Steve Peers
If British pro-Europeans could travel back in time, their priority should be returning to 2004. They should focus all efforts on persuading the then-British government to reconsider granting immediate free movement of workers from new EU member states. While economically advantageous, this decision has severely damaged public support for EU membership in the UK, as well as for the UK Labour Party.
Today, the free movement of people is often framed as a fundamental flaw within the EU, prompting calls for the UK to either leave or renegotiate its terms. While David Cameron didn’t initially prioritize this in his renegotiation strategy, the Conservative party now sees significant change to these rules as non-negotiable for continued EU membership. This necessitates a reassessment of Cameron’s renegotiation stance, focusing on free movement of people and other raised issues, and considering whether pro-Europeans should support such changes.
Free movement of people
Rules governing the free movement of people are found in both EU Treaties and secondary legislation. Treaty provisions establish the right of EU citizens to move and reside freely, coupled with protection against nationality-based discrimination. Specific provisions cover the free movement of workers, self-employed individuals, service providers and recipients, and, implicitly, students. Complementing this is secondary legislation, primarily the citizens’ Directive and the Regulation on social security coordination.
Changing the legislation is simpler than amending Treaties. Modifying the legislation would require a qualified majority vote in the Council, agreement from the European Parliament, and the Commission’s support for the proposed changes.
However, legislative changes are limited in scope. While adjustments to benefit access are possible, the fundamental right to free movement is enshrined in the Treaties. These hold precedence over national and secondary EU legislation, meaning changes that excessively restrict free movement rights or discriminate between EU citizens would be invalidated, as seen in the Pinna case where the EU Court of Justice struck down changes to social security rules.
The Court’s own jurisprudence could lead to some adjustments. Recently, it narrowed the interpretation of free movement rights for convicted criminals and is set to rule on EU citizens’ access to benefits. However, these interpretations cannot alter the fundamental principles of free movement.
Though the citizens’ Directive and Treaties permit restricting free movement on public policy, security, or health grounds, Court precedents and the Directive’s text clearly limit this to individual cases, excluding economic justifications.
Therefore, altering the core of free movement rights mandates a Treaty amendment, necessitating ratification by all member states. This would likely involve a protocol to the existing Treaties.
Such a protocol could simply empower derogation from free movement rules, leaving specifics for later agreement. However, this might not satisfy UK critics who doubt the actual implementation of limitations.
Alternatively, as Cameron suggested, it could include an “emergency brake” on the number of people. Comparable to existing Treaty safeguards in areas like criminal law and social security, this mechanism, though more accurately a safeguard clause, could address concerns.
Similar clauses already exist. The European Economic Area (EEA) treaty, extending the common market to Norway, Iceland, and Liechtenstein, provides a relevant example. This treaty allows for unilateral safeguards in the event of “serious economic, societal or environmental difficulties,” as long as they are proportionate, temporary, and implemented following consultation with other parties. To date, this clause hasn’t been used.
Another example is found in accession treaties with newer member states. These contain transitional clauses allowing the temporary suspension of free movement of workers for up to seven years after accession if a member state experiences disturbances in its labor market that threaten living standards or employment. While requiring Commission approval, this provision was utilized by Spain.
This latter limitation, specifically addressing the free movement of workers, offers a suitable framework for any new provisions. This raises questions about whether treaty renegotiations should encompass limitations beyond workers to include other individuals. For instance, the status of a person initially entering as a student who later seeks employment or the classification of family members of EU citizens who were not economically active upon entry but later seek employment needs clarification.
While the existing template doesn’t need to be followed verbatim, the notion of the Commission and/or Council overseeing derogation might be unpopular in the UK. Nevertheless, even without their approval, the Commission could challenge the use of such a clause, and its invocation could be contested in national courts.
Other member states might desire stricter rules for invoking this derogation, potentially referencing factors like increased movement, unemployment rates, or lower growth rates, possibly including a proportionality rule, as seen in the EEA provision.
More radical proposals, such as allowing member states to implement a points-based system or immigration quotas for EU citizens, would fundamentally undermine the principle of free movement and are unlikely to garner support from other member states. They might question the benefit of such an arrangement, where the UK essentially remains outside the framework of free movement, compared to a complete departure from the EU.
Other issues
David Cameron has also proposed changes to the concept of “ever closer union.” The June European Council conclusions contain suitable language on this matter that could be directly integrated into the Treaties. Similarly, the UK’s concerns regarding equal treatment of non-eurozone states could be addressed by revising the special Council voting rules or modifying the wording of clauses governing enhanced cooperation within the Treaties.
Broadly, any treaty amendments sought by the UK would necessitate a quid pro quo. For instance, invoking the free movement derogation could trigger mandatory contributions to unemployment or welfare systems of other member states. Similarly, protections for non-eurozone states might require treaty amendments that facilitate further integration among those states.
What should pro-Europeans do?
The instinctive reaction from pro-Europeans to any suggestion of altering free movement rules is to advocate for the status quo. This is understandable, as there are compelling economic reasons and inherent value in the principle of free movement.
However, dismissing widespread public concern over free movement is democratically untenable. Pro-Europeans should therefore endorse some degree of reform, whether through legislative amendments or a limited emergency brake mechanism. Outright rejection risks framing pro-Europeans as out-of-touch elitists by those truly opposed to free movement and the EU.
While some argue against engaging with the arguments of those like Nigel Farage due to the presence of prejudiced views within their base, this should not equate to rejecting any reform of free movement laws. On the contrary, it underscores the need for a proactive, pro-European approach to reform. Limited legislative changes or a safeguard clause for exceptional circumstances can be implemented while preserving the essence of free movement.
This approach enables pro-Europeans to advocate for the value of these rules while addressing public concerns. Conversely, rejecting any reform elevates the risk of losing free movement and EU membership entirely. Ultimately, public support is crucial for the continued existence of free movement and the UK’s place within the European Union.
Barnard & Peers: chapter 2, chapter 13