entail and what does it actually mean to be a European citizen anno 2013? In the context of the European Union, the notion of European citizenship originally included ‘market citizenship’ in its purest form. In the European Economic Community the free movement of persons was confined to persons participating in the common market. But even before citizenship was formally introduced by the Treaty of Maastricht 20 years ago, the European Court of Justice, in a series of landmark cases offered a broad interpretation of the economic Treaty provisions, whereby individuals were no longer regarded as pure factors of production but as social and human beings. Ever since the inclusion of EU citizenship in the Treaty, the Court has been forced to define and demarcate further the scope of citizenship.  Faced with an extremely difficult to define concept, as had already been observed by Aristotle more than 2000 years ago, the Court nevertheless managed to extend the scope and strengthen the nature of European citizenship, which is clearly visible in the much-discussed Ruiz Zambrano case. True: Anno 2013 European citizens have rights, irrespective of their nationality, origin or destination, to further develop themselves economically, socially and politically within a European wide area. But what are these rights worth, considering that many Europeans, like workers, students or (vulnerable) citizens, are, according to the EU Citizenship Report 2013, still faced with numerous obstacles in seeking to exercise their rights? The bEUcitizen project seeks, from a multidisciplinary perspective, to develop the idea of European citizenship further with a view to help the European Union in overcoming existing shortcomings to the exercise of citizenship rights and in facing the challenges ahead. Download the EU Citizenship Report 2013 in the Publications section of this site".