What are the legal implications of David Cameron s demands for EU migration reform? By Professor Damian Chalmers

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1 What are the legal implications of David Cameron s demands for EU migration reform? By Professor Damian Chalmers Both the Prime Minister and Foreign Secretary have indicated that they will seek Treaty reform to secure the changes in David Cameron s recent EU speech. This might be desirable for presentational reasons. It allows them to argue that their proposed changes are significant, and, in a corollary manner, that any changes sought along the same lines, which do not involve such change, are much less significant. Such changes could be secured through the Simplified Revision Procedure as they go to Part Three of the TFEU. 1 This would require the consent of all the Member States in accordance with their national constitutional requirements, but not that of the European Parliament or the Commission. It would also require the consent of the three EFTA States party to the EEA, as there are identical provisions in the EEA Treaty, 2 and Switzerland as there is a similar (albeit not identically worded) provision in the 2002 EU-Switzerland agreement on free movement of workers. 3 There are, thus, thirty one veto players, each of whom would have to negotiate a bill through their national parliaments with opponents arguing loudly that a cardinal principle of EU law is being torn up. Any treaty amendment would also allow other Member States to put their own proposals forward to amend the Treaties: proposals which might not be conducive to British interests. So what is being asked? And does it require Treaty reform? The Prime Minister s speech is, at times, ambiguous. My reading is that, if interpreted at their most demanding, some proposals would require Treaty change, whilst most demands do not, but can, instead, be secured through amendment of secondary legislation which would just require qualified majority in the Council and for the European Parliament to abstain from exercising a veto. On other readings of the speech, no Treaty amendments are necessary. The Prime Minister s speech was divided into four types of demand. We will deal with each, albeit spending most time on the last and most legally controversial, in-work benefits. 1 Article 48(6) TEU. 2 Articles 28 and 31 EEA, notably. 3 Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons 2002, article 4 and Annex 1. 1

2 1. Abuse of Free Movement The Prime Minister mentioned two proposed reforms. stronger powers to deport criminals and stop them coming back and tougher and longer re-entry bans for all those who abuse free movement including beggars, rough sleepers, fraudsters and people who collude in sham marriages. EU law already allows Member States to deport and exclude citizens from other EU States on grounds of public policy. 4 All the activities mentioned above, as criminal offences, would fall within that heading. Exclusion orders can be issued for an indefinite period, but after a reasonable period and in any case within three years from exclusion, the individual has a right to argue that the material circumstances justifying the original decision have changed and that, consequently, he can be re-admitted 5 As this is governed by EU secondary legislation, any reforms tightening this up could be done through amending this legislation. One challenge is whether the person meets the threshold to be deported or excluded on grounds of public policy at the moment of deportation as, at that moment, he must represent a present threat. In the case of significant criminal offences where the individual has served a long prison term, the deportation may be several years after the offence, and it is open to the individual to argue that they are a reformed character. This requirement of a present threat has always been interpreted as something set out by secondary legislation. 6 However, it is possible that the Court would state, in the absence of such legislation, that it is granted directly by the Treaty on the grounds that the public policy exception is one which must be interpreted narrowly and may only be invoked against an EU citizen when they clearly fall within it. An alternative, to avoid this risk, is those convicted of long jail terms serve their time in a prison in their State of nationality so that they are deported at the time of conviction. There is already provision for this. 7 The second proposed reform is the following. 4 Directive 2004/38 on the right of citizens of the Union and their family member to reside freely within the territory of the Member States, OJ 2004, L 158/77, article 27(1) 5 Ibid. article Orfanopoulos, C-482/01, EU:C:2004:262; Polat, C-349/06, EU:C:2007:581; Commission v Netherlands, C-50/06, EU: C: 2007: Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union, OJ 2008, L 327/27, articles 4 & 6(2)(b). 2

3 We must also deal with the extraordinary situation where it's easier for an EU citizen to bring a non-eu spouse to Britain, than it is for a British citizen to do the same. At the moment, if a British citizen wants to bring, say, a South American partner to the UK, then we ask for proof that they meet an income threshold and can speak English. But EU law means we cannot apply these tests to EU migrants. Their partners can just come straight into our country without any proper controls at all. And this has driven a growing industry in sham marriages, with this loophole accounting for most of the 4,000 bogus marriages that are thought to take place in Britain every year. We have got to end this abuse. This proposal, depending on what is sought, is the most challenging in terms of possible Treaty reform. There are a number of judgments where the Court has indicated that refusing to grant a non EU national family member residence would violate the Treaty because it would discourage the EU citizen from exercising their rights to free movement. 8 On its face, therefore, unilateral income and language requirements would require Treaty reform. Insofar as other Member States might, in turn, impose their own requirements, it could also lead to problems for Britons wishing to reside elsewhere in the Union As an alternative, it would be possible for EU legislation to harmonise requirements on family reunification between EU citizens and non EU nationals, so that the latter could only join the EU citizen in another Member State if they meet certain requirements. There is already a Directive governing the circumstances when family members can join non EU nationals within the Union, and there is no doubt that the Union has a competence to adopt a parallel Directive for EU citizens. 9 It is also not clear from the Prime Minister s speech if he wishes this problem addressed only to the extent that it generates abuse of the institution of marriage. In that regard, EU secondary legislation already allows Member States to take measures against citizens who engage in abuse of rights or fraud, such as marriages of convenience. 10 If this is so, EU legislation setting out in more detail the leeway for when Member States can act against marriages of convenience would be another (or additional) way of proceeding. 8 Iida, C-40/11 EU:C:2012:691 paras and case law cited there. 9 Directive 2003/86 on the right to family reunification, OJ 2003, l 251/12. The United Kingdom does not participate in this Directive. Any further legislation could be based either on Article 21(2) TFEU or Article 79(2) TFEU. 10 Directive 2004/38, article 35. 3

4 2. The Position of Job Seekers Two reforms were proposed by the Prime Minister. We want EU jobseekers to have a job offer before they come here and to stop UK taxpayers having to support them if they don't.at the moment 40 per cent of those coming to work in the UK do not have a job offer when they arrive - the highest proportion in the EU. Many of these will no longer come. If any EU citizen must have a job offer before they can come into the United Kingdom to work, this would require Treaty reform. Case law of the Court of Justice is quite clear that the Treaty gives EU citizens not merely the right to work in another but also the right to look for work. 11 We are not clear, either, that this would be an effective policy tool. It would be difficult to see how it would be enforced against the self-employed, who could still come, and it would provide incentives for British employers simply to set up agencies in other Member States: agencies to which British citizens would not have easy access. The proposal is better interpreted as suggesting that no social benefits will be granted to job-seekers. EU law already provides, however, that these are not entitled to such benefits. 12 No negotiations are needed on this point. The only limited exception is a right to use the employment services provided by national authorities on the same terms as a State s own citizens. This is protected by secondary legislation but the Treaty also requires Member States to facilitate access to employment to EU citizens on the same basis as their own nationals. 13 If it is proposed that this be denied to citizens from other EU States, then Treaty reform will be required. It was not mentioned, however. We also want to restrict the time that jobseekers can legally stay in this country. So if an EU jobseeker has not found work within six months, they will be required to leave. The United Kingdom can already do this if it wishes. EU law only grants a right of residence for more than three months to those who are covered by article 7(1): the employed, self-employed, and economically self-sufficient as well as their family members. The Court of Justice has been 11 Levin, 53/81, EU:C:1982: Lebon, 316/85, EU:C:1987:302; Collins, C-138/02, EU:C:2004:172. See also Directive 2004/38, article 14(4)(b) & article 24(2). 13 Regulation 492/2011 on the free movement of workers within the Community, OJ 2011, L 141/1 article 5. Ioannidis, C- 258/04: EU:C:2005:559. 4

5 very clear about the position of those who fall outside this provision. In, a judgment last year, Alokpa, it stated that Member States could deny such citizens residence. 14 As stated above, the employed covers those who are looking for work. In Antonissen, the Court stated that Member States were only required to give individuals a reasonable period to do this, and that six months was reasonable. It did note, however, that if at the end of that period the individual provides evidence of a genuine chance of being engaged, then they could stay. The onus is on the individual to prove this, however No Free Movement of Persons for States Acceding to the European Union Unless Their Economies Have Converged More Closely with Existing Member States As the Prime Minister indicated, the possibility for free movement of nationals of these States depends on the terms of any accession treaty between that State and the European Union. All States have a veto over any accession, 16 and thus the United Kingdom has the formal possibility to insist on such terms. 4. The Denial of In-Work Benefits and Child Benefits to those Resident in the United Kingdom for less than Four Years This was the most bannered of the proposals and is the most legally complex. It does not require Treaty reform for two reasons. The first is that denial of benefits is currently outlawed in EU law by virtue of a piece of secondary legislation, centrally article 7(2) of Regulation 492/2011, rather than by the Treaty provision on free movement of workers, Article 45 TFEU. 17 The second is that, even if this were not the case, the Treaties grant considerable discretion to the EU legislature to place restrictions on the acquisition of such benefits provided that the legislation facilitates free movement more generally, the restrictions are based on objective criteria and are not manifestly inappropriate to the objectives they pursue. 14 Alokpa, EU:C:2013:645, para Antonissen, C-2092/89: EU:C:1991: Article 49 TEU. 17 Mention must also be article 9 of the same Regulation which provides for the grant of housing benefits on the same terms as a State s own nationals and article 10 which provides for the grant of education and training to a worker s children on the same terms as a State s own nationals. The latter would not have to be repealed under the Prime Minister s reforms whereas the former would. 5

6 (a) Regulation 492/2011 rather than Article 45 TFEU currently prohibits the denial of inwork benefits to other EU Citizens Article 45(2) TFEU prohibits discrimination against workers from other EU States, and this is reinforced by Article 18 TFEU which prohibits discrimination on grounds of nationality within the scope of application of the Treaty. When EU citizens go to work or look for work in another Member State, they fall within the scope of application of the Treaties, and, therefore, it has been argued, any denial of social advantages such as in-work benefits by virtue of their nationality is a violation of the Treaties. However, discrimination on grounds of nationality is only prohibited where an activity falls within the scope ratione materiae of EU law. 18 This phrase does not mean that whenever an EU citizen falls into any category governed by EU law they are entitled to the same social and tax advantages and security of residence as a State s own nationals. If that were true, the current Citizenship Directive would be illegal as only EU citizens meeting certain conditions are entitled to equal treatment in the sense above, 19 and only those meeting the terms for permanent residence are entitled to security of residence. 20 This interpretation would also conflict with a number of judgments where EU citizens present in another Member State, often for some time, have been denied benefits. Much has been made of the recent Dano judgment, 21 but one could also point to Hadj Ahmed, 22 Lebon and Collins. 23 So what is the ratione materiae of Article 45 TFEU, which can only be amended by Treaty changes? It has been set out in Article 45(2) TFEU, which prohibits discrimination concerning employment, remuneration and other conditions of work and employment. The first of these governs access to employment, which the Court has also held to be protected by Article 45 TFEU. 24 Article 45 TFEU, therefore, protects against discrimination in the operation of the contract of employment and discrimination surrounding access to such a contract. It does not govern social and tax advantages. 18 Baumbast, C-413/99 EU:C:2002:493, Rottman C-135/08, EU:C:2010:104; Runevič-Vardyn, C-319/10 EU: C: 2011: These are that they must be employed, self-employed or economically self-sufficient or a family member of an EU citizen that falls into one of these categories, Directive 2004/38/EC, article 7 and article 24(2). 20 They must, most notably, have resided within the host State for five years. Ibid. article 16. The central Regulation on coordination of social security would also be illegal as it provides for numerous derogations to the principle of equal treatment, as would the European Arrest Warrant. The latter is addressed later in this piece. On the former see Regulation 883/2004 on the coordination of social security systems, OJ 2004, L 166/1, notably article Dano, EU:C:2014: Hadj Ahmed, EU:C:2013: Lebon, 316/85, EU:C:1987:302; Collins, C-138/02, EU:C:2004: Collins, C-138/02: EU:C:2004:172; Ioannidis, C-258/04: EU:C:2005:559. 6

7 Equal treatment in social and tax advantages are, instead, protected by article 7(2) of Regulation 492/2011, which, as a piece of secondary legislation, can of course be amended. 25 This states that he [the worker] shall enjoy the same social and tax advantages as national workers. If the Court has stated that Article 45 TFEU and article 7(2) pursue the same end, 26 it has never stated that a social and tax advantage covered by article 7(2) is also governed by Article 45 TFEU. Indeed, the central judgment cited against our position, O Flynn, actually supports our argument. It found that publicly funded funeral expenses fell exclusively under article 7(2). There is, furthermore, a whole host of case law, including recent case law such as Giersch and Commission v Netherlands which supports this position. 27 By contrast, there are a number of judgments which go to the terms of the contract. In such cases, the Court has held that they are simultaneously governed by other parts of article 7, article 7(1) and (4), and Article 45 TFEU. 28 Such distinct reasoning would not have been used if social and tax advantages were covered by the Treaty prohibition. For completeness sake, we will raise three other points. 29 First, there are two cases where one finds social advantages granted to citizens from other EU States to be governed by Article 45 TFEU rather than secondary legislation. This number contrasts unfavourably with the number where the opposite is the case. They should nevertheless be addressed. In neither was the relationship between article 7(2) and article 45 TFEU addressed or argued. The first, Chateigner, 30 concerned the grant of unemployment somebody without a job. It contradicts other earlier case law which indicates jobseekers are not entitled to social advantages. 31 It does not address these cases. There has been no citation of this case, and, indeed, in the 25 Regulation 492/2011 on the free movement of workers within the Community, OJ 2011, L 141/1. This replaced an earlier piece of legislation which contained an identical provision, Regulation 1612/68 on the free movement of workers within the Community, OJ Sp Ed. 1968, L 257/2. As mentioned earlier, article 9 of that Regulation governs housing benefits. The reasoning applied here to article 7(2) applies equally to that provision. Amendments would also have to be made to the regime on coordination of social security systems, most notably Regulation 883/2004 on the coordination of social security systems, OJ 2004, L 166/1. 26 O Flynn, C-237/94 EU:C:1996:206, para Giersch EU:C:2013:411. Commission v Netherlands is particularly apt as it concerned a residence requirement which was applied to benefits for workers. Commission v Netherlands, C-542/09, EU:C:2012:346. The point is also made in Collins cited earlier. In addition to the case law already cited see also Geven, C-213/05 EU:C:2007:438; Hartmann, C-212/05 EU:C:2007:437; Ninni-Orasche, C-413/01 EU:C:2003: SALK, EU:C:2013:799; Erny, EU:C:2014: The position on the self-employed is more ambiguous as Article 49 TFEU has been deployed to prohibit the grant of social advantages, Commission v Luxembourg, C-299/01: EU:C:2002:394. The case law is very old, however. The last case was in 2002, and the origins of this case law were tied to whether the denial of the advantage will weaken the self-employed person s competitive position in the market place, Commission v Italy, 63/86: EU:C:1988:9. We believe this is not sufficiently strong to tie the EU Institutions hands if they wish to legislate, particularly as the case law on Article 45 TFEU is so overwhelming. 30 Chateigner, C-346/05: EU:C:2006: See Lebon and Collins. 7

8 judgment immediately subsequent to it, the Court reverted to looking at secondary legislation with regard to tax advantages. 32 It conflicts with so much other case law that it cannot be seen to have any operative weight. The other, Petersen, is more challenging for our argument. 33 It concerned an Austrian who wished to return to Germany, having been made unemployed in Austria, and who was denied an incapacity pension on the grounds that he was not resident in Austria. This was found to constitute unlawful discrimination under Article 45(2) TFEU, and, is thus a clear example of the Treaty provision covering differential treatment of benefits. It is distinguishable, however, because Mr Petersen had spent a number of years in Austria working. He was, as the Advocate General, somebody who had integrated himself into that political community. He would have met the resident condition proposed by the Prime Minister. Furthermore, nobody defended the denial of benefit in that case. Indeed, the Austrian government could supply no objective reason for it. Its denial also caused him significant hardship, and made it harder for him to return to his State of nationality. 34 This combination of factors explains the case, and it is difficult seeing it as a wider statement about the relationship between Article 45 TFEU and benefits. Like Chateigner, the judgment has not been cited since on this point (albeit cited on other aspects). The second concerns the social advantages to be granted to job-seekers. These are required by Article 45 TFEU to be granted on the same terms to citizens from other EU States where they facilitate access to employment. Such advantages do not, according to case law, have to be tied to securing a particular job. 35 This position may now be changing, so whilst States have to grant other EU citizens access to job centres and cannot grant direct recruitment subsidies which pay employers to take local labour, 36 it is not clear that Article 45 TFEU requires them to grant citizens from other EU States job seeker allowances or publicly funded apprentices. In the main case, Ioannidis, the Court indicated that States could take measures to support local geographic employment provided that the measure is proportionate to securing this. 37 It thus allows for considerable differential treatment. Since that judgment we have had Dano. The allowance in Dano was a jobseekers allowance, intended to allow citizens to live in dignity whilst looking for a job. It was identical to that in Ioannidis, except that the latter was granted only to younger people with a 32 Celozzi, C-332/05: EU:C:2007: Petersen, C-228/07, EU:C:2008: The Court was aware of these elements which were explored in detail in the Opinion by Advocate General Colomer at paras He argued therefore for the interpretation of Article 45 TFEU in the light of the citizenship provisions. We agree with this, albeit we note the limits that can be placed by Article 21 TFEU. 35 Eg. Ioannidis, C-258/04: EU:C:2005:559; Prete, C-367/11, EU:C:2012: Krier, C-379/11: C:2012:798; 37 Ioannidis, C-258/04: EU:C:2005:559. 8

9 university education. This suggests a shift in looking at these things as, in Dano, the allowance was refused. The third concerns the payment of benefits abroad. On this, the Prime Minister stated: If their child is living abroad, then there should be no child benefit or child tax credit at all no matter how long they have worked in the UK and no matter how much tax they have paid. Child benefits are considered to fall within article 7(2) of Regulation 492/2011 rather than Article 45 TFEU. Restrictions on these do not require Treaty amendment. However, there remains the question whether a residence condition on a beneficiary of a benefit (ie that they must live within the national territory) violates article 7(2). Such conditions are found to constitute indirect discrimination, insofar as they adversely affect citizens from other EU States more than a State s own nationals. As such, they will be considered to be unlawful under that provision unless they serve a public interest and the restriction is proportionate to that interest. 38 The Court has stated that a public interest which may justify restrictions is a requirement of a link between the beneficiary of the benefit and the host society. 39 It is highly unlikely that this would be the case with children back in the worker s state of nationality. The measure must also be proportionate. On this, the Court has stated that a residence condition may be disproportionate if it favours an element which is not necessarily representative of the real and effective degree of connection of the citizen with that society and excludes all other representative elements. 40 To be sure, there may be exceptional cases where the children have lived for a considerable period in the host society, and have then returned to their state of nationality because of circumstances such as family separation, and it would be possible to argue that a residence condition might not reflect their link with the host society. However, a presumption that children should be currently resident in a host State before child benefits can be paid to their parents which can only be rebutted where evidence is provided of a significant prior period of residence would, in my view, be compatible with the current law. For reasons set out below, Union legislation could impose a requirement of residence if it was so wished. 38 The leading case on child benefits is Hartmann, C-212/05 EU:C:2007: Giersch EU:C:2013:411. The Court did not consider the question of the presence of a link between the citizen and the host society in Hartmann as Germany was paying benefits to many citizens in other Member States and was thus not applying any policy evenly. 40 Giersch EU:C:2013:411. 9

10 (b) EU Legislation may impose restrictions on free movement and residence under Article 21 TFEU provided that the legislation as a whole gives effect to free movement, is based on objective criteria and is not manifestly inappropriate to the objectives it pursues The arguments surrounding the limits of Article 45 TFEU cite case law involve unilateral restrictions by Member States. First, it is not clear this case law can be transposed easily to action by EU Institutions. EU legislative acts are granted a latitude not granted to national action where the Union legislature has a broad discretion where its action involves political, economic and social choices and where it is called on to undertake complex assessments and evaluations. 41 Few would doubt that welfare reform does not involve such choices or such assessment. It can, thus, take measures which might be considered discriminatory, disproportionate or even an unlawful restriction on free movement if taken unilaterally by a Member State. Secondly, particular leeway is given to any measure whose overall thrust is to promote free movement. 42 This would remain the case with Directive 2004/38/EC, which sets out conditions allowing EU citizens to live in another State, acquire permanent residence there and, after a period, benefit from the principle of equal treatment in relation to social and tax advantages. Thirdly, any legislative measure adopted would give effect to Article 21 TFEU which states: Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect [italics added] The provision, with Article 20(2) TFEU, is unique as it allows restrictions to be placed on a Treaty right, the right to move and reside freely, by secondary legislation, be it a Directive or Regulation. 43 Furthermore, it is clear that these restrictions may be applied not just to the economically inactive exercising their rights on the basis of Article 21(1) TFEU but also to the economically active: be these employed, self-employed and those providing or receiving services who would exercise their rights to free movement under other provisions. There is a clear hierarchy of norms in which the 41 Arcelor Atlantique, C-127/07 EU: C:2008:728, para 57; IATA, C-344/04 EU:C:2006:10, para Kokopelli, C-59/11: EU: C:2012: Article 20(2) TFEU also indicates that the right to free movement and residence for EU citizens can be restricted by secondary legislation. 10

11 latter provisions, the Court has stated, are specific expressions of Article 21 TFEU. 44 As specific expressions of that provision, they would, thus, be subject to the constraints and limits which may be imposed under it. Restrictions can, therefore, be imposed as easily on in-work benefits under it as out-of-work benefits. These three features grant the EU legislature considerable leeway to impose restrictions on other benefits. So what would be the limits to these restrictions? In other fields of law, notably free movement of goods, the Court has stated that restrictions must be in the general interest, any difference must be capable of being justified in relation to this interest and must be proportionate to the aim pursued. 45 A number of public interests have been recognised as justifying restrictions. These have included an individual being an unreasonable burden on the social assistance system, protecting a Member State s public finances 46 and securing a sufficient degree of integration between the citizen of another Member State and the host society. 47 We would add a further reason: the protection of national citizenship. The Treaty clearly states that EU citizenship is complementary to it and shall not replace it. 48 It sets out an interest, therefore, which is to be protected by Union secondary legislation. This range of public interests provides both pecuniary and non-pecuniary reasons for imposing restrictions. The difference must next be justified in relation to these interests. On this, it must be noted the simple imposition of a period of residence prior to acquisition of benefits is not unlawful discriminatory treatment. 49 The differential treatment does, however, impose a duty on the Union legislature to justify it. 50 Our own view is that the best justification lies in the protection of national citizenship. National citizenship is an institution which, when granted on the basis of residence, typically takes many years to acquire as well as the passing of an integration test in many States. It is seen as something very valuable which is not to be acquired easily. It trivialises the institution if its benefits are granted to any person who is just passing his or her hat in a territory. Our view is 44 Bartlett, C-537/09, EU:C:2011:278, para 41; Hendrix, C-287/05, EU:C:2007:494, para National Association of Health Stores, C-154/04 and C-155/04: EU:C:2004:848, paras 47, 48 & Most notably, Brey, EU:C:2013:565, paras 54 & Commission v Netherlands, C-542/09, EU:C:2012: 346, para Article 17(1) TFEU. 49 Brey, EU:C:2013:565, paras See also Habelt, C-396/05, EU:C:2007: Arcelor Atlantique, C-127/07 EU:C:2008:728, paras

12 reinforced by both judicial and legislative practice. The Court is extremely reluctant to allow States to strip their citizens of benefits because these have moved to another territory. 51 Alongside this, other EU legislation uses this as a basis for important distinctions, which have been upheld by the Court. The European Arrest Warrant provides that States may distinguish between citizens and long-term residents who may not be surrendered, on the one hand, (provided the sentence is executed within the State of nationality or long-term residence) and others who must be surrendered if the other conditions for surrender are met. 52 Finally, a large number of national constitutional courts have stated that EU law must respect and be subject to national citizenship laws. 53 It is something which these believe has to be strongly protected even if this creates distinctions between nationals and other EU citizens. We believe this to be a more satisfactory way of justifying the difference than working out the fiscal contribution of different groups of EU citizens to a host State. These contributions will be difficult to calculate, ignore that an individual s contribution to a society extends beyond their payment of taxes, and, as active participation in the labour market can vary according to age, gender etc, can introduce pernicious distinctions. Finally, any restrictions must be proportionate. In this context, this would require that any measure not be manifestly less appropriate than those that would be produced by other measures that were also suitable for those objectives. 54 This test of manifest inappropriateness is a loose one. It grants the Union legislature more discretion than unilateral national measures. It should be easy to satisfy for the reasons outlined in the preceding paragraph. In this regard, we would like to contrast this discretion with case law, which seems to contradict our position. In relation to article 7(2) of Regulation 492/2011, mere presence of employment has been held to be enough to demonstrate a sufficient link with the host society to justify the EU citizen being treated as sufficiently integrated into that society to justify equal access to benefits. The reason is that the 51 Prinz, EU:C:2013:524; Thiele Menezes, EU:C:2013:683; Elrick, EU:C:2013: Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, OJ 2002, L 190/1, article 4(6). Member States may require that other EU citizens be resident for a considerable period of time (ie 5 years) before considering them residents to be protected by this provision. Wolzenburg, C-123/08 EU:C:2009: Re Constitutionality of Framework Decision on the European Arrest Warrant [2007] 3 CMLR 24 (Czech Republic); Re Constitutionality of German Law Implementing the Framework Decision on a European Arrest Warrant [2006] 1 CMLR 16 (Germany) Case P1/05 Re Enforcement of a European Arrest Warrant (Polish Constitutional Tribunal) [2006] 1 CMLR 36; SK 26/08 Surrender of a person who is the subject of the European arrest warrant, Judgment of 5 October 2010 (Poland); Attorney General v Konstantinou [2007] 3 CMLR 42 (Cyprus). 54 Arcelor Atlantique, C-127/07 EU: C:2008:728, para

13 employment involves payment of taxes which, in turn, finance that State s social policies. 55 The justification did not relate to national citizenship, as we have suggested. Notwithstanding that, it is suggested that few Europeans would regard somebody who had worked part-time on a fixed term contract for less than three months as more integrated into a society than somebody who had lived there, albeit not working, for four years. The factors deemed to constitute a level of integration sufficient to acquire the principal benefits of national citizenship would be better decided by the EU legislature, and, if it did that, the Court would respect its position. 55 Commission v Netherlands, C-542/09, EU:C:2012:346; Caves Krier, C-379/11, EU:C:2012: