Is there a right to be a member of a national parliament and the European Parliament simultaneously?

Steve Peers

It was announced last week that Geert Wilders, the head of the Dutch PVV and a newly elected Member of the European Parliament (MEP), would bring legal challenges to assert a right to be an MEP while also continuing to be a member of the Dutch national parliament. Is there such a right?

The starting point is Article 39 of the EU Charter ofFundamental Rights, which provides that every EU citizen ‘has the right to vote and stand as a candidate’ for elections to the European Parliament. If that right were unlimited, then Wilders would of course win his case (assuming, logically enough, that the right to ‘stand’ as a candidate entails a right to sit as an MEP, if elected, as its obvious corollary).

However, most rights in the Charter are not unlimited. Article 52 of the Charter sets out (among other things) the rules on limitations of rights. Article 52(2) specifies that the rights ‘based on’ the EU Treaties ‘shall be exercised under the conditions and within the limits’ of the Treaties. More generally, Article 52(1) specifies that any limits on Charter rights must be provided for by law, not deprive the right of its essence, have a public interest objective and be necessary and proportionate to meet that objective.

The Court of Justice of the European Union (CJEU) has not yet clarified the relationship between Article 52(1) and (2). In the Commentary on the Charter, I suggest that Article 52(2) is lex specialis, with the consequence that the limitations on rights based on the EU Treaties which are set out in EU legislation are prima facie valid, without having to consider the issue any further. As we will see in a moment, that interpretation would instantly decide the Wilders case.  

However, it’s arguable, in the absence of clarification from the CJEU, that those limitations also have to comply with the general rule on limitations on Charter rights set out in Article 52(1). So I will consider that possibility also.

The source of the ban on the ‘dual mandate’ (ie being an MEP and national MP simultaneously) is the 2002 Council Decision which amended the 1976 Decision on elections to the European Parliament (see the consolidated text of the Decision). Article 7(2) of that Decision sets out a rule of incompatibility between being an MEP and a member of a national parliament, as from the 2004 election to the EP. There is a transitional rule for the UK (since expired) and an indefinite special rule for Irish MEPs: they can retain a dual mandate until the next Irish election following their election to the EP.  

According to the explanations to the Charter, which the CJEU constantly relies on to interpret it, Article 52(2) means that rights derived from EU citizenship in particular (such as the Article 39 right) remain subject to the limits and conditions in the Union law in which they are based. So that is the end of Wilders’ argument.  

But what if such conditions also have to meet the conditions set out in Article 52(1)? First of all, the limitation on the dual mandate is obviously ‘prescribed by law’. It doesn’t destroy the essence of the right to stand as an MEP, since there is no requirement to give up a national seat before standing. Nor does it destroy the essence of the corollary right to serve as an MEP once elected, since the person concerned can always do so if he or she is willing to stand down as a national MP.

Does it serve a legitimate public interest? Surely, yes: despite all the derision heaped upon national parliamentarians and MEPs, both jobs are full-time and demanding, and cannot be done simultaneously. In light of that consideration, it’s hard to avoid the conclusion that the limitation is necessary and proportionate.

There is a possible issue of equality though (see Article 20 of the Charter). It is odd that Irish MEPs are subject to a special rule that allows them to hold a dual mandate, potentially for several years. Of course, the principle of equality could equally be satisfied by ruling that the Irish exception is invalid. At most, it would mean that Wilders could hold the dual mandate until the next Dutch elections, not indefinitely.

Admittedly, the Council Decision does not rule out holding other full-time jobs, besides national parliamentarian, EU official or member of a national government (Article 7(1)). Again, though, the principle of equality could equally apply so as to extend to a ban on holding such jobs as well.

What about other sources of law? Any right to hold a dual mandate that might arguably be conferred by the Dutch constitution is irrelevant, due to the supremacy of EU law. The CJEU established last year, in the Melloni judgment, that Article 53 of the Charter, although it refers to national constitutional rights, does not give them priority over EU law when EU law has fully harmonised an issue.  As for the ECHR (referred to in Article 52(3) of the Charter), it has not ruled on the dual mandate issue as regards national parliaments and the European Parliament.

Finally, it should be noted that the above conclusions would apply to any politician, whether I dislike their politics (as in Wilders’ case) or whether I fervently support them. 

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What are the Member States doing regarding sanctions on employers of irregularly staying third country nationals?

Elspeth Guild, Jean Monnet professor ad personam Radboud University, Nijmegen, Queen Mary University of London.

Background

In 2009 the EU adopted a directive which required the Member States (except Denmark, Ireland and the UK) to adopt legislation creating fines and criminal sanctions against employers who hire third country nationals who are irregularly staying in their Member State. As is the case for most immigration and asylum directives and regulations, the Commission was mandated to prepare a report by 20 July 2014 and every three years thereafter on the application of the directive. The Commission has now published its report in advance of the deadline on 22 May 2014. 

This directive was so popular among the Member States that after the end of the transposition date, the Commission had to commence 20infringement proceedings against Member States which had done nothing to transpose it. All of them have now been withdrawn as the Member States adopted national legislation.

The issue of employer inspections

The communication contains no information how many procedures have been taken against delinquent employers. It is unclear whether the Commission actually has access to this information but it did not include it nor indicate whether the Member States provided it. Under the directive, the Member States are required to provide annually information on the number of inspections which they have carried out to check that employers are compliant. The Commission has included a table on the number of such inspections carried out in 2012. This varies from 79 in Estonia to 243,847 in Italy. Of the other four big Member States, Germany chocked up 122,577, France 1,331 and Spain 53,671. Poland carried out 2,776.

These figures are very difficult to interpret not least as there is no clarity whether Member States with high numbers such as Italy, have included the obligation to check on irregular migrants into the job of general labour inspectors (which seems likely from the figures). Other Member States have probably not done this such as France where the number is very low. But this is supposition rather than knowledge.

There are of course, enormous issues which arise depending on which system a Member State uses. If labour inspectors are provided with general powers to check for irregularly staying migrants, they become sub-contracted immigration officers and, the argument goes, they are distracted from their main work of protecting labour standards. If the purpose of labour inspections is to ensure proper application of labour standards, it may not be wise to go down this route as it means that employers are more likely to hide any workers who have a dodgy immigration status from labour inspectors thus defeating the purpose of the inspection as regards the universality of the protection.

On the other hand, if a separate body must carry out the immigration status related labour inspections, that body must be identified (eg immigration officers?) given the powers to carry out inspections and set loose. As the UK system, which is based on this later approach shows, employers are not particularly delighted at having immigration related inspections. Also, while health and safety inspections include issues around migration, in the UK employers also have spot compliance inspections from immigration officers under the points-based system. UK Visas and Immigration (the successor of the UK Borders Authority) carry out these spot checks on employers.

How many irregularly staying third country nationals are working in the EU?

Returning then to the Communication, it is worth noting that it starts with the (relatively) new figures of the drop in third country nationals detected irregularly present in the EU between 2008 and 2013 (down 40% - the 2013 figure is 386,230). These figures originally appeared in the Commission’s report on the Returns Directive. The document, however points in two directions, on the one hand if the number of detected irregular migrants is dropping so fast one might have to question what the point of the directive is so the Communication states “the majority of irregular migrants remain undetected”. There is no evidence produced for this, though one can see the Commission’s interest in stating it. If the problem is merely that the Member State authorities have stopped detecting irregularly staying third country nationals then the blame falls on them and there could be huge numbers of contraventions of the directive. But if there has not really been much change in the intensity of the work of state authorities in the detection of irregular migrants, then the problem of irregular working is diminishing towards a vanishing point which is coming fast.

Once again, if the UK is any measure to go by, in 2008/9 the authorities issued 1,722 civil penalties to employers worth a total of GBP 16,715,000 but in 2012/3 it only issued 1,270 penalties worth GBP 10,843,750. This means that over the period, there has been about a 36% drop in the number of fines and a 35% drop in their value. While this is not as high as the 40% drop in detected irregular migrants in the EU as a whole, it is not far off. While the Commission’s document states that Austria, Cyprus and Slovakia have taken up the option of publishing lists of employers who committed the offence of employing an irregularly staying third country national, I have not been able to find and information or statistics on the respective government websites.

Why are irregularly staying third country nationals working in the EU?

According to the Commission people work to improve their lives and to meet demand from employers. There is nothing surprising here. However, as regards those who are irregularly staying in the EU, the Commission considers that they seek out employers “who are willing to take advantage of workers ready to undertake low-skilled, low-paid jobs in labour-intensive sectors such as construction, agriculture, cleaning and hotels/catering”. The Directive itself states that undocumented work is a pull factor in itself for people to stay irregularly.

All of this smells of arm-chair sociology based on supposition and prejudice rather than any actual empirical work. There is empirical work out there if anyone in the Commission is actually interested and much of it was produce in Commission funded research projects, but it does not necessarily support the Commission’s statements. (See, for instance, Vasta, E. (2011). Immigrants and the paper market: borrowing, renting and buying identities. Ethnic and racial studies, 34(2), 187-206).

In any event the Commission repeats the standard argument about the damage undocumented work causes: loss of tax revenues and social contributions (which may or may not be the case depending on whether the person is working under a registered identity or not), replacing workers or causing the “non-hiring” of workers through legal channels (strenuously denied by the Commission when it comes to EU national workers moving to find better jobs) and acceptance of hazardous working conditions.

These statements of ‘fact’ are unhelpful to the authority of the Communication. The Commission would be wise to refrain from such rather speculative asides which do nothing for its reputation as a source of reliable information.

How have the Member States implemented the sanctions against employers?

There are two types of sanctions which the directive obliges the Member States to create: financial and criminal. Regarding financial sanctions, the more irregularly staying third country nationals an employer hires, the greater the fine. Most Member States already had financial sanctions by the transposition date, only Belgium, Bulgaria, Finland and Latvia did not but now do. Among the sanctions which the Member States apply is the obligation to pay for the return of the third country national (somewhere outside the EU) though in Sweden and Italy this is simply included in the penalty. No information is provided about how the Member States calculate the cost of return or to where. Is it on the basis of actual costs incurred or some other basis? Further are employers required to pay the cost whether or not the return actually happens? Again there is no information.

The financial sanctions vary greatly in amount. The maximum fine for a natural person runs from 854 euros in Cyprus to 100,000 euros in Spain.  Alternatively where it is for the judge to set the fine, the maximum level varies from 500 euros in Latvia to 500,000 euros in Germany. The Commission queries whether these rather enormous variations constitute dissuasive and proportional sanctions as required by the directive.

It may be recalled that this directive was one of the first adopted after the CJEU held that the EU can use criminal sanctions to achieve EU objectives which are outside the provisions on cooperation in the field of criminal justice. As regards criminal sanctions, here again the Commission finds that there are very wide variations. In a minority of Member States illegal employment is a criminal offence to which aggravating factors may attach such as persistent and repeated infringements.

In the rest of the Member States a copy and paste approach to the obligation (in Article 9(1) of the Directive) to create criminal sanctions was adopted. Depending on the Member State the penalty can be between three months and five years imprisonment. For businesses the penalties for criminal sanctions include loss of public benefits and/or public contracts for five years, claw back of subsidies and closure. But there is a great variety among the Member States as to what they have transposed and what they have not. There is also a provision on liability for a chain of employers (Articles 2(c), 8, 9(2) and 11 of the Directive). The objective is to make sub-contractors also responsible for the offences of employing third country nationals irregularly staying in the Union, but this provision seems to have foxed a few Member States which have not transposed it. 

Protecting the third country national

The civil society sweetener in the directive has been its provisions which oblige employers to pay their third country national workers even if the state is expelling them or has already done so. It is interesting to note that few Member States have transposed these provisions. For instance, only Bulgaria, Cyprus, Greece and Slovenia have included in their laws the right of third country nationals who are (or were) irregularly staying and working to claim outstanding remuneration from their employer. The others rely on vague references to their civil law. Of course for the UK it would be a big step forward if third country nationals with an irregular immigration status could rely even on the labour contract to receive back pay but the UK does not participate in the directive.

More Member States have implemented the provisions requiring effective mechanisms for such third country nationals to lodge complaints against employers and to be represented by third parties (ie NGOs, trade unions etc). Only three Member States (Belgium, Greece and France) have put in place mechanisms so that these third country nationals can receive any payments due to them after they have left or been expelled. In the same vein, only ten Member States have introduced measures to comply with the duty to grant limited duration permits to third country nationals which are linked with the directive’s criminal proceedings.

Detection and enforcement

According to the Commission most Member States now require employers to keep accurate records of the immigration status of their employees. It is now pleased with the Member States’ compliance with their duty to provide it with information about inspections as they are required to do under Article 14 of the Directive (see above more generally). Further the Commission insists that Member States identify sectors most at risk in order to increase the effectiveness of the inspections. Offenders in this regard are the Czech Republic, Estonia, Lithuania, Malta and Romania which have not identified sectors according to the directive’s requirements. The others which have so identified sectors focus on: constructions, agriculture, horticulture, housework/cleaning, catering and hospitality services.

One is reminded of the joke about the rather drunk man who loses his keys on his way home one evening after dark. He retraces his steps and begins searching for his keys very carefully around a street lamp. A friend asks him why he thinks he lost his keys at that spot. The man answers that he has no reason to think that the keys are more likely to be under the lamppost than elsewhere on his route, but that it is much easier to look for them with the advantage of the light.

As the sectors identified by the member States have a fairly high staff turn over, are often short term contract based and in some cases are seasonal, the disruption to businesses generally may perhaps be less than in other sectors which are substantially globalized such as banking.

Conclusions

This is an interesting report notwithstanding its shortcomings. It is vital that the Commission continues to prepare and publish all of its reports on the functioning of the border, immigration and asylum measures so that we have some idea of what the outcomes are of the legislation adopted.

From the Communication, it is clear that the Member States are more interested in the coercive side of the directive than the provisions designed to help third country nationals claim and actually get their back pay from their employers. This is a pity as it undermines some of the key justifications for an EU measure in the field – not least that it was necessary to ensure fair play for third country nationals who are being or have been exploited by their employers. If there is somewhere for the Commission to increase pressure on the Member States as regards this directive it is in this respect.

Barnard & Peers: chapter 25, chapter 26

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Double Jeopardy and EU Law: Court clarifications and Commission reports

Steve Peers

It’s just like buses. You wait almost four years for a CJEU judgment on the Schengen double jeopardy rules, and then two judgments come along almost at once. What’s more, the Commission has also just released two reports on the application of related EU legislation. The judgments have provided a number of useful clarifications of the rules, which the reports paint the familiar disappointing story of tardy implementation of Member States’ legal obligations.

Background

Double jeopardy (or ne bis in idem) in criminal cases, ie trying the same person for the same crime more than once, is banned by many national constitutions and by the Seventh Protocol to the European Convention on Human Rights (although a few Member States have not ratified this Protocol).  However, these rules generally only apply the rule to trials within the same State.

EU law goes further than this, by establishing a cross-border rule. Article 54 of the Schengen Convention, which applies in all Member States except Ireland, as well as the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein), states that ‘A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.’

Article 55 of the Convention allows for a limited number of exceptions to this rule, and Article 56 provides that if there is a second prosecution, any period of deprivation of liberty arising from the same acts in the first Member State must be deducted from any sentence imposed in the second Member State. Article 57 sets up a process of consultation between Member States to implement the rules, while Article 58 allows Member States to apply more generous rules between themselves.

Despite the current limits on the CJEU’s jurisdiction over EU criminal law measures adopted before the Treaty of Lisbon, there have been a considerable number of judgments on these rules over the years, since about two-thirds of Member States have opted into the Court’s jurisdiction. We might expect more cases being sent to the CJEU on these issues after December 1 this year, when those limits will be removed. Cases could even be sent from the UK courts, since the UK intends to opt back in to (among other things) these provisions of the Schengen Convention when it opts out of a lot of pre-Lisbon EU criminal law measures on that date.

EU law does not generally regulate the application of the double jeopardy principle within the same Member State, although it might be relevant where the proceedings concern a substantive criminal law issue linked to EU law (see, for instance, the Fransson judgment).

While national, international and EU law on substantive criminal law often provides for extraterritorial jurisdiction, an investigation into the same person for the same acts in multiple Member States is in prlnciple a waste of time and money, since the person concerned cannot usually be tried twice in both Member States. So back in 2009, the EU adopted a Framework Decision on conflicts of jurisdiction, setting up a process of information and consultation between national authorities if there was an indication that there multiple proceedings concerning the same acts committed by the same person.

On the other hand, if the same person has committed differentcrimes, national criminal law systems usually impose some form of added penalty, in the form (for instance) of harsher bail conditions or a longer sentence in the event of a conviction. It follows from the cross-border nature of EU Justice and Home Affairs cooperation that this principle should apply even if a prior conviction was handed down by another Member State. So another Framework Decision, adopted in 2008, sets out the details of how this rule applies.

The judgments

The first recent judgment, in Spasic, raised two points. First of all, is the rule limiting the double jeopardy rule to cases where the penalty (if there is one) has been enforced, can no longer be enforced or is being enforced (the ‘execution condition’), valid in light of the EU Charter of Rights? Secondly, how does that condition apply where a criminal conviction has resulted in both a custodial penalty and a fine, where the fine has been paid but the custodial penalty has not been served?

These questions were relevant in this case because Mr. Spasic had paid a fine of 800 euros imposed as a sentence by an Italian court for passing counterfeit currency, but had not served the one-year sentence which was imposed for the same acts. So could he still be prosecuted in Germany for them, given that the double jeopardy right in Article 50 of the Charter does not mention any execution condition?

In the Court’s view, the execution condition was valid in light of Article 52(1) of the Charter, which sets out the rules for limiting Charter rights. Limitations must be provided for by law, respect the essence of the rights and freedoms and be necessary and proportionate in pursuit of an objective of general interest.

Here, the limitation was clearly provided for by (EU) law. It respected the essence of the right, since it only limited the double jeopardy rule where the person concerned had escaped punishment. It aimed at securing objectives of general interest, since the Treaty rules on JHA objectives implicitly aimed to avoid situations of impunity. 

As for proportionality, while there were other relevant EU measures, the Framework Decision on conflicts of jurisdiction did not ensure that the person would be punished, and the Framework Decision on transfer of prisoners was subject to the conditions of consent of the person concerned and of the sentencing State. However, the CJEU accepted that it would not be proportionate to bring a second set of proceedings in Germany, if Italy wanted to enforce its sentence (Mr. Spasic had not served that sentence simply because he was imprisoned in Austria for different offences at the time).

On the second point, the Court ruled that custodial and non-custodial penalties were severable for the purpose of applying the execution condition. So paying an 800-euro fine did not equate to partial satisfaction of a one-year jail term, and so did not exempt the person concerned from being prosecuted in a second Member State.

The second case, M, concerned allegations of child abuse against an Italian man living in Belgium. The Belgian authorities investigated these, but a pre-trial chamber gave a ‘non-lieu’ ruling, meaning that the case could not proceed to trial due to insufficient evidence. This ruling was eventually upheld on appeal. In the meantime, the Italian courts had begun their own investigation, and wanted to know if the Belgian ruling was a ‘final judgment’ which prevented them from proceeding to trial.

In the Court’s view, it was. A final judgment could include a pre-trial measure (like the plea bargain accepted by prosecutors in the earlier Gozutok and Brugge case), as long as it finally determined the case on the merits according to national law (applying the test in Turansky). That was the case here, once the appeal was decided. Referring to the Zolukhtunin judgment of the European Court of Human Rights, the CJEU ruled that a possibility of an extraordinary remedy did not preclude a trial from being final. Nor did the possibility, referred to in the ECHR Protocol and Belgian law, of bringing a fresh prosecution, as a derogation from the double jeopardy rule, in the event of new or newly discovered evidence. The Court confirmed that in that case, only the first Member State, not the second, could bring a fresh prosecution.

The reports

For the Framework Decision on conflicts of jurisdiction, the Commission report notes first of all that only about half of the Member States have implemented it (the deadline was June 2012). This makes sense for the UK, since it does not seek to opt back in to this measure. It should be noted that infringement proceedings against Member States will also be possible when the 1 December deadline soon expires.

Overall, while the Commission refers to this measure as a ‘first step’, it states that it cannot draw ‘general conclusions’ about the quality of implementation, because few Member States have practical experience in its implementation. But it does note that some Member States have not applied the key rules on the information to be transferred between authorities. Most Member States permit parallel investigations to take place, even after the consultation process, although they are a waste of time and money. Only Croatia has an express rule (corresponding to the M judgment) that a final judgment in one Member State must terminate a pending prosecution in another.

As for the report on the Framework Decision on the consequences of convictions, six Member States have still not applied it (the deadline was back in 2010). This time, the UK, which seeks to opt back in to this measure, has applied it.

The Commission is rightly concerned that Member States limit the mutual recognition obligation to cases of a final conviction, for otherwise they would be infringing the presumption of innocence. Overall, the Commission expresses dissatisfaction mainly with a group of nine Member States which have claimed to implement the Framework Decision without giving further detail. Obviously it would be wise for those Member States to provide that further detail over the next six months, before infringement actions can be launched. The Commission does not assess the practical application of the European Criminal Records Information system (ECRIS), established by separate EU legislation, which is the main way of ensuring that the relevant information is transferred between Member States in the first place.

Comments

The Court’s ruling that the ‘execution condition’ in the Schengen rules was valid is convincing in light of the great public interest in preventing impunity for those convicted of criminal offences. For the same reasons the Court was right to reject the argument that payment of an 800-euro fine was equivalent to serving a year in jail. That would have amounted to de facto impunity.

Crucially, the Court rightly applied the principle of proportionality to rule that on the facts of the case, a second prosecution could nonetheless not take place if it was still possible in practice to serve the initial sentence instead. This rule ensures that the person concerned does not end up serving two separate sentences for the same crime (recalling that any time served in one Member State would have to be deducted from the time served in another one), and could prevent the cost and waste of time of a second prosecution if it proves to be unnecessary after all.

It should be noted that the Court did not rule here on whether the national derogations permitted by Article 55 of the Schengen Convention are valid. Unlike the execution condition, these rules do not aim to avoid impunity, but rather allow a second prosecution to be brought where: the act took place on a Member State’s territory; the act concerned national security or ‘equally essential’ interests; or the person concerned was an official of the State concerned. In all these cases, justice would best be served by giving the Member State concerned the first opportunity to bring a prosecution, and the Framework Decision on conflicts of jurisdiction should facilitate that. But it may be questioned whether those interests are strong enough to justify the power to bring a second prosecution (although again it must be recognised that any time served in the first Member State must be deducted from any sentence in the second).  

As for the M case, it answers a number of important issues. It is now clear that the double jeopardy rule is triggered only on disposition of a final appeal in the first Member State, and (implicitly) that the rule not only prevents the startof proceedings in a second Member State, but also terminates proceedings that are already underway. Again, the relevance of the Framework Decision on conflicts of jurisdiction becomes clear: whichever of the Member States concerned lost the ‘race’ to a final judgment (stereotypically, this was Italy) would end up having wasted its time and money.

The clarification of what happens in the event of new evidence is also important. It should be noted that, as the Advocate-General pointed out, if new evidence surfaces in Italy (or any other Member State), EU rules can facilitate its transfer to Belgium for the authorities to consider it. Also, the Court makes a general statement that only a ruling on the ‘merits’ counts as a final judgment. This sits oddly with its judgment in Gasparini, where it ruled that a proceeding which was time-barred in one Member State counted as a final judgment, so that case must be seen now as an anomaly.

More broadly, the two new judgments go a long way to reconcile the Schengen double jeopardy rules with human rights law. Oddly, the Court had never before mentioned Article 50 of the Charter in the context of the Schengen rules, until the Spasic case forced it to. Afterward, in the M case, the Court now refers to interpreting the Schengen rules in light of the Charter. As for the ECHR, the CJEU positively dismissed its relevance back in the Van Esbroeck judgment, but since the Strasbourg Court aligned itself with the CJEU's interpretation of the principle in Zolukhtunin, the CJEU is now happy to rely upon the other Court's rulings as a source of interpretation.   

What about the EU legislation? The Court itself, in theSpasic case, said in effect that the Framework Decision on conflicts of jurisdiction was too weak to affect its interpretation of the double jeopardy rules, since it did not ensure that the person concerned would be punished (although actually, that isn’t its main purpose). The M case shows, as noted above, how an early decision on conflicts of jurisdiction is necessary to avoid wasting time and money, and to reduce complications for suspects, particularly given that (in the view of the Belgian courts) there was insufficient evidence to prosecute in that case.

Overall, there seems to be plenty of reason to fear that, as I predicted some time ago, the Framework Decision on conflicts of jurisdiction has done nothing much to avoid multiple prosecutions, in particular because it lacks an obligation in principle to centralise prosecutions, never mind a list of criteria to apply to determine where the prosecution should take place. It has obviously had no effect in the half of Member States which have not bothered to transpose it at all. Since the Commission regards this measure as a ‘first step’, it should have considered measures to amend it to this end at the earliest opportunity.

As for the Framework Decision on the consequences of prior convictions, the Commission assesses its implementation on paper, but not its implementation on the ground. The real question is how it works in conjunction with the ECRIS system, and in particular whether there are any problems as regards the classification of convictions rendered in other Member States.

These reports are released as justice ministries begin their last lazy summer before the prospect of infringement proceedings to make them to live up to their legal obligations (as we have seen previously on this blog, these failures extend also to legislation on prisoners and probation, and to hate crime lawtoo). Time will soon tell whether the Commission will step up to the plate and assume its role as the guardian of EU law in this field.

Barnard & Peers: chapter 9, chapter 25

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The Blue Card Directive on highly-skilled workers: why isn’t it working, and how can it be fixed?

Steve Peers

Back in 2009, the EU adopted the so-called ‘Blue Card’ Directive on highly-skilled third-country nationals.  This Directive is a key part of the Commission’s policy plan on legal migration, which subsequently also led to the adoption of the single permit Directive, the seasonal workers Directive and the intra-corporate transferees Directive.

According to its preamble, the Blue Card Directive aims to ‘attract and retain’ highly-skilled workers from the rest of the world to the EU. This objective is obviously an essential aspect of the EU’s labour migration policy. However, the Commission’s recent report on the Directive indicates that it has made little impact at achieving its intended objectives. So it is necessary to consider how the Directive ought to be amended to achieve them.  

Implementation of the Directive

The Directive had to be applied by 19 June 2011, and all Member States bound by the Directive (the UK, Ireland and Denmark opted out) ultimately implemented it (twenty Member States applied it late). So the question is now whether they have implemented it correctly, and what its impact has been.

In practical terms, its impact has been limited, with only 3,664 Blue Cards issued in 2012, and 15,261 issued in 2013. Most have been issued by Germany and Luxembourg, and the main countries of origin are India, China, Russia, the USA and Ukraine.

A key feature of the Directive is that it co-exists with national schemes for attracting highly-skilled migrants, and most Member States have such schemes. In most Member States, these national schemes attract more migrants than the Blue Card system, although there are exceptions (such as Germany, Luxembourg and Romania) where the Blue Card is more attractive than the national system.

Overall, national systems attracted nearly 20,000 applicants in 2012, over five times the number of Blue Cards issued in that year. However, as seen above, the number of Blue Cards issued in 2013 increased significantly; but there are no statistics on national schemes available for that year to indicate whether a significant number of applicants were changing from national schemes to the Blue Card system.

The number of Blue Card holders can be affected in several ways. First of all, Member States have an option to set a quota for the number of admissions, and eight Member States have exercised it. Secondly, in order to avoid ‘brain drain’, Member States can enter into treaties with third states or opt to reject applications in national law on these grounds. No Member States have taken up the former option, and six have taken up the latter one, although none have actually rejected an application on these grounds. Given the low number of Blue Cards issued, the Commission is therefore surely right to conclude that for now, there is no indication that the Directive has led to a brain drain.

Thirdly, only two Member States have set higher salary thresholds than the usual rule (1.5 times the average salary) set in the Directive. Fourthly, most Member States apply some kind of labour market test before issuing a Blue Card. Fifth, while the Directive implicitly allows for renewal of Blue Cards, one Member State (Sweden) has set an overall time limit of four years for Blue Card holders, even though there is no explicit rule in the Directive on this point (as compared to the Directives on seasonal workers and intra-corporate transferees).

Next, fifteen Member States have implemented the option to withdraw the Blue Card if the holder needs social assistance, and two Member States applied a pre-existing national rule requiring applicants to apply from outside the country of origin. About half the Member States require a 90-day wait for a decision on the application, and just under half set shorter deadlines. Nine Member States do not grant equal treatment in employment after a two-year waiting period, and most require authorisation in the event of a change in employer within that period. A number of Member States do not grant equal treatment in education, and about half of the Member States limit the application of a rule permitting longer absences from EU territory as regards acquiring long-term resident status.

There are also options for Member States wishing to apply more favourable rules. Twelve Member States have opted to treat experience as equivalent to qualifications. Nine Member States have set a lower salary threshold (1.2 times the average salary) for professions in shortage occupations. Most Member States allow applicants to apply for a Blue Card not just if they are legally resident, but also if they are legally present. Several Member States have more favourable standards as regards equal treatment.

Overall, the Commission concludes that it is too early to assess the actual impact of the Directive in terms of attracting highly-skilled applicants. It is concerned about ‘flaws in the transposition, the low level of coherence, [and] the limited set of rights and barriers to intra-EU mobility’. To that end, it issues veiled threats about possible infringement proceedings, but it does not intend to propose amendments to the legislation for now.  

Comments

What is the right immigration policy to attract highly-skilled migrants? In my assessment of this Directive in the Commentary on EU Immigration and Asylum Law, I examined the evidence in the Commission’s original impact assessment for this Directive, which suggests that the EU is comparatively weak at attracting highly-skilled migrants, in part due to its immigration regime. The main features of national immigration rules which attracted migrants were routes to permanent residence, geographical mobility, and the publicity effect of the schemes. Academic analysis also suggests that liberal rules on family reunion and job mobility are significant.

However, the main elements of the Blue Card proposal which aimed to attract highly-skilled migrants were dropped or watered down: a short decision-making deadline; a derogation from the salary threshold for younger workers; and the rules on in-country applications, job mobility and validity of permits.

The evidence as regards implementation of the Directive suggests that on most of these issues (except for in-country applications), most Member States apply the options in the Blue Card Directive in such a way as to deter applications. Moreover, the mere existence of competing national schemes dilutes the publicity effect of the Blue Card system.

Due to late implementation of the Directive and the absence of national statistics for 2013, it is too early to tell whether the use of national schemes for admission of the highly-skilled has actually declined following the implementation of the Directive. However, it is clear that the numbers admitted under the Blue Card system that year were less than the numbers admitted under national systems the year before. So it is clear that the Blue Card system has not by itself, at least initially, increased the total numbers of highly-skilled migrants entering the EU.

Interestingly, as discussed in a previous blog post, one of the candidates for Commission President, Jean-Claude Juncker, has specifically promised to re-examine this Directive, with a view to addressing demographic imbalances, providing a safe route to Europe and increasing the EU’s attractiveness to highly-skilled migrants.

What is the best route forward to this end? To increase the publicity effect of the scheme, it would be advisable to curtail or eliminate competing national schemes. To increase its attractiveness, it would be best to provide for: in-country applications for everyone legally resident or present in all Member States; shorter decision-making deadlines; a derogation from the salary threshold for younger workers; stronger rules on equal treatment as regards access to education and employment; a longer validity of initial permits; and flexibility to switch into self-employment, particularly if the migrant wants to establish a job-creating business. 

Member States would still be able to address social and economic concerns about migration by their power to set quotas on labour migration (which is guaranteed by the Treaties) and to require a labour market test before issuing a Blue Card; and they still could use the options available in the Directive, if necessary, to prevent a brain drain from developing countries.

Whoever ends up in charge of the European Commission this autumn should move forward at an early stage to relaunch the EU’s flagship labour migration policy.   

Barnard & Peers: chapter 26

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Only Nixon could go to China: Could Juncker be a reformist Commission President?

 

Steve Peers

Just as all observers of British politics know that ‘a week is a long time in politics’, their American counterparts know that ‘only Nixon could go to China’. The basic idea behind the latter catchphrase is that only a politician with a firmly established reputation could convince his or her supporters to back a significant change of course. In Nixon’s case, only a firm anti-Communist could convince American conservatives that a rapprochement with Communist China was a good idea.  

Could this principle be relevant to the European Union? The most recent elections for the European Parliament (EP) resulted in an increased vote for anti-EU parties in a number of Member States. As a result, it has been argued by David Cameron and others that Jean-Claude Juncker, who is the preferred candidate to be the next President of the European Commission of the political party which won the most seats in the EP (the ‘European People’s Party’ or EPP), should not be the next President, because he is not reformist enough as he is too much of an ‘old hand’ in EU politics. But it is arguable that in fact, a policy of EU reform could only be carried out by a candidate with a good understanding of how the existing system works, and how to use it.

Secondly, it has been argued in recent days that the very idea of selecting a Commission President based on the nomination of the party which wins the largest number of seats in the EP is wrong in principle – or conversely that it is undemocratic and unprincipled. But the better view is that neither of these views is correct. Rather, the Treaty drafters created a system of duallegitimacy for the selection of the President, albeit one which provides for a greater role for the European Parliament than before.

These two arguments are developed below (in reverse order). But first, a little background for those new to the issue (given that the press has ignored it until recently).

Background

Traditionally, the Commission President was chosen by the heads of State and government of EU Member States unanimously. Over time, the national veto was removed and so the European Council (which consists of those heads of state and government) votes by a qualified majority on his issue. Also over time, the European Parliament was given the power to approve the nominee for President, although it has never rejected a nominee in practice.

The Treaty of Lisbon kept this underlying procedure intact, but refers to it differently. Now Article 17 TEU states that the Parliament ‘elects’ the Commission President. But the person which the EP votes is still nominated by the European Council, although the Treaty now also states that the latter body shall ‘take into account’ the results of the EP elections.

Following the entry into force of the Treaty of Lisbon, the majority of EU political parties (the EPP, the Socialists, the Greens, the Left party and the Liberals) decided to nominate their preferred candidate for Commission President, on the assumption that the person nominated by the largest party ought to become the President of the Commission following the elections. The persons nominated by the parties have become known as ‘Spitzenkandidaten’. It was never clear, however, whether the European Council would accept this process.

The procedure for selecting the Commission President

In a previous post on this blog, written before the elections, I argued that despite some cogent arguments against the idea of the Spitzenkandidaten, in principle the idea should be supported as a move towards greater democratisation of the EU.

Let’s revisit the argument in light of the post-election furore, in which there are competing contentions (as mentioned above) that only a predominant role for the European Council, or for the European Parliament, would be democratic. Neither of these views is convincing.

First of all, the legal arguments. The Treaty clearly gives a role to the European Council, not only the European Parliament, as regards the process leading to the election of a Commission President. If the drafters of the Treaty of Lisbon had really wanted to remove the role of the European Council entirely, they could and would have done so. But they retained the role of that body in selecting the nominee for President.

On the other hand, the Treaty drafters not only retained the role of the European Parliament, but enhanced it, adding references to its role ‘electing’ the President and the requirement for the European Council to take the election results into account. If the Treaty drafters had not wanted to enhance the role of the EP, they would not have made these amendments. The best view is therefore that, as before, both institutions play a significant role in the appointment of the Commission President – but the EP, rather than the European Council, plays the lead role in that process.

Secondly, the broader political arguments. Asserting that either the EP or the European Council should be regarded as the sole or main source of democracy in the EU is risible. They both have democratic legitimacy – as expressly recognised by Article 10(2) TEU, which refers equally to the direct representation of citizens in the European Parliament and their indirect representation, via national parliaments and governments, in the European Council (and the Council, made up of national ministers).

This dual legitimacy is reflected throughout the EU legal order, in the form of the ordinary legislative procedure, the annual budget process, the European Parliament’s power of consent over a number of Council acts (for instance, most treaties to be concluded by the Council), and the power of either the EP or the Council to control delegated acts to be adopted by the Commission. In some cases (for instance, tax legislation), the Council has greater power than the EP, but sometimes the reverse is true (for instance, only the EP can force the resignation of the entire Commission; this is clearly consistent with an increasing role for the EP in appointing it). It logically follows that only a Commission President who commands broad support from both the European Parliament and the Member States can do the job effectively.

But what does all this mean in practice? It means that the increased role of the EP in the election of the Commission President ought to be respected. So the European Council ought to consider, first and foremost, the name of whichever of the Spitzenkandidaten could possibly command a majority of Members of the European Parliament (MEPs). The first such name is Juncker, given that his party got the biggest number of seats and a large majority of EP parties have already supported the idea that he try to obtain a majority in the EP first.

However, as the EU system currently stands, the European Council should not be expected to approve this name without further ado, but should retain the right to ask the candidate to make specific commitments in order to satisfy the broadest possible majority of Member States that he or she should be appointed.

In particular, in light of the increased vote for anti-European parties, it is more than reasonable to expect the next Commission President to commit himself or herself to significant reform of the EU. The question is therefore whether Juncker, described by some as a federalist supporting greater European integration, is the right person to carry out that reform.

Can Juncker be a reformist?

The starting place for assessing whether Juncker can be a ‘reformist’ Commission President is his own list of five priorities. These include a commitment to discuss a possible renegotiation of UK membership of the EU, referring expressly to David Cameron’s own list of demands (which were discussed in an earlier blog post). At the same time, another Juncker priority is a bigger role for the EU, in relation to monetary union – but as regards the Eurozone Member States only, specifically exempting the UK.

Another Juncker priority is the completion of negotiations (already underway) for a free trade deal between the EU and the United States. This prospect is increasingly controversial (at least in the EU), although it is hard to judge its merits at present without having any idea what the final deal will consist of. However, the idea of such a deal appears to have broad support across the UK’s political spectrum. If it is agreed, it will confound the argument of those who say that the UK needs to leave the EU in order to increase its trade with non-EU countries. But if it is not agreed, then those arguments will be confirmed, at least in part (the EU has negotiated, and is negotiating, free trade deals with many other countries).

Admittedly, Juncker’s list of priorities places qualifications on his support for an EU/US free trade deal, in particular as regards food safety and data protection laws. But reservations like these are shared in a number of national capitals and parliaments and among a number of MEPs. They must be addressed if any trade agreement is to have any chance of being ratified. A more evangelical and uncritical supporter of an EU/US trade agreement would perhaps not be able to persuade as many governments or parliamentarians to support the final deal. In particular, the European Parliament might now contain more MEPs who oppose a potential deal, but Juncker, as the first ever Spitzenkandidate to take office, might be best placed to convince them to support it.

Juncker’s other two priorities concern growth-related policies such as the digital single market, and an energy union for the EU. Both these ideas have broad support across the EU and are not specifically or necessarily federalist. Indeed, the development of the EU’s single market has always been at the forefront of the reasons for the Conservative party’s support of the EU.

So Juncker’s priorities are not as federalist as has been suggested, and already include some elements of reform. Certainly, more reform is needed: the next Commission should ensure that the EU is more transparent, devolves more power to Member States where there is a good case for this, and addresses other public concerns.

Therefore, the European Council should request specific commitments from Juncker on these sorts of issues. But it should not be forgotten that the Commission President will not be the only beast in the EU’s political jungle. Any proposed legislation will still have to be agreed in the EP and the Council. More broadly, Member States set the broad political direction of the EU when their leaders meet in the European Council, and have full power to appoint the President of that body (Herman van Rompuy cannot be reappointed to that job after 1 November 2014).

And political innovations are always possible. For instance, the European Council could set up a high-level body, including (for instance) Tony Blair and Nicolas Sarkozy, to report back in the near future with a list of specific recommendations on reform of the EU. Juncker could be asked to commit to a strong role for a (British?) Vice-President of the Commission in charge of the reform process. More specifically, it might be useful for the European Council and the EP to agree a set of common rules, in the form of a joint statement or inter-institutional agreement, as regards their respective roles in the process for selecting the Commission President.

For an EU reform policy to work, a Commission President with stronger links to the European Parliament might have a better chance of seeing policies supported in that institution, and an ‘old hand’ at EU politics will know more about how to get things done in practice than a newcomer. Juncker is the only candidate who has both strong links to the EP and intergovernmental experience. The current controversy over his potential appointment could be resolved if his critics could acknowledge that indeed, only Nixon could have gone to China.

 

Barnard & Peers: chapter 3

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Who has jurisidiction to regulate satellite broadcasters?

Professor Lorna Woods

The current regulatory framework for electronic content is broadly divided into two: content and infrastructure.  This bifurcated design, in theory, allows platforms to be regulated in a comparable way rather than be subject to different rules based on the content they carry.  Essential infrastructure (electronic communications) is subject to a market based approach (the so-called ‘communications package’) and content is subject to specific minimum standards regulated in the country of origin (the audiovisual media services directive (AVMSD) and the e-commerce directive).

In both instances the regulatory framework is provided by EU secondary legislation (mainly directives), but it seems that the different measures ascribe regulatory competence as between Member States differently, and allow a regulator different scope of action. Moreover, there is not an exact fit with the underlying treaty free movement provisions.  This horizontal divide based on a service and technology neutral approach is neither as simple nor as complete as policymakers might have hoped, bearing in mind the range of intermediaries operating in the market and the range of services each operator might provide. The result is that there are unclear boundaries as to the applicable law and, as corollary of that, the relevant regulator. The difficulties are exemplified in the recent CJEU judgment in Case C-475/12 UPC v. NMHH.

UPC is essentially a retailer of electronic content: it provides packages of radio and audio-visual broadcast services transmitted via satellite and subject to conditional access technology (ie, a requirement to pay for a subscription).  Following a company restructuring, consumers in Hungary were provided with the service by a UPC subsidiary based in Luxembourg.  Following complaints by Hungarian consumers, the Hungarian communications regulator, NMHH, asked UPC for information which UPC refused to supply on the basis that NMHH was not the competent regulator, either in terms of the substance of the service and regulatory framework, or in terms of geographic jurisdiction.  UPC claimed that the Luxembourg authorities, if any, should regulate and that the Luxembourg authorities had stated that they had regulatory competence. NMHH fined UPC for non-compliance.  UPC appealed and the matter came before the Hungarian courts. The questions referred fell into two groups: on the scope of the communications package (specifically the FrameworkDirective (FD) on telecom regulation); and on its relationship with the underlying Treaty free movement provisions. The questions referred are:

(1)      May Article 2(c) of the Framework Directive be interpreted as meaning that a service by which a service provider supplies, for consideration, conditional access to a package of programmes which contains radio and television broadcast services and is retransmitted by satellite is to be classified as an electronic communications service?

(2)      May the Treaty on the Functioning of the European Union be interpreted as meaning that the principle of the free movement of services is applicable to the service described in the first question, in the case of a service supplied from Luxembourg to Hungary?

(3)      May the Treaty on the Functioning of the European Union be interpreted as meaning that, in the case of the service described in the first question, the country of destination, to which the service is sent, is entitled to limit the supply of that type of services by requiring that the [supplier of the] service has to be registered in that Member State and has to be established as a branch or separate legal entity, and allowing this type of services to be supplied only through the establishment of a branch or separate legal entity?

(4)      May the Treaty on the Functioning of the European Union be interpreted as meaning that administrative proceedings relating to the services described in the first question, regardless of the Member State in which the undertaking supplying that service operates or is registered, will be subject to the administrative authority of the Member State which has jurisdiction on the basis of the place in which the service is supplied?

(5)      May Article 2(c) of the Framework Directive be interpreted as meaning that the service described in the first question must be classified as an electronic communications service, or must such a service be classified as a conditional access service supplied using the conditional access system defined in Article 2(f) of the Framework Directive?

(6)      On the basis of all the foregoing, may the relevant provisions be interpreted as meaning that the service provider described in the first question must be classified as a provider of electronic communications services pursuant to European Community [sic] law?

EU legislation

Although from the perspective of the consumer, UPC looks like a broadcaster, UPC does not take editorial responsibility for the content of the programmes, so it does not fall to be regulated under the AVMSD (which in any event does not cover radio). In ruling so here, the Court follows its previous judgment in Case C-518/11 UPC Netherland.  The definition of ‘electronic communications service’ for the FD encompasses services normally provided for remuneration which consist wholly or mainly in the conveyance of signals on electronic communications networks, including transmission services in networks used for broadcasting, but excludes services providing, or exercising editorial control over, content transmitted using electronic communications networks.  The Court’s phraseology on this point (paras 36-39 of the judgment) is opaque, talking in terms of ‘not excluding’ the communications package. So while that package applies here, the question remains open the extent to which AVMSD or other content based provisions can also apply to content retailers, depending on the nature of the service provided. Of course, were UPC to have been deemed to be responsible for content within the AVMSD, it would probably have been subject to the regulation of the Luxembourg authorities, since that Directive usually confers jurisdiction upon the broadcaster’s country of origin.

Having excluded broadcasting, the question still remained as to whether UPC fell within the Communications Package, a question which turned on the meaning of ‘electronic communications service’ in Art. 2(c)FD.  Here, however, the point at issue was the fact that UPC did not use its own transmission facilities but contracted with a third party for satellite services. The Court, reasoning to ensure the effectiveness of the regime, agreed with the approach suggested by the Advocate General and held that use of third party facilities was irrelevant to the classification of the service. The defining criterion of the electronic communication service is whether the provider is responsible as regards end-users for transmission of the signal to provide the relevant service.

It had also been suggested that if the service were a conditional access system (defined in Article 2(f) FD), the provisions concerning electronic communications services would not be applicable. Both the Advocate-General and the Court dismissed this suggestion, so 'a conditional access system may be attached to an electronic communications service for the broadcasting of radio or television programmes, without that service losing the status of an electronic communications service’.

So, the Communications Package applied, but this still left the issue of whether the Hungarian authorities could regulate (and if so, to what degree). The FD contains no attribution of jurisdiction in the way, for example, the AVMSD does.  The CJEU dealt with this aspect by considering the powers of the national regulatory authorities, in particular as regards authorisation.  It noted that the Authorisation Directive(which forms part of the Communications Package and deals with the granting of licences and other forms of authorisation to provide relevant services) does not oblige the national authority of the jurisdiction in which the services are provided to recognise authorisation decisions taken in the Member State from which they are supplied (judgment, para 86) – here referring to the Luxembourg authorities’ statement that they had regulatory competence in relation to UPC.  As a result, Member States in whose territory the recipients of services reside may impose conditions on the provision of those services, as permitted by the Communications Package.  Under Article 11b Authorisation Directive, these include provisions to the effect that national authorities may request from undertakings information that is proportionate and objectively justified for verification of compliance with conditions relating to consumer protection.  In sum, the supply of electronic services may be monitored by the authorities of the Member State in which the recipients of the service reside.

Treaty rules on free movement of services

The Hungarian court asked whether Article 56 TFEU precluded rules which require undertakings which supply electronic communications services in the territory of a State to register those services, or rules requiring them to establish in that State a branch or a legal entity separate from that located in the Member State of transmission.  Note that where there has been full harmonisation via directive, only those rules in the relevant legislation are permitted; otherwise, some recourse to national law is permitted. The Communications Package also envisages the possibility of further national regulation, in addition to that specified by the package (recital 7 and Article 1(3) Framework Directive), and further provisions allow the regulatory authorities discretion to take action to further general objectives, including protecting the consumer interests.   This means that the area has not been totally harmonised and that any national rules in this area fall to be assessed by reference to the relevant Treaty freedom: here, services (see e.g. Case C‑17/00 De Coster; Case C‑250/06 United Pan-Europe Communications Belgium and Others). 

The normal rules governing the freedom to provide services allocated regulatory responsibility to the Member State of establishment, and that secondary regulation must take into account home state regulation.  There is clear potential for abuse here, and there has been a stream of cases in the broadcasting sector in particular, where companies have established in a Member State with a favourable regime and ‘broadcast back’ to a particular State. The Court has only rarely accepted that this is abuse or, alternatively, that such a company is actually established in the destination state.  These arguments were unsuccessful here, even though UPC does not provide services within Luxembourg; this is very much in line with the Court’s standard approach.

As regards the notification requirement, Article 3 Authorisation Directive contains a legal framework dealing with the conditions which the regulatory authorities of a Member State may impose in order to allow undertakings established in other Member States to supply electronic communications services in the territory of the host State. Provided that the host Member State follows the terms of Article 3, notification requirements are not precluded. Further, given that Article 3 seems to harmonise this aspect exhaustively, requirements going beyond Article 3 are not compatible with EU law – they cannot be judged by reference to the treaty freedoms. So, the Hungarian authorities may impose such notification requirements.

Note that  application of the Treaty freedoms might have led to a different result.  In Canal Satellite Digital (Case C-390/99), the Court held that a requirement on the operators of conditional access systems to register before carrying out services, in order for the Spanish authorities to check technical competence, in relation to a service provider established in another Member State, would not be proportionate if it duplicated checks in the home Member State.

Finally, the Court ruled that the requirement for an establishment is not specified by the Communications Package, so it does fall to be assessed by reference to the Treaty freedoms. While requiring an establishment may lead to more effective monitoring of authorisation conditions, such extensive monitoring is not justified.  In any event, an establishment requirement ‘is the very negation of the freedom to provide services and has the result of depriving Article 56 TFEU of all effectiveness’ (judgment, para 104) and cannot therefore be permitted under the Treaty.

The judgment in this case shows the importance (and complexity) of determining whether (and to what extent) a particular field of law is harmonised by EU secondary legislation, and therefore to what extent it remains regulated by the Treaty freedoms; and also the importance of determining which specific secondary legislative regime applies. It is interesting to note that although the EU took what might be termed a 'light touch' approach to telecom regulation in general, basing the system on competition law and policy principles, and assuming a distinction between the public interest and the use of that system, that process is not complete. In particular, the communications package allows space for a range of consumer protection issues and it is this, ironically, which gives more regulatory power to the receiving State than the Treaty freedoms or the audiovisual services legislation does.

Barnard & Peers: chapter 14, chapter 16

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