Tuesday, 13 June 2017

The Gamble that Failed: The Brexit Election and what happens next



Professor Steve Peers

Last week’s early UK election ended with the surprising result of a ‘hung Parliament’, in which no one party had a majority of the seats in the House of Commons. What does this mean for the Brexit process going forward?

First of all, there’s a simple message for Theresa May’s Conservative party: they failed. Epically. The Prime Minister called this election three years early specifically to ask voters to increase her slender majority of seats in the Commons, in order to give her a mandate to carry out her Brexit plan. Voters refused – giving her fewer seats and a minority government instead. Of course, some voters must have voted on other issues, but the ‘Brexit negotiation mandate’ was the express reason for calling the election, and was repeatedly invoked by the Prime Minister throughout the election campaign. And while it’s true that the Conservatives are the largest party, that’s hardly comparable to the political legitimacy of a majority government – and again, that ignores the specific rationale for calling the election in the first place.

Having said that, the largest party is entitled to attempt to form a government, and the Conservatives are currently trying just that, in negotiations with a Northern Ireland party, the Democratic Unionists (DUP). That party has many of the same Brexit objectives as the Conservatives (see their manifesto here), including maintaining simplified border crossing with the Republic of Ireland (other UK parties, as well as the EU side in the Brexit talks, have this objective too). Together, the Conservatives and DUP will have a small majority of seats in the House of Commons.

What are the implications of this? Such a slim majority of Commons seats is vulnerable to defections, and in any event it’s not yet known whether the DUP will commit to support any proposed legislation. Furthermore, the government is now more vulnerable to rejection or major amendment of legislation by the House of Lords. While there is a constitutional convention, known as the ‘Salisbury Convention’, which commits the House of Lords not to block proposals for legislation tabled by a government which were mentioned in the winning party’s manifesto, it’s arguable whether this Convention applies where there is a minority government.

This applies even more so to the Brexit policy of this government, since the Prime Minister explicitly requested voters for a bigger Commons majority to combat the hypothetical prospect of the Lords voting against her Brexit agenda. In effect, she asked voters: “Give me a big majority so the Lords don’t meddle with my Brexit plans”. And the voters answered: “No”. In the circumstances, if the Lords block any government Brexit bills, they would not be frustrating the popular vote – but rather giving effect to it.

There is another option for a Commons majority to get its way, if the Lords blocks the adoption of legislation: the Parliament Acts, which allow the Commons to override the Lords.  However, there is a problem of timing here. If the Parliament Acts are invoked, the legislation in question comes into force after a one-year delay. But there are only 21 months left before Brexit Day (29 March 2019). Factor in the months necessary for Brexit-related Bills to pass through Parliament, and overriding the Lords is not a very plausible threat. Mrs Thatcher used to say that the problem with socialism is that you eventually run out of other peoples’ money. Maybe; but the problem with Mayism is that you eventually run out of your own time to negotiate Brexit.

Underpinning all this is the changed dynamics of UK politics as a result of the election. When the ‘Article 50 Act’ was passed earlier this year, there were enough votes in the House of Lords to support guaranteeing EU citizens’ rights in the UK, as well as parliamentary scrutiny of the Brexit deal. But eventually Labour Lords abstained on these amendments, and so the Bill was adopted without them. Labour’s abstention may have been because the party did not want to be accused of blocking the Article 50 process, and/or because the party was worried (in light of opinion polls) about facing a snap ‘Brexit election’ if it did.

Now the position is transformed: a) the Article 50 Act has been passed, so Labour cannot be accused of blocking the process; and b) the ‘Brexit election’ has already been held, resulting in an unexpected increase in Labour votes, seats, momentum and opinion poll ratings. Although Labour still lost the election, it is now far more likely to welcome a further election than to fear one in these circumstances.

Substantive issues

Let’s now examine how this changed political dynamic could affect the details of the Brexit process. The government plans to propose a Great Repeal Bill that would convert the bulk of EU law into UK law as from Brexit Day, as well as other Brexit-related legislation (on immigration and customs, for example). Under the new political environment, the opposition parties, possibly with Conservative defectors, have a bigger opportunity to pass amendments or to block such bills.

For instance, amendments could include: guarantees for the rights of EU citizens in the UK; limiting the government’s power to reduce social and environmental standards without a further Act of Parliament; effective parliamentary scrutiny of the negotiations; the role of the devolved legislatures; and parliamentary approval of the final deal. It seems unlikely that there are enough votes to demand a further referendum on the terms of the final Brexit deal, but there might be enough to require the government to seek some form of interim participation in the EU single market, pending negotiation of a subsequent post-Brexit trade deal. (While the Labour manifesto, as discussed here, ruled out continuing free movement of persons, arguably a brief continuation, with use of a safeguard clause like that in the European Economic Area, would not contradict this).

This brings us to a key Conservative party position that the new composition of the Commons could in effect rule out: the ‘no deal is better than a bad deal’ argument. One of the least edifying moments of the campaign was the Prime Minister’s endless repetition of this mantra in one of the debates, accompanied each time by bellows of support from her ardent admirers. This was always an implausible threat due to the damage to the UK economy it would likely cause if it were carried out. But now it is politically implausible to, for the government could well struggle to find a parliamentary majority in both Houses to carry such a threat out. (Labour, and other opposition parties, explicitly oppose the use of this threat).  

In particular, Parliament might be unwilling to repeal the European Communities Act to give effect ‘no deal’, or at least unwilling to repeal it in advance if the government wants to repeal it in advance of Brexit Day (ie, unilaterally breaching its EU law obligations set out in Article 50). On this point, it’s essential to recall the Supreme Court ruling in Miller, to the effect that EU law is part of the domestic legal system largely because of the European Communities Act, rather than executive powers. The ‘no-deal’ threat was always unconvincing in light of political economy; it is now even more unconvincing as a matter of parliamentary arithmetic.

One final observation on the ‘no-deal’ scenario: it is particularly incompatible with the position of the Conservatives’ planned partner, the DUP, because (as noted above) the latter is keen on maintaining the absence of controls on the border with the Irish Republic. Since customs issues are an exclusive EU competence, this cannot work out without some form of treaty with the EU. And the EU’s negotiating guidelines rule out a separate deal on this issue: other issues (including difficult questions about financial payments) must be settled as part of an overall package.

It’s technically possible that the EU might change this position and negotiate a separate deal on this issue, even if there’s no deal overall. But how likely is it? Some Leavers argue that the EU’s negotiation position will swiftly fall apart, and the UK can get whatever it wants from the talks. Yet they said things like this throughout the referendum campaign, arguing that immediately after the referendum vote the EU would beg the UK to do a trade deal on the UK’s terms. To borrow from some Brexiteers’ favourite genre (WWII films), German car makers would call Angela Merkel to tell her “For you, ze var is over”; and Merkel would in turn call other EU leaders to say “Ve haf vays of making you talk”.

None of this happened, of course. Nor did the parallel fantasy that Brexit would soon be followed by Nexit, Frexit and the rest as other EU countries held key elections. Instead, domino after domino stood firm, and populist party after populist party ditched unpopular anti-EU policies after a series of electoral defeats. Some Brexiteers said there’d be an orgy of countries leaving the EU; but the UK is the only one who showed up to it. When it comes to analysis of EU politics, maybe it’s time to swipe left on those Brexiteers.

Conclusions

The British public was asked to give its verdict on Theresa May’s Brexit strategy. Since the referendum, we’ve heard her sneering at Remain voters and alleging that the EU wanted to undermine the election, while her angry tabloid allies ranted about “enemies of the people”, “crushing the saboteurs” and “Blue murder”. After a year of this rhetoric, British voters have politely asked the loud woman to turn down the volume – refusing her explicit request to back her Brexit strategy and implicitly asking for a rethink. Sadly, having campaigned in Hard Rock, it seems that Mrs. May is incapable of governing in Easy Listening. But as always, it ain’t over until the Mother of Parliaments sings.

Barnard & Peers: chapter 27

Photo credit: Daily25

Wednesday, 7 June 2017

The UK General Election and Brexit: Comparing Party Manifestos




Professor Steve Peers

Tomorrow sees another general election in the UK, just two years after the last one. Since this is (according to the Prime Minister) an election on Brexit, it seems appropriate to review the parties’ views on this issue, including future UK/EU relations. I will examine the parties’ views in turn – focussing on larger UK-wide parties plus (due to its political importance) the Scottish National Party. The final section is an overview and comparison.

Conservatives

The Tory manifesto position on Brexit is largely a summary of the position set out in the Brexit White Paper (discussed here), and the planned Great Repeal Bill (discussed here), which would keep EU law as part of ‘UK law’ for the time being. Essentially, the Tories believe that the future UK/EU relationship should be based on a free trade deal without ‘vast’ payments into the EU budget or free movement of persons. Participation in the customs union and internal market would end, and there are some details about the transition to full separate UK participation in the World Trade Organisation. There’s an objective of continuing security cooperation with the EU, but the details are not spelled out.

Some fair settlement of UK accounts would be made upon departure from the EU, but the Tory policy is ‘no deal is better than a bad deal’ – without spelling that position out further. Fortunately, the UKIP manifesto (discussed below) addresses this point. Unlike UKIP, the Tories do not attempt to ‘sell’ the no-deal scenario – which is just as well considering the concerns about its potential economic damage. Rather there is much discussion of what the positive outcomes of a deal would be.

Future immigration policy would retain an objective of net immigration below 100,000 – which would entail reducing non-EU migration (an issue largely outside the scope of EU law for the UK) as well. This would include further restricting the number of foreign students and family members, despite promises from the Leave side made during the referendum campaign to make it easier to admit UK citizens’ non-EU family members.  

Labour

Labour accepts the result of the referendum but sets out in more detail than the Conservatives what the future UK/EU relationship would look like.  It supports continued relations with Euratom and the single energy market, plus wants to maintain the ‘benefits’ of the single market and customs union without explaining how. Other remarks from the party suggest that it opposes continued participation as such in the single market and customs union, and opposes free movement of persons continuing.

Labour reject the ‘no-deal’ option, support a transitional deal, and list a number of areas where they still wish to cooperate with the EU: research programmes, Erasmus, Europol, Eurojust, the European Arrest Warrant (EAW), climate and anti-terrorism cooperation.  They have a different policy from the Tories on future family migration, as they would waive the strict income requirements for family members rather than tighten them. (There would still be a requirement not to use public funds). They would ‘guarantee existing rights’ of EU citizens in the UK. They set out in detail their future trade policy, insisting on links between trade and other concerns like the environment and human and labour rights.

Liberal Democrats

The LibDems aim for a referendum on the final Brexit deal, and support continued membership of the EU single market (including free movement of people) and customs union. They make specific reference to staying in Erasmus, preserving social and environmental rights, and participating in Europol, the EAW, EU databases, EU research funds, the European health card, abolition of roaming fees, and pat passports. Like Labour, they suggest links in between human rights and the environment in future trade deals. LibDems also give some detail on the position of EU citizens in the UK:

Greens

Similar to the LibDems, Greens propose a referendum on the final Brexit deal, and seek to continue with free movement and the single market. They also wish to guarantee EU citizens’ rights, retain social and environmental safeguards, and link trade deals to other standards.

Scottish National Party

The SNP manifesto views on Brexit reiterate its two key positions: Scotland, or the UK as a whole, to stay in the single market (previously discussed here), and a Scottish independence referendum when the terms of Brexit are known (previously discussed here). They also repeat their support for guaranteeing EU citizens’ rights.

UKIP

Finally, that brings us to the UKIP manifesto. This manifesto gives us an indication of how the ‘no-deal’ scenario hinted at in the Conservative manifesto might play out. UKIP opposes the use of the Article 50 procedure to negotiate with the EU, focussing instead on the purely domestic law change of repealing the European Communities Act. They still aspire to a free trade deal with the EU, however, although they are indifferent to whether they get one – since they also promise to spend the £11 billion “windfall” from tariffs on EU goods. There’s no acknowledgement of the effects on the UK economy of this scenario: indeed, they argue that talk of a “cliff edge” from leaving the EU without a trade deal is “hyperbole”, since trade will still continue. This ignores the obvious prospect that the level of trade will decrease if tariffs and non-tariff barriers are imposed. While they reject the single market and customs union, they want EU/UK trade to continue “on the same basis as present”.

In any event, UKIP not only refuse to make any payment upon departure, they expect the UK to receive a sum from the EU as it leaves. Moreover, they pledge to oppose the existence of customs unions like the EU in the World Trade Organisations – even though the WTO expressly provides for the existence of customs unions, and (as UKIP even acknowledge) the EU is a WTO member in its own right.

Overall then, UKIP expects to receive all the current trade benefits of EU membership, with none of the perceived drawbacks, plus a payment on the way out. All of this while refusing to use the official departure route and campaigning to end the EU’s existence as a customs union and WTO member. If you seek a visual metaphor for how UKIP sees the world, imagine their leader Paul Nuttall – a star football player in his own mind - repeatedly scoring penalties over the heads of 27 massed goalkeepers.

UKIP’s rage against the dying of their light deserves one final paragraph. Their immigration policy includes not just an unreal zero migration target, but also a demand that new immigrants observe UK “values” to be admitted. This from a party who have continually disregarded the basic British values of tolerance, equality and fair play: members have referred to gays causing floods, and repeatedly insulted minorities. Indeed, after the last European Parliament election, to receive EU money UKIP did a deal with a party whose leader denies the Holocaust, and claims that women are inferior and obtain their political beliefs via biological transmission from the men they have sexual intercourse with. Clearly, politics’ loss is gynaecology’s gain.

Overview

There are two broad categories of opinion on the EU in this election, but also important differences within each group. The Liberal Democrats, Greens and SNP want to continue participation in the single market as well as a number of other EU policies. Moreover, all three parties want to offer the option of continued EU membership – the LibDems and Greens by means of a UK-wide referendum on the final deal, and the SNP by means of a referendum on Scottish independence.

The Conservatives, Labour and UKIP all favour departure from the UK without the single market, the customs union and free movement of persons, and aim instead for a free trade deal with the EU. However, these similarities soon end.  Like the first group of parties, Labour would guarantee EU citizens’ rights (in fact, it supports guaranteeing their existing rights, an important nuance), and would seek participation in a number of specific EU measures. The Tories are considerably cooler and less detailed on these issues, and are willing to contemplate a ‘no-deal’ scenario, although they cannot bring themselves to ‘sell’ it. Labour would welcome foreign families and students; the Tories see them as numbers to be reduced.

UKIP offers voters not just one fantasy, but a choice of two fantasies: either a problem-free ‘no-deal’ scenario, or a deal with all of the benefits and none of the supposed drawbacks of EU membership, with a gold watch for UK service to the EU thrown in for good measure. Of course, some would argue that UKIP’s fantasies are simply more explicit than Labour’s or the Conservatives’ – since the EU has made clear in its negotiating position that it is not possible to retain all benefits of the single market for a former Member State which leaves it.

Voters may not wish to make Brexit the main reason for their vote, or may in any event choose to cast a tactical vote against a party they dislike, rather than vote for a party which they most agree with but which has no chance of winning their seat. But it can hardly be said that all parties take the same view on Brexit issues, and the summary above makes clear that for those whose concern is Brexit first and foremost, there is a lot at stake in this election.



Barnard & Peers: chapter 27
Photo credit: BBC

Friday, 19 May 2017

Uber: a taxi service or an app? Analysis of an ECJ Advocate-General’s view



Lorna Woods, Professor of Internet Law, University of Essex

Case C-434/15 Asociación Profesional Elite Taxi v. Uber Systems Spain SL, Opinion of the Advocate General, 11 May 2017

This case is the first before the Court of Justice specifically on the sharing economy and the extent to which coordination via platform should be treated as removing unnecessary red-tape, or as seeking to avoid regulation in the public interest (in the form of concerns about passenger safety) as well as permitting unfair competition.  While the Commission seems in favour of the (unequal) sharing economy, Advocate General Szpunar sees the position a little differently.

FACTS

Spanish law envisaged that taxi firms, and transport intermediaries, should hold a licence.  Asociación Profesional Elite Taxi (APET) sought to challenge the use Uberpop, an app which allows non-professional private drivers to transport passengers using the drivers’ own cars, where neither Uber nor the drivers have the requisite licences.   Passenger users download the app from Uber and provide their bank details to Uber.  On receiving a request for a car, the app notifies drivers and calculates the fare (this latter based on distance but also demand for taxi services at that time).  The payment is made to Uber, which deducts a percentage and then pays the remainder to the driver.  To use the app as a driver, an individual must comply with Uber’s terms and conditions. APET sought a cease and desist order and a prohibition of future similar behaviour on the basis of unfair competition.  Uber resisted APET’s claims on the basis that it was not providing transport/taxi services but was rather a digital intermediary. 

QUESTION REFERRED

The national court referred the questions of how to classify Uber’s services to the Court of Justice. The answer would affect with EU derived legal regime would be applied to Uber, with the corollary that the State’s freedom to impose licensing requirements would correspondingly vary depending on which regime was held to be applicable.  In essence, the question was whether Uber fell within the provisions of the e-Commerce Directive (Directive 2000/31) as an information society service provider, or whether the Services Directive (Directive 2006/123) or the TFEU itself applied in this context.  Here, there is a distinction between a service general and a service in the field of transportation.

OPINION

The first phase of the opinion comprises some general remarks about the significance of the ruling and the impact of different types of competence on the outcome.  The Advocate General also assumed that the respondent in the case should be the Dutch company (Uber BV), which operates the app in the EU, rather than the Spanish company, Uber Spain, which is responsible for advertising.

The Advocate-General then moved on to consider the scope of the e-Commerce Directive, specifically the meaning of ‘information society services’ as defined in Article 2(a) of that Directive by reference to Article 1(2) of Directive 98/34 (the Directive on notifying new technical barriers to trade). Under Article 1(2), an information society must be a service provided for remuneration, at a distance, by electronic means and at the individual request of a recipient. In the view of the Advocate-General, the questions of whether there is a service provided for remuneration and at individual request appeared unproblematic [para 27], but questions arose as to the test of whether the service is provided at a distance by electronic means.  In the eyes of the Advocate General the problem related to the fact that what was in issue was a ‘composite service’ [para 28].

The Advocate-General emphasised that the definition concerned services “’entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means’” [para 29, quoting 2nd indent of 2nd subparagraph of Article 1(2), Directive 98/34, emphasis in Opinion].  So, services not delivered by electronic means did not fall within the scope of the e-Commerce Directive; services which were incidental to such services would likewise not be liberalised by the e-Commerce Directive. Assuming that they did would undermine the perceived effectiveness of EU law [para 31]. Thus:

… an interpretation of the notion of information society services which brings online activities with no self-standing economic value within its scope would be ineffective in terms of the attainment of the objective pursued by Directive 2000/31. [para 32]

The Advocate General suggested that a composite service would be treated as an information society service in two circumstances:

-          where the two elements could be seen as economically independent of one another they would be treated separately for regulatory purposes – the electronic element likely falling with the eCommerce Directive; and
-          where the service  provided was substantially or predominantly provided by electronic means.

A common example of the first case would be a three party situation where an intermediary service provider facilitates a transaction between a user and an independent service provider/seller.  While the intermediary provides added value, the trader here pursues an independent business.  In a two party situation – where the intermediary provider is also the provider of a service not provided by electronic means, the two elements cannot be seen as separable; rather, they ‘form an inseparable whole’ [para 35]. 

In that instance, it will be necessary to see if the composite service falls within the second category; that is, whether the bundle falls within the eCommerce Directive or outside it. For determining the answer to this second question, the key element is where the economic value lies. So where the main component is performed online that service should be classified as an information society service (assuming the other elements of the test are met); conversely, where it is not then the service does not fall within the eCommerce Directive. The Advocate General, citing Ker-Optika (Case C-108/09) suggests that this test would be satisfied in the case of online sales (via the seller’s own website).  Delivery of goods is ‘simply the performance of a contractual obligation’ [para 36]. 

Applying these tests here, the Advocate General noted that Uber provided more than a matching service of passengers to taxi drivers. It sets down the essential characteristics of the service to be provided (eg quality and age of vehicle; drivers to have licences and no criminal record), it informs drivers where and when there are likely to be a high volume of trips and/or preferential fares, and it sets the prices.  Uber maintains indirect control over drivers through its ratings function.  Thus, in the view of the Advocate General,

‘… Uber exerts control over all the relevant aspects of an urban transport service ….  (…) Uber therefore controls the economically significant aspects of the transport service offered through its platform’ [para 51].

 While the Advocate General sought to distinguish this case from the cases concerning whether drivers are employees of Uber, on the basis of this indirect control the Advocate General concluded that:

 ‘Uber’s activity comprises a single supply of transport in a vehicle located and booked by means of the smartphone application and this service is provided, from an economic standpoint, [citations omitted] by Uber or on its behalf’ [para 53]. 

The Advocate General sought to distinguish the activity of Uber from intermediary services on the basis that Uber drivers do not carry out an independent activity. Instead, their activity exists solely because of the existence of the platform.  By contrast, flight or hotel booking systems are separate from the independent services operated by the hotels and airlines and for whom the websites are just one mechanism of advertising their services. Furthermore, it is the hotels and airlines which control the prices and the conditions on which their services are offered. Finally, a choice is offered to the user between hotels/airlines. 

In opposition to the Commission’s views on the sharing economy, the Advocate General did not think that the fact that Uber did not own the cars was determinative. Uber is more than a ‘mere taxi booking application’ [para 64].  Because of the extent of the innovation on the transport sector caused by the way the apps links drivers and passenger and the conditions on which it does this, ‘it is undoubtedly the supply of transport which is the main supply and which gives the services the economic meaning’ [para 64].  The supply of connection services is ancillary to this.

Having determined that Uber’s services do not fall within the eCommerce Directive, the Advocate General considered the Services Directive: Article 2(2)(d) specifies that the Services Directive does not apply to transport services.  The Advocate General confirmed that Uber’s taxi services were transport services in the context of Article 2(2)(d) Services Directive as recital 21 refers to ‘urban transport [and] taxis’ [cited para 68].  The service likewise falls within the exception to the Treaty rules on free movement of services (Article 58(1) TFEU) and therefore subject to the specific transport sector rules in Article 90 TFEU et seq.

The Advocate-General concluded by considering the position should Uber’s app be deemed to fall within the eCommerce Directive.  He noted that Member States would then be limited in terms of the conditions that they could apply to such a service; drivers however would still be subject to any relevant national regulation. The Advocate General argued that Uber nonetheless could be penalised for unfair competition as ‘it is responsible not only for the supply whereby passengers and drivers are connected with one another, but also for the activity of those drivers’ [para 86], whether or not the booking app were seen to be separate from the transportation service or not.  The Advocate General therefore proposed that the eCommerce Directive

‘does not preclude requirements relating to the activity of transport in the strict sense being established in national law or the imposition of penalties on Uber for failing to comply with those requirements, including by means of an injunction ordering it to discontinue the service’ [para 88].

Comment

This opinion will be grabbing the headline news because of the headline fact that – shock, horror- Uber is a taxi company.  The reasoning used is worth a little more attention, because our understanding of that reasoning, if the Court of Justice follows the same lines, will affect any wider ramifications for the ‘sharing’ economy more generally.  So while the Advocate-General starts his opinion by suggesting that the subject matter of the case is ‘narrow’ (para 2), the repercussions are potentially a little broader.  A recognition of this fact can be inferred by the approach of the Advocate General to the question of scope of the eCommerce Directive and the insistence that the eCommerce Directive regulates services that are entirely delivered by electronic means – the emphasis is that of the Advocate General (para 29), with the result that it cannot be said

That any trade-related online activity, be it merely incidental, secondary or preparatory in nature, which is not economically independent is, per se, an information society service (para 37).

The opinion re-iterates this point when considering the app as an information society service (see below). The significance of this is that the eCommerce Directive cannot be used to avoid regulation of the main service, at least to the extent that such regulation is not a barrier to trade unacceptable to EU law more generally and as exemplified by the Services Directive, just because some aspect of the business is on-line.  This leads to a second general point: the Opinion is noteworthy for the way it manoeuvred the circumstances of the case around to the twin obstacles to national regulation of the eCommerce Directive and the Services Directive, especially given that the Commission, in its Communication on the Collaborative Economy (COM(2016)356) seem to view the Services Directive in particular providing a basis for such services. 

The tests identified by the Advocate-General will not seem unusual – talking about whether the different elements of a composite service are severable or preponderantly one thing or another can be seen elsewhere, for example in the case of goods and services (an example of which is given by Advocate General Szpunar in his reference to Ker-Optika, para 36), or even questions of competence. 

A couple of points can be made here.  The first is that in some of the factors to be taken into account in determining independence, the Advocate General comes close to eliding the question of what is the nature of the service with the question of who is providing it. Many of the factors the Advocate General considered reflect the Commission’s Communication from last year. Of potentially more consequence is the impact considering as a factor the question of whether the service would exist without the app.  This can be seen by contrasting the position of Airbnb with Uber.  If we look at control, Uber is caught because of its control over key aspects such as access to passengers, and price (detailed in paras 43-51); on these considerations Airbnb which does not set price might not be caught. However, if the test is that ‘the activity exists solely because of the platform’ (para 56), for Airbnb as for Uber, the answer might well be ‘yes’.  Of course, Uber and Airbnb are different in that transport does not fall within the Services Directive but rather is dealt with by specific provisions within the TFEU.  Nonetheless, the recitals to the Services Directive specify that:

it does not apply to requirements, such as road traffic rules, rules concerning the development or use of land, town and country planning, building standards (Rec 9),

some of which may affect the running of hotels or B&Bs. Further, the directive does not apply to taxation (Article 2(3)), so for example, taxes on short term lets may be unaffected by the Services Directive (though dealt with under the TFEU).

A further point that is worthy of note is the consequence of seeing Uber and the drivers as providing separate services.  The requirement to have a licence to provide a connection service in the context of transportation would fall within the scope of the eCommerce Directive and would be caught be the prohibition on authorisations set out in Article 2(h)(i); the Advocate General was of the opinion that is was unlikely that any restriction on the electronic aspect of the service could be justified by considerations of public interest.  The prohibition does not, however, extend to the regulation of transport services - they are not provided by electronic means.  So the regulation of taxi services remains possible and, as noted, Uber remains responsible for the drivers’ activities (para 86).  Arguing Uber’s activity as whole should benefit from the liberalising principles in the eCommerce Directive would run the risk of undercutting any form of regulation ‘because all traders are currently in a position to offer services by electronic means….’ (para 87).  Could a similar argument be put forward in other sectors of the sharing economy?  In principle, yes, but presumably only where the platform has exerted Uber-like control over the actual provision of the services.

Even when the Grand Chamber Court of Justice has handed down its ruling, this will not be the end of the Uber saga.  Currently pending before the Court is a reference from France concerning the imposition of penalties on Uber for running an unlicensed taxi service: Case C-320/16 Criminal Proceedings against Uber France, which raises the question of whether France should have notified its rules as a technical regulation under Directive 98/34.

Barnard & Peers: chapter 14

Photo credit: boing boing

Thursday, 18 May 2017

New Developments in the context of the European Citizens’ Initiative: General Court rules on ‘Stop TTIP’



Anastasia KaratziaAssistant Professor in EU Law, Erasmus University Rotterdam and currently Visiting Research Fellow at the School of Law and Social Justice, University of Liverpool

Introduction

A few months ago, we saw the first annulment by the EU’s General Court of a Commission Decision refusing registration of a proposed European Citizens’ Initiative (ECI), in the case of Minority SafePack. Last week, there was an even bigger development in the case law of the General Court regarding the interpretation of the ECI’s legal admissibility test: in the Stop TTIP case[1] the Court annulled another Commission’s Decision, this time not on a procedural ground such as the one in Minority SafePack, but on the substantive ground that the Commission breached Article 11(4) TEU (which sets out the power to adopt the ECI law), and Articles 2(1) and 4(2)(b) of the ECI Regulation, which sets out one of the criteria for the legal admissibility test.

In Stop TTIP, the General Court clarified a matter of contention between ECI organisers / stakeholders and the Commission viz. the scope of an ECI and, more specifically, the way in which the Commission had limited the acceptable subject-matters for the purposes of registering an ECI. These limitations were stipulated in the Commission’s letter of response regarding the refusal of registration for the proposed ‘Stop TTIP’ Initiative, which was submitted for registration in July 2014. The Initiative proposed to cease the negotiations for the Transatlantic Trade and Investment Partnership agreement (TTIP) between the EU and US, and to prevent the conclusion of the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada.

In more detail, ‘Stop TTIP’ had invited the Commission to ask the Council to repeal its decision to authorise the opening of the TTIP negotiations under Article 218(2) TFEU (which is the legal rule on the process of the EU negotiating treaties). It also asked the Commission to submit a proposal for a Council decision not to conclude CETA. In September 2014, the Commission replied to the organisers that both their proposals had been rejected on the basis of Article 4(2)(b) in conjunction with Article 2(1) of the ECI Regulation, because they fell outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties.

The Commission’s reply revealed two limitations on the scope of the ECI.[2] First, the Commission stipulated that an ECI cannot invite the Commission to adopt preparatory acts. The Commission argued in its reply that its proposals to the Council under Article 218 TFEU to authorise the opening of negotiations for international agreements were not proposals for legal acts. The Council Decisions authorising the opening of negotiations for an international agreement are preparatory acts that produce legal effects only between the EU and its Member States and between the EU institutions. Therefore, the Commission’s relevant proposals to the Council lacked legal effect against third parties. Accordingly, the position of the Commission was that ‘Stop TTIP’ was not proposing any legal acts for the purpose of implementing the Treaties and could not be registered. Second, the Commission declared that an ECI cannot invite the Commission to propose a decision not to adopt a legal act such as a proposal not to conclude CETA, or to refrain from proposing a legal act. Such a proposal ‘would not deploy any autonomous legal effect beyond the fact of the legal act at issue not being adopted.’ The negative nature of the ‘Stop TTIP’ proposals, together with the fact that it arguably did not propose ‘legal acts’ as required by Article 11(4) and Article 2(1) ECI Regulation, led to the refusal by the Commission to register it. Notably, the limitations imposed by the Commission are not clearly indicated in the ECI Regulation. Instead, they resulted from the Commission’s own interpretation of the ECI’s legal framework.

After the Commission’s rejection, the ‘Stop TTIP’ organisers followed a twofold course of action: they brought a case before the EU General Court, which is the first instance part of the Court of Justice of the European Union (CJEU), contesting the Commission’s decision to refuse registration of their Initiative, and they started what they named ‘a self-organised ECI’, which was a campaign to collect signatures outside the contours of the ECI’s legal framework. The campaign went on to collect more than 3 million signatures, which the organisers handed over to the Commission in October 2015.

It becomes apparent from the above overview that the significance of the General Court’s judgment in the Stop TTIP case does not derive only from the question of whether the specific Initiative was wrongly refused registration, but also from the question of whether the ECI’s scope to propose EU action was rightly limited by the Commission beyond what is explicitly written in the ECI Regulation. In this sense, the General Court’s judgment is a milestone both for the ECI organisers themselves and for the functioning of the ECI as a mechanism for citizens’ participation. This short commentary will touch upon the key aspects of the judgment.

The arguments of the parties

The applicants in the case made two main arguments. They claimed that the Commission (i) breached Article 11(4) TEU and Article 4(2)(b) of the ECI Regulation, and (ii) breached the principle of equal treatment (Article 20 of the EU Charter of Fundamental Rights) because it had registered in the past the ‘Swissout’ Initiative which had very similar objectives with ‘Stop TTIP’. The judgment focused on the first ground of review and did not deal at all with the second.

In support of their claim, the applicants brought forward three main arguments. Firstly, they argued that the Council’s Decisions authorising the conclusion of an international agreement under Article Article 218(5) TFEU is not a preparatory act. With regard to the Initiative proposals concerning the CETA negotiations, which were already taking place at the time of the request for registration, a Decision by the Council to the Commission not to conclude CETA would not be a preparatory act but an act with legally binding effects. Regarding the Initiative proposals concerning a proposal by the Commission to the Council to repeal the Decision authorising the negotiations for TTIP, such a Decision would result to the termination of the negotiations, and would have been final and legally binding. In any case, the scope of an ECI should not be limited to proposing legal acts with definitive, legally binding effects vis-à-vis third parties. Neither the background to the ECI Regulation, nor the ECI’s overall regulatory framework call for such a restrictive reading of the term ‘legal acts’ (para 12).

Secondly, the applicants argued against the Commission’s position that an ECI cannot concern acts that deploy legal effects only between the institutions concerned. For the purposes of the ECI, the term ‘legal act’ should be defined broadly in light of Articles 288 – 292 TFEU, and should include Commission’s Decisions that are outside the ordinary legislative process (para 13).

Thirdly, the applicants referred to the potentially ‘destructive effect’ of the proposed Initiative on the negotiations for TTIP and CETA. This alleged ‘destructive effect’ cannot be put forward as a ground for refusal under the rationale that the Initiative’s proposals did not have the purpose of implementing the Treaties. In the view of the applicants, ‘the right of citizens to participate in the democratic life of the Union includes the possibility of citizens acting with the purpose of modifying, reforming, ratifying, or asking for a partial or total annulment of EU law’ (para 14).

The Commission’s main counter-arguments supported the position expressed in its 2014 letter of response to the organisers. The Commission reiterated its position that the Council Decision to approve the opening of negotiations for an international agreement is only preparatory because it only produces legal effects between the two EU institutions. Based on a ‘systematic and teleological interpretation’ of Articles 2(1) and 4(2)(b) of the ECI Regulation, it can be concluded that an act of preparatory character falls outside the definition of a ‘legal act’ for the purposes of registering an ECI (para 19). This argument was further supported by the assertion that the notion of democratic participation in the EU refers to the participation of citizens only in matters which (potentially) fall under their legal sphere. Instead, the Council and the Commission enjoy sufficient democratic legitimacy to be the ones to adopt acts that affect the relationship between the EU institutions (para 20).

In addition, the Commission repeated its argument that an ECI cannot ask it not to propose a particular legal act or to propose a decision for the non-adoption of a legal act. Interestingly, it referred to Article 10(1)(c) of the ECI Regulation which deals with the final stage of the ECI process, whereby the Commission is obliged to issue a Communication setting out ‘the action it intends to take, if any’. From this, the Commission concluded that only ECIs that aim to the adoption of a legal act or to the repeal of an existing legal act can be registered. Otherwise, a declaration by the Commission that, as a response to an ECI, it does not aim to propose the adoption of a legal act would have excessively limited the Commission’s monopoly of legislative initiative. According to this argument, an ECI asking for the Council to repeal a Decision opening the negotiations or asking it not to conclude an agreement, would have been an ‘unacceptable interference’ in an on-going legislative procedure (para 21).

The judgment of the General Court

The General Court began with a reference to the ECI’s legal framework. It mentioned Article 11(4) TEU, and the ECI Regulation, specifically Article 2(1) (definition of the ECI), Article 4(2)(b) (the legal admissibility test), and Article 10(1)(c) (the obligation of the Commission to respond to a successfully submitted ECI) (paras 23-27). It then explained that the ECI organisers had not asked the Commission not to submit a proposal to the Council for the signing and conclusion of TTIP and CETA. Instead, the organisers asked the Commission to submit to the Council two proposals: (a) a proposal to recall the authorisation for the opening of negotiations for TTIP; and (b) a proposal not to authorise the signing of TTIP and CETA and thus not to conclude these agreements (para 28). As such, the Court also clarified that the current case did not contest the competence of the Commission to negotiate TTIP and CETA. Instead, it was a challenge to the reasons given by the Commission for the refusal of the proposal (para 29).

Subsequently, the Court specified that the Commission has the competence to act in the way asked by the applicants, i.e. to submit to the Council the two proposals (paras 30-32), and went on to deal with the question of whether these actions can be excluded from an ECI either because they are preparatory acts, or because they are not necessary for the implementation of the Treaty, as the Commission had argued (para 33).

On the definition of a ‘legal act’ for the purposes of an ECI, the Court sided with the applicants: the notion of ‘legal act’ in Article 11(4) TEU, and Articles 2(1) and 4(2)(b) of the ECI Regulation cannot be interpreted to include only final EU acts with legally binding effects vis-à-vis third parties. The Commission’s position is not justified by the letter of the law or by the overall purpose of these provisions. This was all the more so since the actions in question, which concerned the conclusion of an international agreement, fit squarely into the definition of a ‘Decision’ in accordance with Article 288(4) TFEU, as clarified in Case 114/12 Commission v Council. Besides, a broad interpretation of ‘legal act’ is mandated by the democratic principle on which the EU is founded (Article 2 TEU) (paras 35-37).

In addition, the Court rejected the Commission’s argument that the Initiative could not have been registered because the suggested actions did not aim to the implementation of the Treaties and thus were destructive to the law-making process. According to the Court, there is nothing in Article 11(4) TEU or Article 2(1) ECI Regulation indicating that citizens cannot act through an ECI in order to prevent the adoption of a legal act. Furthermore, the conclusion of TTIP and CETA would have modified the EU legal order. As such, by advocating to stop the two agreements, the ‘Stop TTIP’ organisers were actually acting for the implementation of the current Treaties (para 41). In any case, Initiatives that propose the non-signature and non-conclusion of an international agreement produce legal effects since they may prohibit the modification of EU law intended by the said agreement (para 43).

Lastly, even though the Court did not explicitly address the applicants’ second claim on the unequal treatment of their Initiative in comparison with the Swissout Initiative, it did address the paradoxical situation that resulted from the treatment of the two Initiatives. This paradox resulted from the fact that, according to the Commission’s interpretation, an ECI could propose the termination of an existing international agreement but not the termination of the negotiations towards such agreement. The Court took a citizen-friendly approach in saying that citizens should not be obliged to wait until an agreement is concluded before they can contest the conclusion of the agreement through an ECI (para 44). In this sense, the Court has put proposals asking for the termination of negotiations on a par with those asking for the opening of negotiations, and has interpreted the scope of the ECI as being capable of encompassing both type of proposals.

Commentary

I had commented on an earlier publication that the ‘Stop TTIP’ case was a good opportunity for the CJEU to step in and point out the correct interpretation of Article 4(2)(b) of the ECI Regulation regarding proposals concerning the conclusion of international agreements. It would seem that the General Court has seized that opportunity. The judgment widens the scope of the ECI by completely overruling the Commission’s interpretation of legal admissibility in the particular context. In this sense, the judgment is a positive and constructive development not only for the ECI organisers, who had been waiting for it for almost three years, but also for those interested in starting an ECI campaign on a topic related to an international agreement, as well as for ECI stakeholders who have been calling for a more flexible legal admissibility test.

What makes the case especially interesting is the extensive reliance of the Court on the nature of the ECI as a democratic participation mechanism that intends to foster democratic dialogue and give citizens the opportunity to address the Commission in order to request action. For instance, the Court implicitly rejected the Commission’s first argument that a potential breach of Article 11(4) TEU was irrelevant and that the only relevant legal text should be the ECI Regulation which is based on Article 24 TFEU and stipulates the details of the legal admissibility test. Both the Court’s interpretation of ‘legal acts’ for the purposes of registering an ECI (paras 35-36) and that of ‘implementing the Treaties’ (para 41) relies on a joint reading of Article 11(4) TEU and the relevant provisions of the ECI Regulation. The Court even considered the ECI in light of the fundamental principle of democracy as included in the Preamble of the Treaty and the EU Charter of Fundamental Rights in order to broaden the scope of the right to bring an ECI beyond the Commission’s delineation (para 37).

In addition, the Court has held a more restrictive view than the Commission on what is an ‘unacceptable interference with the adoption of a legal act’ when it comes to an ECI. According to the Court, the very notion of citizens’ participation in the democratic life of the EU - of which the ECI is part - includes the possibility to ask for the modification, as well as the partial or total repeal of legal acts. A true form of citizens’ participation in the democratic life of the EU should give the opportunity to citizens to obstruct, or interfere with, the adoption of a legal act. Since it is entirely up to the Commission to decide the follow-up of a successfully submitted ECI after the public hearing of that ECI (Article 10 ECI Regulation), it could not be said that the registration of ‘Stop TTIP’ would have been an unacceptable interference with the legislative process or that it would have breached the principle of institutional balance (paras 45-46). It would seem, therefore, that the Court has taken into consideration the overall discretion of the Commission at the end of the ECI process when interpreting the legal admissibility test, which takes place at the beginning.

Given that this is only the second time that the General Court annuls a Commission’s decision to reject a proposed ECI, the answer to the question ‘what happens now?’ is not entirely clear. After the Minority SafePack case, the Commission registered the part of the ECI that it considered admissible. As a response to the judgment, the Commission also issued a Decision elaborating on its reasons for only registering part of the ECI. The situation this time around is more complicated. As mentioned above, the ‘Stop TTIP’ organisers went ahead with collecting signatures despite the refusal of their ECI. Impressively, within one year (October 2014 – October 2015) the campaign collected around 3.3 million signatures, more than any of the formally registered ECIs. Subsequently, the organisers stated in their website: ‘we demand that the European Commission treat us like a regular ECI which means we expect an official response from the European Commission and a public hearing in the European Parliament.’ The Commission is now faced with interesting dilemmas: Will it register the ECI or pursue the case further by appealing before the European Court of Justice? If it does register the ECI, will it accept the collected signatures or will it oblige the organisers to start over? In its plans to propose revisions to the ECI in the near future, will the Commission try to overturn the new judgment – or accept and fully incorporate it?

The factor of time also makes the upcoming Commission’s response to this case particularly noteworthy. Between 2014 and 2017 we have seen major developments with regard to TTIP and CETA, including 15 negotiating rounds on TTIP up to October 2016 and a proposal in July 2016 by the Commission to the Council for the signature and conclusion of CETA. More recently, the European Parliament voted in favour of CETA after Wallonia nearly blocked the agreement. All of these developments are in fact the exact opposite of what the ‘Stop TTIP’ organisers were requesting in their proposal, which indicates the importance of momentum to an ECI’s overall success.

On a final note, I wonder what the implications of the General Court’s judgment are with regard to future ECIs relating to Brexit. It would seem that the judgment has opened the door to ECI proposals objecting to a possible future agreement on the UK-EU relationship, assuming that such an agreement will be eventually negotiated on the basis of Article 207 and 218 TFEU. Of course we have a long way to go before this issue even becomes relevant – if it ever becomes relevant at all. However, such a scenario would certainly open a new dimension to citizens’ participation and voice in the Brexit process. Meanwhile, let’s see how the Commission will respond to Stop TTIP and how the organisers will continue their campaign.

Photo credit: Stop TTIP
Barnard & Peers: chapter 24



[1] The judgment is not available in English yet. This commentary is based on my own translation from the Greek version and any translation errors are mine.
[2] I had elaborated on the Commission’s Decision in an older publication: A.Karatzia “The European Citizens’ Initiative in practice: Legal admissibility concerns” (2015) 40 EL Rev. 509, pp. 516-518

Wednesday, 10 May 2017

Think of the children: the ECJ clarifies the status of non-EU parents of EU citizen children living in their own Member State




Professor Steve Peers

What immigration rights do non-EU citizens have under EU law? There are three main areas of EU law that address this issue: EU immigration and asylum law; EU treaties with non-EU countries; and EU free movement law. The latter area of law is focussed on EU citizens’ right to move between Member States, and so only covers non-EU citizens if they are family members of EU citizens who have moved to another Member State. Those rules also apply by analogy where an EU citizen with a non-EU family member has moved to another Member State, then moved back to that citizen’s home Member State. (These are known as Surinder Singh cases: see this discussion of the ECJ’s most recent ruling on such cases, from 2014).

But what if an EU citizen has a non-EU family member, but has never moved to another Member State? Such cases fall outside the scope of EU free movement law. They will therefore in principle fall solely within the scope of national law, unless either EU immigration and asylum law or EU treaties with non-EU countries apply (they usually will not). But in a limited number of cases, there is a fourth category of EU law which might apply to them: EU citizenship law.

This principle was first set out in the 2011 judgment in Ruiz Zambrano, which concerned Belgian children living in Belgium with two non-EU parents. The ECJ ruled that expelling the non-EU parents would in effect would result in the departure of the children from the EU, thereby risking the ‘genuine enjoyment of the substance’ of those children’s EU citizenship rights.

Subsequent ECJ case law (discussed here) made clear that this principle is apparently restricted to the non-EU parents of EU citizen children living in their home State. Cases very similar to Zambrano – two non-EU parents of an EU child – are rare, because Member States now rarely, if ever, confer nationality upon children simply because they are born on the territory. However, there are rather more cases where: a) a home-State EU citizen marries a non-EU citizen, b) their child gets home-State citizenship because one of her parents is a home-State citizen; and c) the parents’ relationship ends.

In those cases, Ruiz Zambrano still potentially applies, as long as the non-EU parent is the ‘primary carer’ for the home-State EU citizen child. In that case, removing this parent to a non-EU country would in effect force the EU citizen child to leave the EU as well.  But when exactly does the ‘primary carer’ test apply? The ECJ clarified this issue in today’s important judgment in Chavez-Vilchez and others.

Judgment

Chavez-Vilchez and others concerned a number of non-EU parents of Dutch children in the Netherlands, who sought to argue that they were primary carers of those children, and so entitled to residence in accordance with the Ruiz Zambrano judgment. The Dutch government argued that they could not automatically be considered primary carers if it was possible for the other parent, ie the Dutch citizen, to take care of the children:

…the mere fact that a third-country national parent undertakes the day-to–day care of the child and is the person on whom that child is in fact dependent, legally, financially or emotionally, even in part, does not permit the automatic conclusion that a child who is a Union citizen would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. The presence, in the territory of the Member State of which that child is a national or in the territory of the Union, as a whole, of the other parent, who is himself a Union citizen and is capable of caring for the child, is, according to the Netherlands Government, a significant factor in that assessment (para 66)

While the Court of Justice agreed that the non-EU parents could not automatically be considered as primary carers where the home state EU citizen child was dependent upon them, the Court’s approach was more open. It began by restating prior case law: the key issue was ‘who has custody of the child and whether that child is legally, financially or emotionally dependent on the third-country national parent’ (para 68). It then reiterated, following Zambrano, that dependency was particularly significant (para 69). Then it added new detail on how to assess dependency:

…it is important to determine, in each case at issue in the main proceedings, which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent. As part of that assessment, the competent authorities must take account of the right to respect for family life, as stated in Article 7 of the Charter of Fundamental Rights of the European Union, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in Article 24(2) of that charter (para 70).

For the purposes of such an assessment, the fact that the other parent, a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. In reaching such a conclusion, account must be taken, in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium. (para 71; emphases added)

The Court went on to answer questions from the national court about the burden of proof in Zambrano cases, which were connected with the substantive test to be applied. The Dutch government had argued:

…the burden of proof of the existence of a right of residence under Article 20 TFEU lies on the applicants in the main proceedings. It is for them to demonstrate that, because of objective impediments that prevent the Union citizen parent from actually caring for the child, the child is dependent on the third-country national parent to such an extent that the consequence of refusing to grant that third-country national a right of residence would be that the child would be obliged, in practice, to leave the territory of the European Union (para 74).

Although the ECJ accepted that the burden of proof lay upon the non-EU parent (para 75), it also ruled that national authorities ‘must ensure that the application of national legislation on the burden of proof’ in such cases ‘does not undermine the effectiveness’ of EU citizenship rights (para 76). This meant that the authorities had to make ‘the necessary inquiries’ to find out where the EU citizen parent lived, ‘whether that parent is, or is not, actually able and willing to assume sole responsibility for the primary day-to-day care of the child’ and whether the EU citizen child was dependent upon the non-EU parent (para 77).

In effect, the Court ruled that while the non-EU citizen must make a prima facie case, national authorities share some of the burden to investigate some aspects of the case. Again, the substantive test applicable is less stringent than urged by the Dutch government.

Comments

Today’s judgment clarified a number of issues relating to Zambrano cases, following on from last year’s judgments in CS and Rendón Marín (discussed here) which clarified when non-EU Zambrano parents could be expelled for public policy reasons. While the 2016 judgments referred to the child’s best interests, age, situation and dependency (referring to case law of the European Court of Human Rights), today’s judgment also refers to ‘physical and emotional development’, ‘emotional ties’ to both parents, and the effect of separation on the child. All of these are factors relating to the child, not to the non-EU parent; but all of them nevertheless concern the child’s links with that parent.  

The Dutch government’s desired focus on the capability of the EU citizen parent takes a back seat to the child’s best interests, as further elaborated by the Court. This will protect more non-EU parents, but in a differential way. Oddly, the Court’s case law does not take express account of situations of joint custody, or the more general argument that the child’s best interest will usually be to maintain strong relationships with both parents (assuming they are not negligent or abusive).

Could it also be argued that the requirement of always seeking to identify a ‘primary carer’ is problematic from the point of view of gender equality?  Due to the division of labour relating to child care in practice, the Court’s rulings would classify more non-EU mothers than non-EU fathers as ‘Zambrano carers’; but the expulsion of those fathers will only increase the childcare demands on the EU citizen mother who remains, as well as disrupt the child’s right to maintain a relationship with his father. Of course, the presence of the parent who looks after a child day-to-day is essential; but children love the parent who kicks the ball as well as the parent who cooks the meal.

The procedural aspects of the Court’s judgment are interesting, but raise further questions: is there a right to appeal, to a decision within a reasonable time, to a lawyer, to legal aid? In last year’s judgments, the Court of Justice referred to concepts from EU free movement law and its relevant case law when discussing the substantive test for expelling Zambrano carers; but it made no such cross-references today. The long-term immigration status of the parent is also an open question, although Zambrano noted that there should be access to employment to make the residence rights of the parent effective.

Finally, a Brexit point: the draft EU position for negotiating acquired rights does not appear to cover Zambrano carers. From a technical point of view, this is logical because the case law concerns (from the UK’s perspective) non-EU parents of UK citizens who have not moved within the EU. So no free movement rights have been acquired; we are rather talking of EU citizenship rights which will necessarily be lost when the UK ceases to be a Member State, since citizenship of the EU is defined as deriving from the nationality of a Member State. But from a human point of view, any deterioration in legal status could damage or even shatter the family lives of the children concerned. Zambrano carers should therefore be protected ideally in the Brexit talks, or failing that by the UK unilaterally.


See also further reading on UK Zambrano case law by Charlotte O'Brien and Desmond Rutledge

Barnard & Peers: chapter 13
JHA4: chapter I:6
Photo credit: German embassy London