November 26, 2014
The Prime Minister is to make another much anticipated Big Speech about Europe. This time, the theme is immigration – or, rather, how to stem the alleged tide of EU citizens exercising their lawful right in accordance with Article 21 TFEU to move to and reside freely within the United Kingdom. David Cameron has already told his party conference that he promises to go the Brussels to ‘sort it’, and that unless immigration is curbed, Brexit looms. Other party leaders and eurosceptic think-tanks have already made their bids on the matter, most recently my own party leader Nick Clegg in the Financial Times.
Making a reality of EU citizenship
Few British commentators are versed in EU law. It would be better if they were. Article 21, for example, says nothing about ‘workers’ but refers to ‘every citizen of the Union’ having the ‘right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by measures adopted to give them effect’. No secondary law is therefore required to permit an EU citizen to move to live in Britain. Of the Treaty-based conditions relevant to free movement, the most important is to be found in Article 18 TFEU which says that: ‘Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited’. Article 20 spells it out further: ‘Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia, the right to move and reside freely’ across the EU. Other articles of EU primary law (such as Article 3(2) TEU and Article 31 of the Charter of Fundamental Rights) confirm and reinforce the centrality of the principle of free movement and its direct effect. In fact, freedom of movement is the most important element of the proud concept of EU citizenship. If one were looking for one of the EU’s ‘red lines’, look no further.
Maintaining the single market
Then there is the internal market, which is defined in Article 26 TFEU as ‘an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties’. So there is an economic reason why people should be enabled to be as mobile as the goods they produce, the services they provide and the money they make. For many years it was a bane of economists that European labour was too immobile, and that the single market would never become a reality unless and until it was exploited by people on the move. Since the fall of the Berlin Wall, however, migration has been churning across Europe. Although immigrant labour is always disliked by the poorer, less-educated indigenous working class, the overall effect of immigration in terms of GDP is widely acknowledged to be beneficial. Business and the welfare state in Germany and the UK, in particular, have relied on immigrant labour for many decades, and this trend will not be reversed as their own communities age. Migration across the EU also serves as an automatic stabiliser, as a new study by Bruegel has explained: the valves of labour flow are just as reversible as the inter-connector gas pipelines that cross the continent. Many young Poles and Irish, for example, return home (plus savings and education) once the balance of economic advantage shifts.
Helpfully, the EU treaties lay down provisions so that ‘freedom of movement of workers shall be secured within the Union’ (Article 45 TFEU). Discrimination on the grounds of nationality over pay, recruitment, ‘and other conditions of work and employment’ is abolished. Recruitment is to be facilitated and job exchange is to be actively encouraged, especially for the young. Migrant workers who are sacked or retire have the right to stay. Administrative obstacles and qualifying periods which form ‘an obstacle to the liberalisation of the movement of workers’ are prohibited (Article 46). The same clause provides for EU laws to be enacted to regulate all these matters, including the management of supply and demand in the labour market ‘in such a way as to avoid serious threats to the standard of living and level of employment in the various regions and industries’. EU legislation is required to ensure the provision of social security for ‘employed and self-employed migrant workers and their dependants’ (Article 48).
The variety and complexity of contributory and non-contributory social welfare systems across Europe, both in-work and out-or-work, make the ensuing EU legislation mightily complicated. As Steve Peers reminds us, there is much litigation in the European Court of Justice. But the basic legal situation is clear: EU law on the equal treatment of migrant workers has direct effect. Member states retain discretion as to their own social security systems, but each and every EU citizen must be treated in an equal way under the provisions of national employment or welfare law. The definition of ‘worker’ embraces those seeking work and those who lose their jobs, students, service providers and the self-employed, as well as their dependents. EU citizen migrant workers must be catered for without discrimination under the appropriate laws of the host state. It follows that any tightening of social welfare qualifications applied by a host state to EU migrants must also apply to its own nationals. As the recent case in Leipzig confirmed (Dano), benefit tourists do not profit under EU law. But self-sufficient persons can live wherever they choose within the EU – as millions of Britons have decided to do in sunnier climes, without let or hindrance.
When making his speech, Cameron will surely advise his audience that, while changing EU secondary legislation on migrant workers is possible, it would still need to be consonant with EU primary law in respect both of EU citizenship and the internal market. He might usefully add that all EU legislation needs to obtain a qualified majority in the two chambers of the EU legislature, Council and Parliament, so it really has to be crafted (by the European Commission) in the general interest of all states and citizens. In the absence of a destabilisation of the British welfare state, chronic industrial collapse or a threat to public security, Cameron and his colleagues will find it hard to substantiate the anti-immigration case they have so glibly launched. Bending EU law to suit the narrow or partisan interests of one state will not wash.
Changing the Treaties is a good idea for other reasons, but not this one. Stopping immigration will damage the economy. Reducing the rights of migrant workers is illiberal. Blunting the force of EU citizenship is uncivilised.