Infringement Proceedings & References to the Court of Justice of the EU. Adam Weiss The AIRE Centre

Transcription

1 Infringement Proceedings & References to the Court of Justice of the EU Adam Weiss The AIRE Centre 1

2 Objective Empower you to make complaints to the European Commission which are likely to lead to infringement proceedings and to successfully convince UK courts and tribunals to refer questions to the Court of Justice that are likely to lead to helpful clarifications of the Directive. 2

3 Outline 1. Discussion of Added Value of the Directive 2. Overview of how infringement proceedings work, with an example from the AIRE Centre 3. Overview of how preliminary references work, with an example from the AIRE Centre 4. Discussion of the EU-law context of the Directive 3

4 Added Value of the Directive Unlike the Council of Europe Convention on Action Against Trafficking in Human Beings, provisions of the Directive which are clear, precise and unconditional have direct effect in the UK legal system. Other provisions of the Directive may have indirect effect, which means that provisions of UK law must be interpreted, to the extent possible, in harmony with the Directive. 4

5 Infringement Proceedings Article 258 of the Treaty on the Functioning of the EU: If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union. 5

6 Possible complaints to the EC EEA nationals are entitled to certain social assistance benefits (e.g. Housing Benefit, incomerelated Employment and Support Allowance) only if they have a right to reside in the UK (usually, being a worker or self-employed or permanently resident, or the family member of another EEA national in one of those categories. In the case of EEA trafficking victims (who make up about a quarter of those referred to the NRM), this may result in a breach of Article 11 if they are left destitute after the reflection period. Legal aid restrictions (particularly in future) may infringe Article 12 of the Directive. 6

7 Related Example of Past Infringement Proceedings: the right-to-reside test for EEA nationals June 2009 initial complaint to EC Sep 2011 EC press release about infringement (reasoned opinion) Mar 2013 EC asks AIRE for case studies Aug 2009 initial response from EC June 2010 letter from EC confirming letter of formal notice sent Apr 2013 EC confirms to AIRE in writing that infring. is still pending Oct 2009 visit with EC in Brussels to discuss Feb 2010 detailed letter from EC agreeing with us 7

8 References to the CJEU Art 267 TFEU The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay. 8

9 Example of Possible References from UK courts or tribunals Article 8 (indirect effect): cases where teenagers are convicted of cannabis abuse and not properly identified as victims before pleading guilty. Article 17 (direct effect?): cases where victims of trafficking are refused compensation by the Criminal Injuries Compensation Authority because the crimes are not sufficiently violent 9

10 European Context The UK is not going to be seen as the EU s biggest problem Provisions must apply the same way around the EU, and the UK did not participate in the negotiation (see Art 12) 10

11 UK Opt-Outs from Other EU Directives Directive 2004/81: binding EU-law rules on when Member States must provide residence permits to third-country national trafficking victims. Directive 2009/52: requires Member States to allow third-country nationals who have been illegally working to recover their wages (at least the minimum wage). 11

12 Charter of Fundamental Rights Contains a prohibition on trafficking (Article 5) as well as other helpful provisions. Only applies when the UK is implementing Union law. The Court of Justice recently took a very restrictive view on what this means. Case C-87/12 Ymerga, paras Always worth raising, in any event. 12

13 Working with AIRE We provide free legal advice on EU law (mainly the rights of EEA nationals and their family members). We litigate cases in the European Court of Human Rights. We can advise on the use of the Directive and perhaps become involved in cases. 13