When I hear reports on Tory plans for Europe, namely the
renegotiation on the UK’s commitments under the terms of their membership, I
just cannot help but laugh. Firstly the prospectus for reform is ‘sidesplittingly’
vague, secondly it’s hilariously unachievable. So why is it that ‘Call me Dave,’
so easily pedals this message via our News and media outlets free from
journalistic scrutiny? We can regain sovereignty with regard to free movement
the Tories would have us believe. I can’t see it.
As well as other
things, our ‘Call me Dave’ wants his renegotiation to end with, a return of sovereign
control regarding the implementation of new controls on migration into the UK. Achievement
of the latter would be contrary to more than a handful of treaty provisions and
more importantly contrary to the principle of free movement, which is at the
heart of the European Commission’s vision of a united Europe, tending in the
future toward an, ‘ever closer union,’ a phrase you may have heard tossed
around by broadcasters over the past weeks. However, other than just merely
contravening the ideological purpose of the European project, a renegotiation
of powers regarding free movement stands against decades of precedent as handed
down by the European Court of Justice to flesh out the relevant Regulations,
Directives and Treaties.
Directive No.2004/38 consolidates past EU legislation on the
subject freedom of movement within the EU. This directive fleshes out Article
45 of The Lisbon Treaty which states that discrimination based on nationality
between workers is henceforth abolished. You hear that Dave? All EU citizens
have the right to move freely within the Union for purposes of employment as
workers under Article 45. And the concept of a worker has been construed widely
by the European Court of Justice. A ‘worker’ includes, those performing
services under the direction of another and in receipt of remuneration. Now the
requirement for remuneration, in order to be considered a ‘worker’ and hence
have Article 45 TFEU rights conferred upon you, has been somewhat liberalised
to include the receipt of any material need provided for, in consideration of, one’s
employment. In the case of Trojani v CPAS [2004] it was held that, the receipt
of ‘pocket money’ and housing was enough to suffice the requirement of ‘remuneration’
and thus the claimant was deemed a ‘worker.’ The court noted on this occasion
and in many subsequent cases that the determining factor was whether the
services provided were, ‘capable of being regarded as forming part of the
normal labour market.’ What is considered ‘normal’ is judged by the European
Court of Justice who as recent history tells us are in favour of an ever closer
union relying on a purposive reading of EU legislation.
It’s not just ‘workers’ that are protected. Job seekers are
also entitled to protection under Article 45 of the Lisbon Treaty. The European
Court, have construed Article 45 and it’s prohibition on discrimination between
resident workers and non-resident workers to include, the ‘job seeker.’ Job
seeker’s since the case of Antonissen [1991] have been entitled to the same
rights as workers.
Directive 2004/38 provides that all EU citizens have a right
to reside in any member state indefinitely given they are ‘workers’ by the
above definition or self-employed. Also, in instances where the EU citizen is
sick or has become involuntarily unemployed they shall retain their legal
status as a worker and hence their protection under Article 45 of the Lisbon
Treaty. As a ‘worker’ under Article 7 of Regulation 1612/68 individuals are
entitled to equal treatment regarding all social and tax advantages. This
includes any social provisions regarding housing or jobseekers allowance or
even child benefit. It is only in cases where the ‘social provision’ in
question concerns a partial compensation for the obligation to perform military
service, that the court will deem it a permissible obligation. Under Article 45
of the Lisbon Treaty there are circumstances laid out under which a Member State
may avoid its obligations. These are on grounds of Public Policy, Security and
Health.
David Cameron want’s to govern the restrictions on the right
of entry to the UK from Westminster. Directive 2004/38 governs this and the
European Court have made clear that with regards to a derogation on public
policy grounds, expulsion of an EU citizen from a member state cannot be done
on an economic basis or by simply considering the impact of the burden placed
upon public services. On a case by case basis, expulsion must be assessed and
the personal conduct of the individual must represent an affront to a
fundamental societal value. Bearing in mind that when ‘Call me Dave’ talks about
repatriating the power to control our borders, he isn’t overly concerned with
health tourism or terrorism from the EU, at least not in connection with this
policy area, I imagine the only way to prevent the continuation of an open
border policy would be to recruit everyone to join ISIS on the ferry over and
then ‘grab em’ when they land. Although under Article 27 of Directive 2004/38
even a convicted terrorist would fall under the protection of EU law, if the
states aim was one deemed to be ‘serving economic ends.’
To put it mildly, DC has got no chance of bringing home the
bacon on this one. The EU has developed its law regarding EU Citizenship over
decades and this law runs right to the heart of the EU itself, with the free
movement of persons enshrined in the Treaties as fundamental cornerstone. To
detangle the web of case law and legislation in order to circumvent the
European Court’s claim as a supranational entity within a particular policy
area is impossible. If it were possible I would love to see him get all tangled
up.