Steve Peers, Professor of Law, University of Essex
During the UK’s negotiations to leave the European Union, a key point of contention arose: the process for enacting an “emergency brake” to restrict EU citizens’ access to in-work benefits. Should a Member State have the authority to implement this measure independently, perhaps with a requirement to inform the Commission and Council? Or should it be required to submit a request, leaving the decision of authorization to the Commission and/or Council?
This analysis argues that no legal framework mandates that solely the Commission and/or Council can grant a Member State the power to activate the emergency brake. Therefore, deciding who holds this authority is a matter of political judgment.
Treaty rules
The Treaty lacks a universal rule regarding how Member States utilize safeguards and derogations. Limitations on free movement based on public policy, for example, are addressed solely in terms of decisions made by individual Member State governments. However, EU institutions retain the ability to legislate on these matters. Similarly, the authority to suspend EU law during wartime, imminent threats of war, or civil unrest lies with Member States. In this case, the Treaty only stipulates discussions with the Commission and potential special procedures within the Court of Justice. (For clarity, specific details of the cited legal provisions are outlined in the annex.)
Conversely, some Treaty Articles grant authorization for Member State actions to either the Commission, such as in cases of higher national standards following internal market harmonization, or the Council, which authorizes state aid rejected by the Commission or permits tax regulations restricting capital movement to non-EU countries.
The Treaty provisions most pertinent to social security and large-scale immigration grant final decision-making authority to Member States. Notably, if a Member State activates an “emergency brake” to halt EU decisions on social security for EU citizens exercising free movement rights, the European Council holds discussions. Still, the proposal can be ultimately rejected if all Member States do not reach a consensus. The Court of Justice of the European Union (CJEU) case law implicitly confirms that Member States may, without requiring an EU control procedure, restrict the free movement of EU citizens based on public health concerns (Bressol). Furthermore, Member States retain complete control over regulating the influx of non-EU citizens from third countries seeking work within the EU.
In certain instances, the CJEU has mandated a Community (EU) control procedure for Member States’ derogations. These cases, however, pertain to situations where the EU holds exclusive competence, and the Treaty outlines a control procedure. In Commission v UK, the Court cited the 1972 Act of Accession and the exclusive EU competence over fisheries conservation to justify requiring prior Commission approval for Member State actions when the Commission’s proposals to the Council remained unadopted. Subsequently, in the Bulk Oil judgment, the Court effectively limited the Commission v UK judgment to its specific circumstances.
In Donckerwolke, the Court determined that national measures impacting trade with non-EU countries required Commission approval. However, this ruling was based on the EU’s exclusive competence in this area and, specifically, on Article 115 EEC (since repealed), which detailed this process. The EU’s exclusive powers over these two issues differ significantly from the shared authority over the internal market.
Secondary law
Most relevant EU secondary legislation provisions tend to empower Member States to trigger derogations, often only requiring information and consultation with EU institutions. Notably, the EU citizens’ Directive gives Member States complete control in triggering exceptions to EU citizens’ access to benefits. The EU’s patients’ Directive (more on that Directive here) allows Member States to limit reimbursements for patients seeking treatment in other Member States, requiring only that they inform the Commission.
Similarly, legislation addressing large-scale movements of third-country nationals reserves power for Member States. For instance, the asylum procedures Directive permits Member States to extend the deadline for asylum application decisions in cases of a “large number” of applications without even needing to notify the EU. Additionally, Member States have sole discretion in deciding whether to deviate from border procedure regulations during a “large number” of applications at borders or transit zones.
Under the Directive on reception conditions for asylum-seekers, Member States can implement alternative regulations when normal accommodation provisions are “temporarily exhausted” without any control requirements. Similarly, the Returns Directive allows Member States to deviate from certain safeguards regarding immigration detention in cases of an “exceptionally large number” of irregular migrants, requiring only that they inform the Commission.
Finally, an example outside immigration, free movement, and social security demonstrates that Member States often hold sole discretion over derogations in other areas of EU law. The working time Directive outlines four derogation categories. The first three are entirely at the discretion of individual Member States. The fourth category, which outlines now-expired transitional rules for medical trainees, stipulated that Member States only needed a Commission opinion before extending the relevant transitional period.
Naturally, EU secondary law must align with the EU’s primary law as defined in the Treaties. Therefore, the lack of EU control procedures over derogations would be deemed invalid if it contradicted the Treaties. However, as previously discussed, the Treaties do not establish a universal rule regarding the EU political institutions’ oversight of Member State derogations from EU law. Specifically, concerning free movement and social security, the Treaties explicitly grant decision-making power on such measures to Member States. However, this does not preclude potential judicial control by national courts and the CJEU to assess the valid exercise of these national decisions (except for the “emergency brake” on social security decision-making).
Barnard & Peers: chapter 13
Photo credit: www.moroccoworldnews.com
Annex – Articles in Treaty and legislation referred to
Free movement exceptions: Articles 45(3), 52(1), 62 and 65(1) TFEU
Emergency wartime derogation: Article 348 TFEU
Higher national standards following internal market harmonisation: Article 114 TFEU
State aid authorisation: Article 108(2) TFEU
Tax rule restricting movement of capital to third countries: Article 65(4) TFEU
Social security and free movement of persons: Article 48 TFEU
Volumes of third-country nationals coming to work: Article 79(5) TFEU
Fisheries conservation ruling: Case 804/79 Commission v UK, referring to Article 102 of the 1972 Act of Accession (paras 17, 28 and 31 of the judgment)
Case 174/84 Bulk Oil: para 56
EU competences: Articles 3(1) and 4(1)(a) TFEU
EU citizens’ Directive (Directive 2004/38): Article 24
EU’s patients’ Directive (Directive 2011/24): Article 7(9) and (11)
Asylum procedures Directive (Directive 2013/32): Articles 31(3)(b) and 43(3)
Directive on reception conditions for asylum-seekers (Directive 2013/33): Article 18(9)(b)
Returns Directive (Directive 2008/115): Article 18
Working time Directive (Directive 2003/88): Article 17