Dr. Nuria Ramos Martín, Assistant Professor – Department of Labour law/HSI, UvA
In June 23rd 2016, voters in the UK will go to the polls facing the crucial question of the famous British tragedy: “To be or not to be” EU citizens?
With the public opinion and the tories in the government divided, the UK citizens need to decide whether or not to stay in the European Union. In newspapers all over the world, opinions and views on the pros and cons of this Shakespearian dilemma are discussed. The president of the USA, Barack Obama, has just said that Brexit would leave UK at the ‘back of the queue’ on trade. Even the Trade Union Confederation – TUC has issued a report campaigning for their members to vote in favour of the UK remaining in the EU and explaining the advantages for workers brought by the EU social legislation and policies. Employers’ associations have calculated that the Brexit would bring along job destruction (an estimation of a million jobs less until 2020) and a decrease of 5% of the GDP. Moreover, the pro Brexit campaign is deliberately elusive in core economic issues, in particular on the danger that this process poses for the future of the London City as global financial center.
The Brexit process is supported by populist parties such as the Europhobic UKIP. Growing populism and EU skepticism is not an exclusive phenomenon happening in the UK. Let’s remember the resounding ‘Noes’ of the French and Dutch population to the EU Constitutional Treaty. The growth of populist and xenophobic parties in many EU countries is a reality and, from my point of view, a worrying concern. In many EU Member States, xenophobia and the public demonstration of the rejection to migrants have become an “ordinary” event in many European cities, exacerbated by the refugees’ crisis affecting our continent. Under these circumstances, the UK citizens need to decide whether their country will continue to be a Member State of the EU, with an agreed ‘special status’, or leave the Union. A core issue in building the public opinion on this matter is migration. One of the main pillars of the Brexit supporters ‘Vote Leave’ campaign is that the UK should take back the full control of its borders and cut migrations flows to the country.
In this scenario, the EU, represented by the president of the Council Mr. Donald Tusk, has negotiated an agreement with the UK representatives on the ‘special status for the UK in the EU’. This settlement has been signed by the EU leaders at the European Council of 18-19 February 2016. The set of arrangements on the new status for the UK within the EU are divided in four thematic sections: economic governance, competitiveness, sovereignty (including a reform on the application of the principle of subsidiarity with the possibility of a veto of a EU legislative proposal by a majority of 55 % of the votes of the national Parliaments), and social benefits and free movement. On this last issue, the European Council has agreed on a new mechanism to counteract the abuse of free movement of workers. In this case, the European Commission considers that the information provided to it by the United Kingdom shows that the type of exceptional situation for using the safeguard intra-migration mechanism exists in the United Kingdom nowadays. Accordingly, the United Kingdom would be justified in triggering the mechanism to 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. In addition, the member States agreed to pass legislation limiting the exportability of child benefits to a Member State other than that where the worker resides. Therefore, a reform of Regulation No 883/2004/EC on coordination of the social security rules of the EU Member States will be adopted to index such benefits to the conditions of the Member State where the child resides.
According to the signing parties, the “Anti-Brexit” arrangements are fully compatible with the Treaties and will become effective when the UK communicates to the European institutions that this country remains member of the EU. From my point of view, the modification of the mechanism of control of the subsidiarity principle by the national Parliaments could be clashing with the provisions of the Treaties dealing with the legislative procedures. Also, the Commission and the European Council have accepted the argument that the UK is receiving an excessive flow of intra-EU migrants quite straightforwardly. This decision sets out a dangerous precedent, especially as the European Commission has estimated in several reports that the risk of “benefits tourism” by EU economically non-active migrants is very low. Besides, the Court of Justice of the EU in its case law is interpreting quite strictly the requirements for EU migrants to get access to welfare benefits and social assistance in the host Member States. Indeed, the Court of Justice in the case Dano, C-299/14, has ruled that Article 24(1) of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, read in conjunction with Article 7(1)(b) thereof, and Article 4 of Regulation No 883/2004, must be interpreted as not precluding legislation of a Member State under which nationals of other Member States are excluded from entitlement to certain ‘special non-contributory cash benefits’, although those benefits are granted to nationals of the host Member State who are in the same situation, in so far as those nationals of other Member States do not have a right of residence. In 2015, this jurisprudence was confirmed in the Alimanovic case (C-67/14). Moreover, in the case García-Nieto, C-299/14, of 26/02/2016, the Court has clearly ruled that Member States may exclude nationals of other Member States from certain social benefits during their first three months of residence.
On my opinion, there is no real need to establish a safeguard mechanism. The cases of abuse of the right to free movement of workers are the exception and most EU intra-migrant workers move with the genuine purpose of performing an economic activity. That the EU institutions are accepting to accommodate the implementation of the general principle of equality and non-discrimination on grounds of nationality to a fictitious risk, manufactured by populists, is a bad news for the European integration process.
The referendum is already having an unexpected effect in the British residents abroad. An “exodus” of British citizens from continental Southern European countries has started. In the last 2 years, 72.000 Brits, previously residing in Spain, have returned to the UK. This phenomenon seems to be connected with the uncertainty created by the Brexit referendum. This type of population flows are also occurring in France and Italy. It seems the UK citizens (mainly retired persons) living in other EU Member States are afraid that, if the UK steps out of the EU, they will face problems to get access to health care in their country of resident and are worried about the exportability of their pensions.
With British humor the supporters of remaining in the EU have composed the song: “I Love EU”. Hopefully, the populist parties and organisations will lose this battle and enough Brits will sing that ‘love’ song when voting in the referendum at the end of June 2016. Then, on Shakespeare words: “And this weak and idle theme, No more yielding but a dream.”
“El andar tierras y comunicar con diversas gentes hace a los hombres discretos.”
Miguel de Cervantes, Novelas ejemplares-El Coloquio de los perros