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BACKGROUND DOCUMENT FOR THE HOTLINE
1. Raising the issue and sources of information “Europe without barriers” is the slogan of the current Czech Presidency of the Council of Ministers. To achieve this objective in the area of free movement of people is a question of enforcement. The aim of this background paper is to stimulate debate with a wider audience of citizens who have problems enforcing their European rights or information, advice services or lawyers acting on their behalf. What has been their experience in seeking advice and redress? After sending complaints to national authorities or the European Commission, have they been satisfied with the outcome? Has petitioning the European Parliament or sending a complaint to the European Ombudsman helped their cause? How easy is it to take a case to a national court and obtain a result or a reference to the European Court of first instance on the alleged violation of European law? Our aim is to collect ideas and recommendations on how the national authorities and the European Union could improve their service to citizens in resolving their problems. In his report on the citizen and the application of community law, Alain Lamassure, MEP makes a strong case for starting with the citizen and building policies for better application of EU law from the bottom up, rather than the top-down1. The EU Institutions have not so far carried out any survey across all their various informal and formal mechanisms of citizens’ own expectations and experience. The election of a new European Parliament in June 2009 and the appointment of a new European Commission at the end of the year provide an opportunity to review what citizens expect of the different channels of information complaint and redress with the EU and how they could be improved. It is important that the issue of enforcement is raised during the European election campaign2. The European Commission and the European Parliament are considering this issue and three sources of information are available:
Le citoyen et l’application du droit communautaire, rapport au Président de la République, 8 juin 2008 For further information about ECAS and its demands for the June 2009 European elections http://www.ecas-citizens.eu/content/view/162/36/
General policy on the application of community law In a “Europe of results, applying community law”3, the European Commission points out that 70% of complaints can be solved informally, but that if they go further, “the process can be lengthy…” The Commission’s proposed solutions go in the direction of increasing preventive measures, cooperation with member states and guidelines to avoid lengthy infringement procedures, and prioritising complaints. Annual reports The Commission’s annual reports on the application of community law and the staff papers showing the mechanisms in place in different directorate generals are a useful source of information4. A constant theme in this report is that of the amount of time it takes to deal with infringement procedures – 23 months – and to close a complaint – around 35 months. The annual reports of the Petitions Committee give an account of their own work and their recommendations to the Commission. The Legal Affairs Committee has been critical of the Commission’s policy to set priorities. Another issue, for the European Ombudsman, is that two thirds of requests received are outside his remit, which is limited to maladministration by the EU Institutions, rather than by member states when they apply European law5. A test case This is the application 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. In its communication on applying community law, the Commission singled out this socalled citizenship directive for special treatment. In a report6 the Commission concludes “that the overall transposition is rather disappointing. Not one member state has transposed the Directive effectively and correctly in its entirety. Not one article of the directive has been transposed effectively by all member states.” Serious problems persist around residence requirements, the equal treatment of third country national family members of EU citizens, the recognition of partnerships, guarantees against expulsion…The European Parliament has commissioned its own study from ECAS.
2. Mind the gaps: why it is important for the EU to improve enforcement From its work as a European advice service and running the citizens’ signpost service for the European Commission, ECAS sees evidence every day that citizens inevitably judge the performance of the EU on whether as a European citizen, someone is available to deal with their problem, how well moving around Europe works in practice and whether any barriers can be removed easily. In an area where there is a direct link between EU legislation, the way it is applied in member states and people’s every day lives, the EU
COM (2007)502 final of 5.9.2007 215th annual report from the Commission on monitoring the application of community law (COM 2008 777/4) 5 Report of the Petitions Committee on the annual report on the European Ombudsman’s activities in 2007 (PE407.934v03-00) 6 COM (2008)840/3 of 10 December 2008
needs to be aware of the gaps between legal theory and practice on the ground, between expectations and results. On the one hand, Treaty rules and legislation are comprehensive, whilst the recent case law of the European Court of Justice is making free movement a fundamental right of citizenship which the individual does not have to justify; rather it is for member states to justify any restrictions as proportionate7. People’s rights under EU law are more developed than they imagine. Furthermore, on the basis of the case law of the Court and building on previous scattered laws, the EU has recently consolidated legislation: The three main areas covered by the legislation are: Entry and residence. Directive 2004/138 on the right of EU citizens and members of their families to move and reside freely within the territory of the member states is based on the case law of the European Court of Justice related to articles 18 and 12 of the Treaty. It brings together 10 previous regulations or directives for different categories of the population and situations (deadline for transposition: 30 April 2006) Social entitlements. Regulation 1408/71 on the coordination of social security and the implementing rules has recently been modernised and updated as regulation 883/2004 but has yet to come into force pending agreement between the Council and the European Parliament on the implementing rules. Recognition of qualifications. Directive 2005/36 on the recognition of professional qualifications brings together 15 laws of an earlier generation harmonising qualifications profession by profession and more recent legislation on mutual recognition (deadline for transposition 1 January 2007).
On the other hand, a report from the citizens signpost service (CSS) on the questions and complaints received in relation to these three legislative initiatives shows that there are numerous problems8. The way the first directive has been applied by member states has undermined the aim of simplification and facilitation of free movement. The gap between legal theory and practice is becoming more and more evident to citizens, at least the minority 22% aware of their European rights. The spread of on-line services on the “Europa” website and national government websites is giving citizens more direct access to the texts of directives and court judgments in defence of their interests. It is a positive factor that the questions and complaints from citizens on the move are becoming more complex and more challenging. With greater awareness, expectations also increase that problems will be solved quickly and easily. It is relatively easy and cost-effective to improve access to information to find out more about one’s rights and how they should be applied. It is much more difficult to reform the slow, cumbersome and rather archaic systems to come up with the answers and the solutions.
For a review of the recent case law of the European Court of Justice, the ECAS website (http://www.ecascitizens.eu/content/view/166/180/) 8 European citizenship tied up in red tape (http://www.ecas-citizens.eu/content/view/181/36/)
3. How could enforcement be improved? In this section we discuss some of the current issues beginning with how to prevent problems arising in the first place by better application of the directives, and moving on to information advice and non-judicial or judicial remedies including access to the European Court of Justice.
(i) Prevention The difficulties with enforcement of EU law are to some extent attributable to the form most legislation takes which has an impact on citizens’ rights. Directives are blueprints which are binding as to the results to be achieved but which leave the choice of form and methods to the national authorities. The implementation of the “citizenship” directive is such that citizens face a wide spectrum of different rules and administrative practices across the EU 27, contrary to the principle of the uniform application of EU law. Hence, the preference of the European Commission to use regulations which are directly applicable, but this is not as an appropriate instrument for free movement of persons as it is for free movement of goods. Nevertheless, could regulations be used more frequently to eliminate barriers to free movement of people? The responsibility for applying community law lies with Member States in the first instance whereas it is the role of the Commission as guardian of the Treaty, to ensure that they do so. Does the Commission intervene early enough to ensure that at least a majority of the problems with the implementation of directives do not occur in the first place? For example, the Commission communication of 10 December 2008 on the application of the citizenship directive proposes measures which might have been taken before the deadline for transposition: meetings with member states, and the issuing of guidelines. Such preparatory work has for example been intense in the case of the implementation of the services directive, which should be applied by 1 January 2009. Similarly, could obligations be placed on member states to notify proposed implementing laws in advance to the Commission and ask for an opinion on the question of conformity? Should there be obligations on member states to consult more widely before adapting their implementing laws? The European Parliament has asked that member states should draw up “conformity tables,” for example.
(ii) Information, advice and active help The Commission has made considerable progress in developing what is described as a “cascade” system. Citizens are first directed through the Europa website or a free phone number to Europe Direct, which supplies information about European rights to an average of 100,000 citizens each year and sends enquirers to sources of information and legislation available on-line. More difficult questions are sent to the citizens signpost service (CSS) a more specialised network of legal experts run by ECAS which provides
legal advice to about 9000 citizens each year, but does not have a mandate to intervene actively, so much as “signpost” citizens to the nearest available source of help. Within the cascade system, Solvit has the highest profile because it involves not only the Commission, but also cooperation among member states, which undertake, if they take on a case, to find a solution within 10 weeks. There is no doubt that peer pressure by member states in bilateral contacts which cut through “red tape” can be effective to bring reluctant administrations in line. But, it has its limits with some national centres better resourced and more willing to act than others. There are also more specialised networks: for researchers, users of financial services, consumers in general, social security, and EURES - a data base of over 1 million vacancies for job-seekers. The degree of success of the cascade system has not been evaluated. However, there is no doubt that most problems can be solved by information and advice alone, because they result from a misunderstanding or failure to respect procedures at the right time and in the right way either by the citizen or the administration. There has been real progress in facilitating access to the EU Institutions, with the Commission working towards at least a virtual single access point or one-stop shop through Europe Direct. This makes sense because questions from citizens often cut across different areas of legislation and competence: residence, tax or social security. For information and advice, the virtual one-stop shop can work well. What remains less convincing is the extent to which complaints can be effectually followed up and solved by the Commission, when competences are so fragmented. Whilst one department deals with borders and residence, another deals with social security, another with recognition of qualifications and a fourth with the youth, educational and training programmes which underpin free movement. The “one-stop shop” does not necessarily mean putting all services together which could discourage specialisation. But, should there be a Commissioner in charge, a more personal focal point for citizens, who can also coordinate and advocate the cause of the services at a political level? In its communication on applying community law, the Commission recognises however, that some inquiries and complaints cannot be resolved through these mechanisms. When this occurs, the relevant Commission service (if it receives the complaint and decides to follow it up) often provides the necessary explanation of the scope and limits of EU law, and asks member states for explanations. This “soft” application of the Commission’s role as guardian of the Treaty is often very effective, but much depends on the particular service, and the goodwill of individual officials. The Communication states that there is “insufficient focus on the need for quick, constructive solutions,” but does not spell out how this need might be met. It is particularly important to find ways how this more informal role of the Commission as problem-solver might be enhanced. Could standards and time limits be set? Is this a role which could be delegated for example to an agency working on behalf of all Commission departments?
(iii) The issue of prioritising complaints According to the latest figures, the Commission is currently handling over 3,200 files, including complaints – which from the perspective of the administration is a heavy workload, but in a Union of nearly 500 million people appears to be a fraction of the probable real number of complaints9. In its communication on the application of community law, the Commission proposes to prioritise and deal with some cases more immediately and instantly, especially “those infringements which present the greatest risks, widespread impact for citizens and businesses and the most persistent infringement confirmed by the Court.” The problem with applying this approach to citizens, who are not trained in EU law and normally do not seek legal advice, is that it is difficult at the outset to assess how serious the complaint is. This is why the European Parliament has questioned priority criteria and asked “whether such an exercise is really needed and does not risk reducing excessively the scope of infringement procedures, for which the Treaty does not provide any hierarchy; calls on the Commission to evaluate whether a simple increase in the available resources in the most exposed Directorate General would not be a preferable solution to improve the capacity to follow-up complaints.10” Whatever the outcome of this debate, the Commission is bound to set some priorities and in the area of the free movement of persons, the criteria are likely to be that the possible infringement was not just an isolated instance of maladministration but a standard malpractice affecting a class of citizens.
(iv) Accountability towards the complainant The Commission also has a wide discretionary power, supported by the European Court of Justice, as to whether to act on a complaint. The quid pro quo of the Commission’s freedom of action should be for the Institution to become more accountable to the complainant. There could be a requirement to respond within a certain deadline as to why a complaint has or has not been acted upon, whilst providing greater access to the file, so that the citizen is better able to decide on the next step. It is a symptom of the problem of lack of transparency in the complaints procedure that lawyers are attempting to find a way around the problem by requesting the file through the regulation on access to documents, which is refused. The communication referred to already does contain a section on increased transparency, but which refers largely to general measures and preserves a certain ambiguity on accountability towards individual complaints by mentioning the provision of summary information at all stages, whilst continuing “to maintain confidentiality on the content and timing of contacts with member states.” This issue, frequently raised by the European ombudsman, remains largely unresolved.
No one knows the number. From informal inquiries to national advice services, a reasonable but very rough estimate would be that if one in ten of the population complains, one in ten of those questions or complaints has a cross-border or European law dimension. This suggests that the total number of questions and complaints relevant to the EU could be 4-5 million per year. 10 Frassoni report A6-0089/2006 from 24/03/2006
(v) Should Commission powers of enforcement be increased? In a speech to the conference in November 2006 on the future of the internal market, Mario Monti compared his experience as Commissioner for competition with that as Commissioner for internal market. It so happens that his comparison is relevant to ECAS, which he chaired from February 2005 until October 2007. In the competition area, the Commission can issue decisions and order anti-competitive practices to cease or change, subject to appeal to the Court. In the internal market, the Commission has to follow “baroque” procedures. These procedures, except perhaps in the case of large companies, which can afford to wait, are far too slow. It is also unlikely that the Commission will take action on an isolated individual complaint which may well be an accident or the result of a misunderstanding rather than a deliberate infringement. Currently it might happen but in the future with the prioritarisation of complaints, it will be less likely. Could the Commission encourage group action, as it has for consumers? How could its powers of enforcement be strengthened? Should the Commission be given a power to order Member States not to continue the application of an act considered to be contrary to Community legislation in order to ensure that while the case is pending before the Commission, Member States do not take advantage of the relatively long time of the procedure to restrict free movement for European citizens?
(vi) Petitions to the European Parliament and complaints to the European ombudsman The annual reports of the Petitions Committee in the European Parliament and of the European ombudsman show that within their respective spheres of competence, both bodies can achieve results for citizens. There are about 1,000 petitions each year, including mass petitions. The ombudsman receives 3,300 complaints but two thirds are sent on to the Commission, member states or national ombudsmen because they do not relate to his mandate which is restricted to maladministration by the EU Institutions. This raises a general issue of how to describe the cascade system under (i) better so that complaints go to the right address in the first place. There is no doubt that a petition, often used as a way to back up a complaint to the Commission, can be effective. Selected petitioners are heard by the Committee, which can be their advocate with the Commission and national administrations. However, the procedure is slow and formal, lasting over a year. The European ombudsman also takes one year to investigate and correspond with the parties and reach a conclusion on a complaint. For citizens, there is a trade off between using formal procedures which carry weight but are slow or more informal ones which are quicker but highly dependent on the good will of the official or member of the European Parliament dealing with them. The well argued letter on behalf of the citizen from an individual member of the European Parliament could be just as effective as a more formal complaint or petition. MEPs also provide a link to national members of Parliament. Elected representatives need though more support if this role is to be enhanced.
(vii) Should citizens have greater access to the European Court of Justice? The issue of access – or rather the lack of it – to the European Court of Justice was taken up as a result of cases heard in the Court of first instance – by the working party on the charter of fundamental rights during the Convention on the future of Europe. As a result, the Lisbon Treaty amends article 230 of the present EC Treaty by widening the scope of the action for annulment. A citizen will be able to initiate a proceeding “against an act addressed to that person or which is of direct and individual concern to him or her, and against a regulatory act which is of direct concern to him or her and does not entail implementing measures.” In reality this provision does not go very far to improve remedies for citizens since in the field of citizens’ rights legal acts are usually directives and not regulations (cf. (i)). It is however a step in the right direction. The Lisbon Treaty also throws new light on the status of the Charter since finally it becomes a legally binding document which means that citizens may invoke it before national courts. The rights to good administration, effective remedy and fair trial can help encourage speedier and more efficient extrajudicial and judicial remedies for breaches of EU laws. However, it is a shortcoming of the issue around the Charter that the UK and Poland opted out from applying the document as legally binding. Such a clause calls into question the efficiency of the Charter since it may entail a situation where a UK citizen residing in France can invoke the text before a French court whilst a Polish citizen residing in the UK cannot do so before the UK courts. Citizens find it hard to understand why it is necessary, to defend their European rights, to have to go first to a national court, rather than directly to the European Court of Justice. There is also confusion between the Luxembourg and Strasbourg courts. It is difficult to explain why a Court which is so much in advance of the legislative process in developing the rights of European citizens interprets the Treaty so restrictively on access. If wider access to the European Court could be established, how to make sure that this does not become counterproductive by opening the floodgates? There would have to be conditions on access to the European Court of first instance as a measure of last resort, to avoid situations of impasse and denial of justice. Where remedies have been exhausted at an administrative level and through a formal complaint to the European Commission, a citizen or group of citizens should have a right to appeal to the European court.
4. Conclusion From the Commission’s own annual reports and the reactions in the European Parliament it appears that the political will which is invested in ensuring legislation is adopted in the first place is lacking, when it comes to enforcement. Does the Commission pursue its “Europe of results” more rigorously when it comes to persuading mobile phone companies to reduce roaming charges than when it comes to persuading member states to enforce European citizen rights correctly? The Commission in its role of guardian of the Treaty has discretionary power as to whether it takes up a complaint in the area of free
movement of persons,11 whilst infringement procedures are publicised, less formal interventions with member states remain confidential. This is a source of frustration for the European Parliament or complainants in attempting to assess the effectiveness of the Commission’s action. This paper has given an overview of the informal and more formal channels which exist for the European citizen seeking quick, effective and inexpensive solutions to problems when moving around Europe. Although there is insufficient data on the volume of questions and complaints from citizens, evidence suggests that a marked improvement in the supply of information by the EU will encourage increased expectations that “someone will take care of my problem” At a time when the Union is legislating less, enforcement should in any case be a main priority. A number of questions arise for consideration: Can the Commission take on a more pro-active role in the process of implementation of directives by member states to prevent problems arising in the first place? How to develop the idea of the “cascade system”, starting with information and moving on to advice and problem-solving? How can the EU clarify its message to citizens so that complaints and requests are better targeted to the right geographical level and institution? Should there be a Commissioner responsible? Can the Solvit system be generalised so that the deadline of 10 weeks to find a solution applies not only between member states, but also within member states and EU institutions? Could common quality time limits and standards be set? Should the Institutions prioritise complaints or be given the necessary resources to deal with all of them? Should there be a possibility for the Commission to be able to order a legislative or administrative measure restricting free movement of people to be stopped? To what extent should the powers available to the Commission in the competition area also apply to the internal market? Should the Commission be made more accountable to complainants? Should the respective roles of the Petitions Committee, the European ombudsman and individual members of the European Parliament be strengthened to defend European citizens’ rights? Under certain circumstances should the individual or a group of individuals have the possibility to take a case not only to a national court but to the European court of Justice?
Regulation EC 297/98 “The rapid intervention system” makes the Commission more accountable to complainants and giving it more power when it comes to free movement of goods as opposed to free movement of persons
This is the right time to consider these questions. The credit crisis and recession will produce asymmetric shocks and unexpected impacts on free movement of people. It will be necessary to step up enforcement to keep Europe open and prevent protectionist, even zenophobic pressures. The Lisbon Treaty is currently being ratified and the Charter of fundamental rights should become legally binding, with its rights to good administration and access to justice. Furthermore, the European elections in June 2009 and the appointment of a new European Commission will undoubtedly lead to proposals for institutional and administrative reforms which should include how to achieve better application of EU law for citizens. Therefore all those concerned should raise their voice during the European election campaigns to keep Europe open and make it work better.
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