Dutch PM and FM reiterate the Netherlands' desire for flexible Europe

The concept of a 'flexible Europe' seems to translate across borders. In a joint letter to the Dutch Parliament, Prime Minister Mark Rutte and Finance Minister Jeroen Dijsselbloem have reiterated the government's position that it wants countries to have the right to opt out of individual EU policies, such as the Schengen zone and the eurozone, or from the EU altogether.

Here are the relevant bits from the letter:

"Following the request by member Schouten to the Finance Minister and the Prime Minister (issue number 2013Z01025) for a letter about the exit from the eurozone, we report as following.  

The cabinet introduced in its coalition agreement that it should be possible under mutual consideration to exit from the community arrangements (Schengen, eurozone, European Union). This requires in the case of the eurozone and Schengen a treaty change as the current EU treaty does not foresee this possibility."

From the horse's mouth: How the EU’s Charter of Fundamental Rights WAS to blame for higher insurance prices

Over a year ago now, the ECJ ruled that, from December 2012, insurers can no longer offer different products and prices to men and women based on their sex, since it would constitute discrimination. We estimated that a 17 year old female driver will have to pay an extra £4,300 in insurance premiums by the time she is 26 as a consequence of the ruling.

But, aside from the practical cost and barmy nature of the ruling itself (given that, for example, evidence suggests that, on average, female and male drivers present different degrees of risk), we pointed to a more fundamental issue of democracy.

This concerned the Court's reference to the EU's Charter of Fundamental Rights in its ruling, principally that the insurance industry’s derogation from the Gender Directive was incompatible with both the spirit of the Directive itself AND Articles 21 (non-discrimination) and 23 (equality between men and women) of the Charter.

We noted that this was significant because the UK's protocol on the Charter secured in the Lisbon Treaty negotiations (which the previous government claimed was an opt-out) was one of the reasons cited by the same government for not giving people a referendum on Lisbon (the protocol was later downgraded to a 'clarification').

This led to an exchange of views with the Economist's Bagehot, over whether the ruling had in fact tested the application of the Charter to the UK.

Well, today the European Commission put out this press release on your fundamental rights, safeguarded by said Charter, which states,

"...the Charter increasingly helps to shape decisions by the courts. In 2011, the number of rulings quoting fundamental rights laid down in the Charter rose by 50% at both EU and national level. One such landmark ruling by the EU's Court of Justice stressed the right of asylum seekers to protection from inhuman or degrading treatment when clarifying EU rules for determining which country should deal with an asylum application (MEMO/11/942). The decision effectively banned transfers of asylum seekers to countries where inadequate conditions would compromise their fundamental rights. In March 2011, the Court ruled in the Test-Achats case that different premiums for men and women constitute sex discrimination (MEMO/11/123)..."

This ruling, and the ruling on Greece's treatment of asylum seekers referred to in the above quote, confirm that the ECJ's interpretation of the Charter can have a major impact on the UK and is a reminder of the creeping nature of EU law, which tends to undermine national democratic settlements. Ask the Commission about this, and they will tell you that the Charter doesn’t constitute the "primary" or "most substantive point" in the insurance ruling, so the UK's protocol on the Charter remains untested (if the Commission said otherwise, there would be an almighty legal row with the UK). How ridiculous this line of reasoning is ought to be obvious from reading the Commission's press release, which celebrates the Charter's impact in the same ruling.

P.S. to avoid any confusion, the Charter can only be applied when the UK implements EU law and the Charter has no relevance to purely national law. However, as the insurance ruling made clear, this is often no consolation, since so many areas are now affected by EU legislation.

Is the opt-out safe?

The Hungarian nominee for EU Employment and Social Affairs Commissioner, Laszlo Andor, has had his European Parliament today, and it was not quite as dull as some other hearings - Mr Andor seemed willing to share his views on several issues and actually offer an opinion.

(For anyone who didn't read our briefing on the Spanish EU Presidency, they have pledged that it will be a "factory of rights", suggesting that the employment portfolio might be one to keep an eye on in the next 6 months.)

Andor said that there was a "compelling case to revisit" the Working Time Directive - negotiations on which collapsed last year.

UK Lib Dem MEP, and former member of the conciliation committee during negotiations on the Working Time Directive last year, Liz Lynne asked Mr Andor about the rights of workers to engage in overtime if they so choose, and about the opt-out more generally.

Mr Andor's response: "Since we have economic and monetary union, I think that opt-outs are, in general terms, never the best solution. We always have to think first about what rules can be or in principle could be applied in every country. But if there is some kind of fundamental obstacle to apply an overall regulation in an EU country, yes there is a possibility of opting out. Opting out, perhaps temporarily, we also have to bring in the time dimension when we think about these issues and face difficult negotiations."

"Concerning the voluntary overtime, this is really an issue that needs to be seen. I am not sure that a general conclusion could be reached. My approach would be that if it's voluntary in a certain period, within a broader context of working time regulations, we should still find ways to protect the workers, because it comes from the health and safety considerations. We should give room to voluntary arrangements that exceed regulations with certain conditions."

In her follow up question, Liz Lynne mentioned that the latest unpublished report from the Commission found that 14 states are using the opt-out, and asked him if he thought there was a possibility of bringing forward WTD negotiations on the health sector, separately from other sectors.

Mr Andor's response: "When we bring back the Working Time Directive [negotiations] we need to have a new approach and the sectoral approach can be one of the aspects. Obviously we have to learn from the difficulties of the previous attempt to review the Directive. The opt-out itself is not an abuse. I think the opt-out is a reflection of different realities in different member states and we have to take that into consideration when the discussion next comes up."

So...what conclusions can we draw, if any, on Mr Andor's stance on the Working Time Directive, and negotiations on the opt-out which is sure to come back onto the agenda this year? Well, he doesn't seem to be opposed to the opt-out itself, and recognises that different national characteristics in labour markets mean that certain adjustments need to be made in any EU approach within the field of social and employment policy.

However, he does indicate that he is against opt outs in general, suggesting they are not conducive to the smooth operation of the internal market - and they can only ever be temporary measures. This is surely not good news and would provide further support for our case that decision-making in social and employment policy should be repatriated altogether (since the opt-out has to go sooner or later with Andor's reasoning).

Additionally, the suggestion of a sectoral approach to working time negotiations spells a worrying turn. While there is much evidence that the Directive does not work well with the NHS, and other health services across the EU, the health sector is not the only one people should focus on in this respect.

It is not hard to imagine a scenario where some kind of deal is done on health workers, say by the European Parliament agreeing to a change in the definition of on-call time and rest periods, across the EU, in return for which a qualified majority could be reached within the Council to agree to an end to the opt-out altogether.

As Liz Lynne mentioned, 14 EU countries currently use the opt-out, but mostly out of necessity because the ECJ rulings on the Working Time Directive, with regards to on-call time and rest time, are not easily workable in health services.

But what about other workers that want the ability to take on voluntary overtime as and when they choose, and don't necessarily want a maximum cap on working hours handed down by their MEPs, most of whom they have probably never heard of. For more information on the kind of people that want to retain the opt-out for their industries, see our briefing on the Directive and opt-out.

All in all, there are definitely worse people we could see in the position of Employment and Social Affairs Commissioner than Laszlo Andor, but his appointment may not be good news all round.

This game is not over

This is from Swedish Radio:

Swedish Employment Minister Sven-Otto Littorin - whose country currently is at the EU helm - will next week sit down for a talk with the new chairman of the European Parliament's employment committee (most likely an MEP from the EP's socialist bloc). The objective is to revive the negotiations over the EU's Working Time Directive. As we reported on extensively as the story line unfolded, the negotiations broke down in April following a disagreement between the EP and the Council over the right of British and other European workers to opt out of the EU's maximum 48 hour working week, entailed in the Directive.

We've estimated that the Working Time Directive as it currently applies in the UK is already costing the economy between £3.5 billion and £3.9 - a cost that could rise to between £9.2 billion and £11.9 billion should the opt-out be scrapped.

The Swedes, alongside several other European countries, are primarily interested in changing the rules in the WTD which define all time spent on-call as active working time - a rule that has messed up rota systems in health care sectors right across Europe, and cost taxpayers billions (the rules were introduced following two absolutely ludacrious rulings by the ECJ).

As several member states are using the opt-out primarily to get around the on-call time rules, we fear a future deal between ministers and MEPs, in which the European Parliament agrees to revise the on-call time provisions, in return for removing the opt-out altogether. Critically, the opt-out has been an obsession for the socialists in the EP for some time, and a surprising number of MEPs in the EPP are also in favour of seeing it go.

In such a horse-trading scenario, the UK could suddenly find itself terribly isolated. Is anyone in Whitehall paying attention?