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MEMBERS OF THE PANEL
Professor Sir David Edward Chairman of the Panel
Former Judge of the Court of Justice of the European Communities
Professor Emeritus at the School of Law, University of Edinburgh
Dr Alexander Schaub Former Director-General in the European Commission
Of Counsel, Freshfields Bruckhaus Deringer LLP
John Handoll Partner, William Fry
Monica Frassoni Co-President of GreenParty
Onno Brouwer Partner, Freshfields Bruckhaus Deringer LLP
Rodolphe Munoz Lecturer in Law, University of Lige
Professor Takis Tridimas Sir John Lubbock Professor of Banking Law
Tony Venables European Citizen Action Service
OBSERVERS
(In a personal capacity)
David Lowe Petitions Committee European Parliament
Francesca Beltrame Official, European Parliament
Gundi Gadesman & European Ombudsmans Office
Rosita Agnew
SECRETARIAT
Britney Wehrfritz European Citizen Action Service
Saira Henry European Citizen Action Service
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1. INTRODUCTION AND SUMMARY1.1 One of the major successes of the European Union is enshrined in the right of freemovement allowing all European citizens to move and reside freely within the EuropeanUnion. However, despite a legal framework which guarantees such a right for European
citizens, ECAS has found its enforcement both on a European and a national level to be
falling behind, thereby undermining the progress achieved by the European Union inestablishing those rights.
1.2 At ECAS request, a Panel was set up to turn its attention to the fundamental rightof free movement and the steps which could be taken to ensure better enforcement.
Indeed, the Panel has observed the same gap between a worthy legal framework which
guarantees European citizens the right of free movement (put in place through Europeanlegislation and the case law of the European Court of Justice) and the ability to exercise
that right. Importantly, the Panel has observed that this gap exists not because of
deficiencies with the legal frameworkper se but because of inadequate enforcement.
1.3 The Panel believes that now is the time to act. The Lisbon Treaty1 has finallybeen ratified by all 27 Member States of the Union and thus is in force. With the newTreaty, the Charter of Fundamental Rights2 will become legally binding. This is
therefore the right time for the political and executive institutions to be proactive in
building on what their predecessors have done. It is all the more relevant since reformscan be envisaged in the near future as a new European Parliament was elected only in
June of this year and the new Commission should be in place by February 2010.
1.4 The recession adds greater urgency to the need for the European Union to defendcore European rights and keep European labour markets open. The Report and the 10
recommendations set out in this Report are a call for urgent action. Indeed, the Panel and
ECAS are not alone in considering that the major obstacle to citizens effective exerciseof their rights of free movement lies in the need for better enforcement. The European
Commission (Commission) has also recently placed emphasis on the need forenforcement of European rights and has, in particular, recognised that now that asubstantial legal framework is in place the focus of future action should be on
consolidation and enforcement.3
1.5 Against this background, this Report explains the practical reality faced byEuropean citizens by first considering the gap between the legal framework and the wayit is applied. This Report then considers the measures that might be taken to close the
gap between legal theory and practical reality under the following headings:
1Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European
Community, signed at Lisbon, 13 December 2007, OJ C306, 17.12.2007.
2Charter of Fundamental Rights of the European Union, OJ C364, 18.12.2000.
3Communication from the Commission: Justice, Freedom and Security since 2005: An evaluation of
the Hague Programme and Action Plan, Com (2009) 263 final. See page 15 under the heading
Further attention to implementation and enforcement.
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(a) The role of the European Institutions;(b) Preventive action;(c) Information, advice and active help;(d) Formal complaints and petitions;(e) Judicial remedies for European citizens; and(f) Budgetary considerations.1.6 The Panels conclusion is that the gap can be bridged through a number measures many of which can be implemented with little resources and indeed, a cost saving
could be expected. This Report makes the following 10 recommendations to achieve a
better enforcement of European citizens rights (more fully set out in Section 9, pages 27-8, below):
1. Introduction of a new Commissioner specifically responsible for citizenshiprights and the Charter
2. Improved cooperation between the Institutions and the Member States for
better implementation of the law
3. A one-stop shop to enable citizens to understand and exercise their rights
4. A shift in enforcement policy from reacting to complaints to ensuring that
legislation is correctly applied in the first place
5. Introduction of transparency as a powerful instrument for enforcement
6. Faster resolution of citizens problems in a citizen-friendly way
7. Better complaint-handling by the Commission
8. Holding defaulting Member States to account
9. More effective complaints procedures in the right to petition the EuropeanParliament and to make complaints to other bodies
10. A wide-ranging information campaign on citizens rights
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2. A VISIBLE GAP BETWEEN THE LEGAL FRAMEWORK AND ITS PRACTICALENFORCEMENT
2.1 The premise of this Report is the gap between the established legal frameworkand the way it has been implemented in practice. It is against this background that the
need for reforms is made apparent in order to improve the enforcement of European
citizens rights.
The Legal Framework
2.2 The EU has been successful in developing the legal framework aimed atprotecting the rights of citizens to move and reside freely within the territory of theMember States. In the context of the free movement of workers, the European Union
responded to changing patterns of migration and adopted rules for the self-employed,
students and pensioners. The introduction of a Citizenship of the Union in theMaastricht Treaty in 1991 and in particular the case law of the European Court of Justice
linking Article 18 (free movement) and Article 12 (equal treatment) has resulted in free
movement becoming a fundamental citizenship right.4
2.3 The citizens right of free movement can be exercised independently of anyrequirement to pursue a particular economic activity.
5The right of free movement is not
unconditional but the European Court of Justice has stressed that any restrictions by
national authorities must be shown to be necessary and proportionate to achieve a
purpose of general interest. The court has held in the Garcia Avello case that thesituations that fall within the material scope of Community law include those involving
the exercise of the fundamental freedoms guaranteed by the Treaty, in particular those
involving the freedom to move and reside within the territory of the Member States, as
conferred by Article 18 EC.6
2.4 In turn, this historical development has resulted in a clearer legal frameworkwhere older laws gradually introduced and covering different sections of the population
or situations have been brought together. In theory, the rights to move freely in the
European Union, to have access to social entitlements and to achieve recognition ofprofessional qualifications are secured.7 Citizens have autonomous free movement rights
4EU citizenship- Citoyens sans frontires? Advocate General Professor Dr. Juliane Kokott Durham
European Law Lecture 2005. A background discussion document was prepared for the panel which
analyses the Treaty articles, legislation and jurisprudence of the ECJ.
5See Case C-413/99Baumbast[2002] ECR I-7091, paragraphs 83-84 and Case C-148/02Zhu and
Chen [2004] ECR I-9925, paragraph 26.6
See Case C-148/02 Garcia Avello [2003] ECR I-11613, paragraphs 24 and 25. See also Case C-
224/98DHoop [2002] ECR I-6191, paragraph 29.
7One important measure is Directive 2004/38/EC on the right of citizens of the Union and their
family members to move and reside freely within the territory of the Member States ([2004] OJ
L158/77). This Directive sets out the regime applicable to citizens in the host Member State. It
contains provisions on, inter alia, residence documents and requirements, the recognition of
partnerships, equal treatment with nationals of the host Member State and the status of third country
national family members. This Directive together with Directive 2005/36/EC on the recognition of
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which stem from the concept of European citizenship and are an integral part of an
internal market based on the four freedoms of persons, goods, services and capital. TheEU legal framework thus enshrines the rights of the citizen to free movement.
The Practical Reality
2.5 The EU has been less successful and has, arguably, not given enough priority toensuring that this legal framework is applied in practice. As a result, free movement of
persons has developed less than the other three freedoms. There is an underlying tension
between the expectations of citizens who increasingly take free movement for granted
and expect the spirit of the Treaty and the legislation to be respected, and the practice ofnational authorities insisting more on the conditions and exceptions.
2.6 There is a disconnection between European law and the way it is applied byMember States, reflecting insufficient cooperation between the EU Institutions and
national authorities when it comes to enforcement. As a result, for example:
(a) The Citizenship Directive8 on free movement of persons has been so badlyapplied as to have effects opposite to those intended. The Citizenship Directivehas, incredibly, resulted in more, rather than fewer restrictions on free movement
of citizens and, in particular, has enhanced restriction on family members from
third countries. Whilst the directive seeks, following the case law of theEuropean Court of Justice, to narrow the grounds on which an EU citizen can be
expelled from a country, many of the implementing national rules actually seek toexpandon these restrictions. The Commission found that no single provision ofthe directive had been implemented correctly by all Member States.9
(b) Citizens often encounter problems accessing social entitlements because theyhave been poorly informed about their rights and, for example, fail to completethe right forms before leaving their home countries. In todays society, with more
and more people moving frequently in and out of different social securitysystems, the system of EU coordination can no longer deliver equitable results.
This is particularly the case for job seekers or those made redundant, for whom
professional qualifications ([2005] OJ L255/22 as amended by Council Directive 2006/100/EC of 20
November 2006) and Regulation 883/2004 on the application of social security schemes to
employed persons and their families moving within the Community (Regulation 883/2004of the
European Parliament and of the Council of 29 April 2004 on the coordination of social security
systems [Official Journal L 166 of 30.04.2004]) are the pieces of legislation that have a direct and
inter-related effect on the movement of Union citizens (see European citizenship: tied up in red
tape, prepared by the Citizens Signpost Service in 2009).
8Directive 2004/38/EC on the right of citizens of the Union and their family members to move and
reside freely within the territory of the Member States [2004] OJ L158/77.
9Report from the Commission to the European parliament and the Council on the application of
Directive 2004/38/EC on the right of citizens of the Union and their family members to move and
reside freely within the territory of the Member States, COM (2008) 840/3 of 10 December 2008,
page 3.
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accessing unemployment or other social benefits can be a prohibitive obstacle to
exercising their rights of free movement.
(c) Since free movement rights are guaranteed by a mix of European laws andnational implementing measures, citizens often find themselves caught up in red
tape, being asked to produce an excessive number of documents in original form
or authenticated copies and translations. The vetting of professionalqualifications, particularly when it is a question of access to posts in the public
service, can take months (even years) rather than weeks, preventing even the
attempt to access the labour market.
(d) A visible sign of the contradiction between the theory and the practice ofEuropean citizenship has been the recourse by most old Member States totransitional arrangements limiting access to the labour market to European
citizens from new Member States following the 2004 and 2007 enlargements.
2.7 Although the legal framework has been gradually improved by the introduction ofgreater rights for European citizens, ECAS (which provides advice to thousands ofcitizens and so is well placed to see the reality) does not see improvements on the ground.The old problems persist, often in the same countries, despite thousands of complaints
and even decisions by the courts. Problems connected with family law are now arising
with increasing frequency: child maintenance in case of divorce or recognition ofpartnerships registered in another Member State.
2.8 This disconnection between European and national perspectives reflects a moregeneral lack of political will on the part of Member States to embrace the aims of the
European Treaties (of which, after all, they claim to be the masters) and share
responsibility for making them work. Citizens are the main victims and pay the costs.
Others are deterred from taking advantage of their European rights. The number ofEuropean citizens living and working abroad in the EU remains low at 8.8 million even
with the enlargement to 27 Member States that is, below the level of over 18 millionlegally resident third country nationals. This has many causes, but one certainly is lack
of confidence in the EU as a defender of social rights. This is a challenge for the EU
Institutions and national authorities.
2.9 The gap between the spirit of the Treaties and the case law of the European Courtof Justice on the one hand and on the other hand the way people are treated on the groundis increasingly apparent and not just to specialists, thereby affecting the reputation of the
EU. Improved websites are giving citizens easier access to legislation and court
decisions. As a result they are coming forward with more difficult questions aboutenforcement which if not resolved will see their expectations disappointed. The
Commission has been right to promote slogans such as a Citizens agenda and a
Europe of results but the EU Institutions and national authorities must deliver now onsuch commitments.10 The improvement in the supply of information has made citizens
10Communication from the Commission: A Europe of Results - Applying Community law COM
(2007) 502 final.
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more aware of the gap between the theory and practice of European rights and therefore
increased the expectation that someone will take care of the problem. It is important tomeet this expectation.
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3. THE ROLE OF THE EUROPEAN INSTITUTIONS3.1 Proposing measures to improve enforcement raises immediately the question ofwho is responsible. Institutional reforms are lagging behind legal developments,particularly the case law of the European Court of Justice, making European citizenship a
reality and free movement a central and directly applicable right, from which other rights
stem. Moreover, the scope of EU activity has increased with every Treaty revision, yetthe original judicial system remains unchanged. This is therefore an area where there is
scope for reform. The respective roles of the legislative institutions should be considered.
3.2 Reforms should be put in place around a common programme decided on betweenthe institutions and the Member States. There has to be sufficient political will to make
enforcement, and not just the adoption, of legislation a priority.
3.3 With this in mind, we therefore make the following suggestions considering inturn the role of each of the legislative Institutions. Not only should there be recognition
of the need for proper enforcement of European citizens rights but responsibility for this
enforcement should also be expressly allocated within the institutions.
The European Commission
3.4 At an early stage in its work the panel considered that there should be aCommissioner with specific responsibility for the enforcement of European citizens
rights and the Charter of Fundamental Rights.
3.5 At present, despite the Commissions praiseworthy efforts to promote the conceptof the one-stop shop and recent progress to consolidate legislation round the concept ofEuropean citizenship, responsibility for European rights is scattered across different
Commission directorates. There are different interlocutors depending on whether theissues are to do with free movement and residence, social rights or recognition ofqualifications, all of which are of course interconnected for the citizen.
3.6 We accept that it would not be desirable to put all the scattered units dealing withcitizens together in one department as this would discourage specialisation. On the other
hand, citizens need a personal, not just a virtual, anonymous focal point. The services to
help them in turn need stronger political advocacy and a higher profile within theCommission, from which should follow greater synergy and improved resources to deal
effectively with enforcement.
3.7 A new portfolio of justice, fundamental rights and citizenship has been announcedin the new Commission due to start work in February 2010. 11 Although this is a very
encouraging step, it remains to be seen how the role of such a Commissioner will bedefined in practice. Indeed, in order to improve enforcement, the new Commissioner
11Viviane Reding has been nominated for the role of Commissioner for justice, fundamental rights and
citizenship in the next Commission led by Jos Manuel Barroso. Viviane Reding has also been given
the role of Vice-President, thereby ensuring sufficient political weight within the Commission.
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must be able to work closely with counterparts in the European Parliament and the
Council of Ministers (Council).
The European Parliament
3.8 We believe that the European Parliament, directly representing the peoples ofEurope, should become more involved with the practicalities of enforcement in the
interests of citizens. At the moment, it is left to the individual committees and
rapporteurs to decide to what extent they regard their role in debating and negotiating
legislation, as also extending to its implementation.
3.9 In our opinion, the attention of the Parliament as a whole should be engaged byholding an annual plenary debate on free movement of persons and the application of the
legislation which concerns different committees. This might be combined or linked with
the examination of annual reports from the Petitions Committee, the Europeanombudsman and that of the Commission on the enforcement of EU law.
3.10 The European Parliament should also consider having a Vice Presidentresponsible for European citizens rights and the Charter of Fundamental Rights.
The Council of Ministers
3.11 As far as we can see, the Council, as the Institution grouping the governments ofMember States, is currently doing little or nothing about the enforcement of citizens
rights. The report by Alain Lamassure for the French Presidency was an important
innovation in suggesting that the Council of Ministers should have such a role.12
But theCouncil, and in particular the European Council, could give real and meaningful political
impetus by receiving and acting on reports on enforcement and benchmarking naming
and shaming the performance of Member States and setting targets.
3.12 Now that the Lisbon Treaty has been ratified, there will be a President of theCouncil who might appear to be a rather distant figure from the point of view of thecitizen. This could be overcome if he is recognized as having a special responsibility for
enforcement of European citizens rights.
3.13 Finally, successive presidencies of technical councils should work to a multi-annual programme to remove the remaining obstacles to free movement of persons.
12Lamassure A, Le citoyen et lapplication du droit communautaire, rapport au Prsident de la
Rpublique, (2008) : http://www.alainlamassure.eu/liens/817.pdf.
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4. PREVENTIVE ACTION4.1 A policy of prevention is better than cure involves considering enforcementfrom the outset. This should be the case particularly with the negotiation of legislationwhich has a direct impact on citizens. A shift in enforcement policy is therefore needed
to ensure that the focus is on ensuring that legislation is correctly applied.
4.2 There is more political will to see legislation adopted than to see it properlyenforced. As a result, problems facing citizens can often be traced back to compromises
in the drafting of legislation, when their interests were overlooked. This means that wayshave to be found of bringing the end-users more into the process.
4.3 It is important to recognise that citizens do not have the resources available toother stakeholders to influence the legislative process and to adapt to different national
implementing measures. Choosing the right form of legislation is particularly important.Regulations are directly applicable and are appropriate to some cases such as
coordination of social security entitlements. Directives, which establish common
objectives but leave it to Member States to decide on how they should be reached andincorporated in national law and administrative practice, are more appropriate in areassuch as the recognition of professional qualifications.
4.4 There is tension between the need to present citizens with clear and simplesolutions appearing in the same form across the Union, and the Unions preference for
directives which leave latitude as to how they are applied by Member States. Toimplement European citizens free movement rights, common objectives need to be more
clearly spelt out, even if the means by which they are attained may differ.
4.5 A number of preventive measures are therefore recommended as follows:(a) Impact assessments of the effects of legislation on citizens;(b) Improved cooperation between the Commission and Member States to ensure a
transparent and effective transposition of measures into national legislation;
(c) Increased communication between the European Parliament and nationalparliaments to monitor the enforcement of legislation and hold defaulting Member
States to account;
(d) Information campaigns to increase citizens awareness of their rights; and(e) Training programmes for officials to improve their knowledge of European legal
developments affecting citizens rights.
4.6 These preventive measures, together, will help to put in force a policy ofprevention is better than cure by monitoring the enforcement of rights at the nationallevel.
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Impact assessments
4.7 Assessments of the impact of legislation on citizens should be made at an earlystage. In drawing up legislation, there is often an absence of evidence of how manypeople are likely to be affected and how a particular reform, such as the abolition of
short-term residence cards, will be perceived. This involves better consultation, feedback
from information and advice services, opinion surveys, and the use of citizensdeliberations. A variety of channels of communication should be used to gather
evidence. The traditional on-line consultation of stakeholders has been shown to be
insufficient.
Cooperation between the Commission and Member States
4.8 Once a Directive has been adopted, there should be closer cooperation betweenthe Commission and the authorities of the Member States as to the legislative measuresthat will be necessary, the relevant administrative provisions to be put in place and the
communication plan to inform citizens of their rights. This could include the issue of
guidelines by the Commission, and mutual exchanges and meetings between theCommission and the authorities of Member States before national implementationmeasures are drawn up.13 Ideally, there should be an obligation on Member States to
circulate draft transposition measures well before the deadline for implementation of the
European legislation.
4.9 The key aim of these procedures is to ensure a greater quality of cooperationbetween the EU Institutions and the Member States, thereby ensuring an effective
communication and enforcement of both the spirit and the letter of the legislation being
implemented. If effective, two-way communication and cooperation can ensure that the
risk of wrong, ambiguous or faulty implementation is avoided.
The role of the European Parliament and national parliaments
4.10 The European Commission should be required, in relation to each legislativemeasure, to present a report (or reports) to the European Parliament concerning theprogress made by the Member States in transposing and enforcing that measure. The
Parliament should also have the right to call back a legislative measure for further
examination and debate if there is evidence of serious problems of transposition innational legislation.
4.11 National parliaments have a role in holding their authorities to account for theway they implement citizens rights. It is important that the European Parliament should
be aware of the point of view of national parliaments. In parallel with Commission
meetings with the executive authorities of Member States, there should be a regular
13In the case of the services directive 2006/123/EC, due to enter into force on 28 December 2009, the
European Commission has issued detailed guidelines and held 10 meetings with Member States.
Such good practice should be transposed to citizens free movement rights. In the case of the
residence directive 2004/38/EC two meetings with Member States and guidelines took place only
after the date of entry into force.
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process of communication and cooperation between the European Parliament and
national parliaments. Moreover, the Lisbon Treaty provides for a more enhanced role fornational parliaments in scrutinising EU legislation.
Information campaigns
4.12 All directives which have an impact on citizens should contain a clause requiringMember States to launch information campaigns.
4.13 The Citizenship Directive contained such a clause14 calling for generalinformation and awareness campaigns. The problem with this welcome innovation was
that the clause was not sufficiently prescriptive. As a result ECAS found that the qualityof information on national websites differed. Sometimes it was fragmented and difficult
to find in the first place whereas in other cases, it was clear and precise. Sometimes, it
was available in the language of the main countries of origin of EU migrants. In othercases, it was available only in the national language(s) of the Member State concerned,
and inaccessible to citizens of other Member States.15
4.14 ECAS also found that the quality of service in the administration for follow-upinquiries differed greatly. In some cases, requests would always be addressed whereas in
other cases, they would never receive any response.
Training programmes
4.15 The need to improve information for the public calls for the training of officialsinvolved with face-to-face or on-line delivery of free movement rights. In some areas,such as social security, the responsibilities are centralised, but when it comes to the
recognition of qualifications and in particular residence rights, responsibilities are carried
out at a more regional, even local level in some instances, by authorities separate fromnational, regional or local government (e.g. professional bodies). Problems often arise
because the official in the national administration is unaware of European legal
developments.
4.16 A training programme in cooperation between the Commission and MemberStates should be launched.
14Article 34 of Directive 2004/38/EC on the right of citizens of the Union and their family members to
move and reside freely within the territory of the Member States [2004] OJ L158/77.
15The Committee of Legal Affairs of the European Parliament commissioned its own study by ECAS
on the implementation of this measure entitled Comparative study on the application of Directive
2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move
and reside freely within the territory of the Member States (2009) PE 410.650.
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5. INFORMATION, ADVICE AND ACTIVE HELP5.1 The Commission has made progress in developing what might be called a cascadeapproach:
(a) citizens should be informed first of their European rights;(b) in case of doubt, they then need advice about how to enforce them; and(c) if that does not work, they can find active help to overcome the barriers to free
movement.
5.2 This approach takes account of the reluctance of citizens who need to accesssocial entitlements or see their qualifications recognised, to embark on more formalcomplaints procedures against an administration in a country other than their own or to
take a case to a court.
5.3 Many problems can and should be solved informally. Indeed many issues stemfrom a misunderstanding of European citizens rights, with citizens tending to eitherover-estimate or under-estimate the scope of these rights. At the same time national
administrations often stress the exceptions rather than the spirit of citizens free
movement rights.
5.4 Eurobarometer polls suggest that whilst 80% are aware of European citizenship,only 20% are knowledgeable about their European rights. Whilst rating highly thedemand for more information, the vast majority experience difficulty in finding the
correct sources in the first place.16
5.5 The key requirement is that, at different geographical, administrative or otherlevels (depending on where responsibility for implementation lies), there should be a
single source of reliable information, combining a description of European rights with anup-to-date, step-by-step guide on how they are applied.
5.6 Below are the three main action points to ensure proper communication withcitizens on the topic of their European rights:
(a) Improving access to information through the creation of a one-stop shop;(b) A greater availability of advice; and(c) A faster and more efficient active help for European citizens.5.7 These three action points are further explained below and will, if properlyimplemented, help to achieve a better understanding, and ultimately better enforcement,
of European citizens rights.
16See for example, European Union Citizenship Analytical report, The Gallup Organisation /
European Commission (2008): http://ec.europa.eu/public_opinion/flash/fl_213_en.pdf.
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Information
5.8 The current Commission made progress in promoting Europe Direct17 as abrand and the first port of call for all inquiries through e-mail or a single free phonenumber for the EU as a whole. This should be merged with Your Europe18 and other
services such as Eures19
so that there is a single access point. The entry into force of the
Lisbon Treaty which will make the Charter of Fundamental Rights legally bindingprovides an opportunity for the EU Institutions and Member States to launch a
coordinated campaign to inform European citizens about their rights.
5.9 At the same time, there is a need for a one-stop shop to put an end to the scatterednature of the sources of information, which is in itself a barrier to accessing information
and a source of confusion to citizens. There are also a variety of different contact pointsset up under European legislation at the national level for social security, the recognition
of academic and professional qualifications which can add to a confused picture for
citizens. Even in areas where tasks are closely related there are separate informationpoints. Some contact points could therefore be merged and all at least linked to the one-
stop shop across all areas of policy making which are relevant to European rights. Forexample, each youth, educational or training programme tends to have its own
information offices across EU-27, which is not sustainable.
5.10 The European health card20 could be developed to become a European citizenshipcard covering not just health but social security rights more generally. This idea was first
recommended by a citizens panel brought together by ECAS during 2006, the year of
workers mobility.
5.11 The dilemma is how to promote the merits of the one-stop shop while alsomaintaining specialisation without giving citizens the impression that they are being
passed on from one service to the next. In our opinion, this is a problem to whichappropriate political solutions could be found by a Commissioner responsible for the
enforcement. Synergy among services for job-seekers, consumers, students, users offinancial services, researchers, the cultural sector, and businesses could result in more
sharing of scarce resources.
Advice
5.12 When citizens contact Europe Direct they are passed on if they need furtheradvice to the Citizens Signpost Service (CSS)
21run by ECAS or one of the specialised
17 See: http://ec.europa.eu/europedirect/.
18See: http://ec.europa.eu/youreurope/.
19Eures is the European job mobility portal which provides priority advice for job seekers.
See: http://ec.europa.eu/eures/home.jsp?lang=en
20European Health Insurance Card (EHIC) first introduced in 2004 allow citizens to obtain the same
access to public sector health care (e.g. a doctor, a pharmacy, a hospital or a health care centre) as
nationals of the country they are visiting. This has been achieved through cooperation at EU level.
21See: http://ec.europa.eu/citizensrights/front_end/index_en.htm.
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networks mentioned above. This free advice service consists of a team of 60 legal
experts dealing with 10,000 questions per year in all official languages. The data base isthe largest single source of evidence of citizens preoccupation and evidence of barriers
to free movement, which could well be linked to other sources to improve the quantity
and quality of feedback reports.
5.13 Europe Direct is also the brand name of the Commission delegations in MemberStates. For more difficult cases, face-to-face confidential and personal advice is necessary
so that a qualified lawyer or advisor can go through the file of the complaint with the
citizen and advise him or her on suitable solutions and write the appropriate letters on his
or her behalf.
5.14 Such advice on European rights should be available in all major regions andcities. This could be achieved by creating a network of European advisors, available in
the Commission delegations in capitals and major cities and elsewhere through national
citizens advice bureaux and other NGOs. Such a network should also extend toneighbouring and applicant countries round the EU.
Active help
5.15 Advice services are in general limited to referring citizens on to other bodies ornational authorities to solve their problems. Sometimes, however, these are the same
authorities which are responsible for the difficulties in the first place and who also lack
the necessary know-how in practice. Citizens either become discouraged or consider thecomplaints procedures, described in the next section, as being disadvantage of being too
formal and lengthy to solve most problems.
5.16 To some extent, the gap between advice and active help can be reduced by therelevant advice services helping citizens to draft letters to the authorities or interveningon their behalf.
5.17 SOLVIT22 is the best example of a problem-solving approach and involves theCommission and a cooperation system among Member States. A complaint to onenational centre triggers, if the centre agrees to take up the case, cooperation with the
centre in the other Member State involved. In this way, a Danish teacher having
difficulties with her qualifications being recognised in Spain involves the Danish andSpanish centres in attempting to find a solution.
5.18 The advantage of this system is that it is high profile and action oriented. BecauseSOLVIT is a European network it can cut through red tape and an over-hierarchical
approach, which often complicates and slows down problem solving at a national level.
The disadvantage is that the system and the take-up of complaints is voluntary so that it
22SOLVIT is an on-line problem solving network, set up in July 2002, in which EU Member States
work together to solve without legal proceedings problems caused by the misapplication of Internal
Market law by public authorities (See: http://ec.europa.eu/solvit/).
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6. FORMAL COMPLAINTS AND PETITIONS6.1 In this section, different possibilities for citizens to voice their concerns with theEuropean Union are considered.
6.2 The most striking feature of the more formal channels of communication betweencitizens and the European Union is that they are underused. Annual reports show that the
Petitions Committee in the European Parliament and the European Ombudsman handle a
few thousand cases. The Commission has 3200 files including complaints. From the
perspective of the administration, that is a heavy workload but it is a drop in the ocean bycomparison with the total number of complaints from a population of 500 million people.
Systems set up with citizens in mind are still far from being sufficiently utilised by them.
By comparison, organised interests tend to be much better informed and to make use ofthese redress mechanisms.
6.3 It would be useful to have an inter-institutional step-by-step guide of the formalcomplaints mechanisms, which should be well promoted. The objective should be to
increase the access of the individual citizen to the complaints mechanisms and to ensurethat complaints or petitions are sent to the right address in the first place.
6.4 The three routes for complaints which are available to European citizens are asfollows:
(a) Complaints to the Commission;(b) Complaints to the European Ombudsman; and(c) Petitions to the European Parliament.6.5 Below are set out in further detail the three complaints procedures and oursuggestions to improve access to these procedures for the European citizen, through bothincreased awareness of the various options and a faster, more efficient resolution of
complaints.
Complaints to the Commission
6.6 In the European Unions decision-making process on enforcement, the pivotalinstitution is the Commission. Pursuant to Article 211 of the EC Treaty, the Commission
must ensure that the provisions of this Treaty and the measures taken by the institutions
pursuant thereto are applied. Article 226 of the EC Treaty further provides that if the
Commission considers that a Member Statehas failed to fulfil an obligation under thisTreaty, 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.
6.7 Complaints from citizens sent directly to the Commission, or as a result ofpetitions to the European Parliament and then sent on to the Commission, seek to invoke
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the latters quasi-judicial role in deciding whether or not to embark on infringement
procedures against Member States. The other route for citizens is to take a case to anational court in the hope that the court will refer questions relating to the application of
European Law to the European Courts in Luxembourg, pursuant to Article 234 of the EC
Treaty.
6.8 The Commission has put in place a system of prioritisation concerning thecomplaints it receives. This is, at least in part, a response to the issue of resources. The
problem with applying this approach to the complaints of citizens who are not trained in
EU law and normally do not seek legal advice, is that it is difficult at the outset to assess
how serious the complaint is.
6.9 This is why the European Parliament has questioned priority criteria and askedwhether such an exercise is really needed and does not risk reducing excessively the
scope of infringement procedures, for which the Treaty does not provide any hierarchy.
It called on the Commission to evaluate whether a simple increase in the availableresources in the most exposed Directorate General would not be a preferable solution to
improve the capacity to follow-up complaints.23
6.10 Whilst we accept that some degree of prioritisation is inevitable after examiningthe merits and chances of success in solving individual complaints, this should not mean
that other complaints are simply abandoned without adequate examination. TheCommission, like the most advanced administrations and companies, should positively
welcome complaints because they are an important reflection of peoples concerns about
how Europe functions on the ground and are a means of early detection of problems ofenforcement of EU law. Most important of all, prioritisation should not be an alibi for
refusing to deal with complaints that are politically sensitive or administratively
inconvenient.
6.11 In the same way as we would want to see the Commission commit to a 10 weekdeadline to settle complaints informally, we would also like to see the Commissionsetting itself the target of solving formal complaints more quickly whenever possible. It
is difficult to believe that most citizens complaints require complex investigations
justifying a delay of up to one year, which is the current target. In the area of freemovement of people it is not generally as difficult as with other internal market freedoms
to understand the nature of the complaint and where the solution lies.
6.12 The European Court of Justice has recognised that the Commission has thediscretion, which cannot be challenged, to decide whether or not to bring infringement
proceedings. The quid pro quo for this freedom of action should be for the Commissionto be more open with the complainant with regard to the grounds for acting or refusing to
do so. This discretionary power should not be an excuse for inaction. On the contrary the
panel would like to see the Commission make more use at an early stage of its power to
23Report on the Commission's 21st and 22nd Annual reports on monitoring the application of
Community law (2003 and 2004) (2005/2150(INI)), A6-0089/2006. Rapporteur: Monica Frassoni.
See point 11.
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start infringement procedures. The European Ombudsman can deal with complaints
concerning the Commissions handling of infringement procedures but, while this has ledto greater openness and accountability, it should be considered a measure of last resort.
Complaints to the European Ombudsman
6.13 Every EU citizen has the right to submit a complaint to the EuropeanOmbudsman. However, what many complainants do not realise is that the mandate of the
Ombudsman is limited to instances of maladministration by the Institutions and bodies of
the EU, and excludes maladministration by Member States when they apply Europeanlaw. To help resolve complaints he receives about Member States administrations, the
European Ombudsman works with the relevant national or regional Ombudsman from the
European Network of Ombudsmen as they are competent to deal with such cases.
6.14 It is better, however, if the complainant finds the right address first time around.To help individuals identify the most appropriate body to turn to, the European
Ombudsman has now put a step-by-step guide on his website.24 In this way, complainants
should be better directed to the right complaint-handling body. Over 25,000 individualshave received advice through the guide since it was launched in January 2009.
Petitions to the European Parliament
6.15 Members of the European Parliament (MEPs) are not sufficiently regarded bythe public as defenders of their rights, and as a result not all see themselves in such a role.Yet, when MEPs receive letters from individual citizens rather than organised interests
and lobbies, they do give them attention and often their support can be very effective in
persuading national administrations or the Commission to act.
6.16
Every EU citizen has the right to address a petition to the European Parliament ona matter that is within the Communitys fields of activity and which affects him, her or it
directly.25 Selected petitioners are heard by the Committee, which can be their advocate
with the Commission and national administrations. There is no doubt that a petition, often
used as a way to back up a complaint to the Commission, can be effective. The advantageof the procedure is that it is free, transparent, open to the public at all stages, and often a
way to remove barriers to the exercise of European rights.
6.17 Citizens should be made more aware of the grounds on which they can submit apetition.
26The European Parliament should organise a special information campaign on
the right to petition, which is underused, and better known in some countries than in
others.
24The interactive guide relates goes through the procedure for requesting information or lodging a
complaint. See: http://www.ombudsman.europa.eu/atyourservice/interactiveguide.faces.
25Article 44 of the Charter of Fundamental Rights of the European Union (OJ C364, 18.12.2000).
26Lamassure A, Le citoyen et lapplication du droit communautaire, rapport au Prsident de la
Rpublique, (2008) : http://www.alainlamassoure.eu/liens/817.pdf. See pages 92 and 93.
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Access to the European Courts in the last resort
7.8 Citizens find it difficult to comprehend that they cannot bring an action directlybefore the European Courts in Luxembourg to defend their rights but first have to gothrough a national court. In theory, it is legitimate for a citizen or group of citizens to
expect to be able to go to the European Courts in the event that all other remedies both at
a national and European level have been exhausted, in order to avoid situations ofimpasse and denials of justice. The fundamental right of citizens to an effective remedy
in the event that one of their rights and freedoms guaranteed by the law of the Union
has been violated is now codified in the first sub-section of Article 47 of the Charter of
Fundamental Rights.
7.9 On the other hand, it is equally important not to undermine the work of theEuropean Court of Justice as the Institution most protective of European citizens rights
by opening the floodgates to individual litigation. It should be borne in mind that a right
of direct access to the European Court of Justice for the individual citizen would imply anequivalent right for all natural and legal persons including multinational companies.
7.10 The issue cannot be solved without further Treaty reforms and changes in thejudicial architecture. The Lisbon Treaty goes some way towards resolving the problem by
granting a direct right of access to the European Court of Justice in the case of regulatory
measures that are of direct concern to the applicant and do not require implementingmeasures.28
The need for an accelerated procedure
7.11 A constant concern with enforcement actions is the duration. In the CommissionCommunication entitled A Europe of results, applying Community law, it is
acknowledged that 70% of complaints can be solved informally, but that if they gofurther, the process can be lengthy.
29Another problem is that because of the length
of this procedure, the issue will only be resolved once the damage to the interest of the
citizen has already taken place. Therefore, is it is clear that a satisfactory system should
be maintained to resolve the problems encountered by citizens when exercising theirrights before it may be necessary to launch infringement proceedings.
7.12 We believe that there should be an accelerated procedure whereby theCommission could, in the context of infringement proceedings, apply to the European
Court of Justice for an injunction requiring a Member State to lift a barrier to the free
movement rights of European citizens. It might be possible to provide for such a
procedure by amendment of the Statute of the Court without requiring a Treatyamendment.
28Article 263, para. 4 of The Treaty on the Functioning of the European Union, OJ C115, 09.05.2008.
29Communication from the Commission: A Europe of Results-Applying Community law, COM
(2007) 502 final. See page 3.
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A legal team
7.13 In this Report we have recommended the appointment of a Commissionerresponsible for enforcement of European rights and the Charter. Taking into account thataccording to the European Court of Justice, Citizenship of the Union is destined to
become the fundamental status of nationals of the Member State,30
such a responsibility
should be more than just a symbolic focal point. The Commissioner should have acoordination role to create a one-stop shop, but should also be backed by his or her own
legal team to take up individual complaints and represent and protect the citizens
interests during the procedures in the Commission and with Member States.
Representative citizens rights committees
7.14 Committees and associations representing citizens have responsibilities as well asrights in the process of enforcement of citizens rights. European consumer law alreadyrecognises the possibility for representative organisations to intervene in cross border
disputes. This possibility should be recognised more generally in EU legislation,
governing free movement of persons.
7.15 Associations should be encouraged to group together individual complaints andpresent them to the EU Institutions or in national courts. A similar proposal has beenmade by ECAS and supported in the European Parliament for the creation of a European
Civil Society house with the capacity to improve advice to citizens about their European
rights and to solve their problems.
30Case C-184/99 Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve,
20/09/2001, para.31.
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8. BUDGETARY CONSIDERATIONS8.1 We have not examined the resource implications of our proposals because that isa task for the EU Institutions and national authorities. Our expertise as a group is focusedon how to make the non-judicial and judicial means of redress for European citizens more
effective.
8.2 That said, we recognise that if our recommendations are accepted in principle, thebudgetary aspects must be examined. The group does not take the view that, when it
comes to fundamental European citizenship rights, the necessary resources in terms ofstaff and budget must, as a matter of principle, be found. That would be a purely
theoretical view which would be impossible to follow in practice as there are bound to be
compromises and trade-offs. On the contrary, there should be a cost-benefit analysis ofall the channels of communication between the EU and citizens at different geographical
levels.
8.3 Whilst, undeniably, better enforcement would involve cost, there would also bebenefits that would have an economic, and even a monetary value:
(a) The recommendations in this Report are resource intensive when it comes topreventive action, involving more pro-active roles for the Commission andenhanced cooperation among national authorities. However, when directives are
badly enforced, it involves years of effort, often further legislation, expensive
litigation, and above all the loss of good will and support for the EU, before theapplication of the legislation is put right.
(b) A problem solving culture, if achieved, will result in more complaints beingsolved more quickly. In the area of free movement of people it is not generally as
difficult as when it comes to other internal market freedoms to understand thenature of the complaint and where the solution lies. However, the longerindividual complaints remain without solution, the more difficult and time
consuming they become to resolve.
(c) Where citizens are denied access to employment or social benefits, the cost inextra staff and resources to remove them more quickly must be weighed against
the costs of non-compliance that fall on citizens, their families, employers andSMEs.
(d) There are too many information and advice services with a relatively highproportion of fixed costs because the numbers of clients they deal with is only a
fraction compared to those who do not find their way to their door. The
recommendations for institutional reforms and the one-stop shop should be usedto bring some services together and achieve economies of scale.
(e) In the last resort, dealing with citizens is a responsibility for public authoritieswhich administer rights and entitlements or for law enforcement bodies and
courts. This is a task in which many authorities can share, at least at thepreliminary stages of examination or solving simpler individual problems, with
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citizens advice organisations or recognised associations. In turn such non-profit
organisations can assist in rationalising better enforcement by grouping togetherindividual complaints.
8.4 The most important change recommended by the Panel would be for theCommission to put far more resources into a proactive, intense effort at preventive action
to improve the enforcement of new European legislation and its explanation to citizens.In this way, long drawn out complaints and infringement procedures could be avoided.
8.5 However, other recommendations by the Panel do not necessarily require moreresources but better use and rationalisation of those that exist through more synergy and
the merging of different information and advice services.
8.6 Indeed, many of the suggestions made in this Report simply involve a change inthe approach to European citizens rights. To achieve this shift in enforcement policy, itis possible to use the systems already in place to simply improve on them, creating
economies of scale through greater efficiency. The ultimate cost of poor enforcement is
the undermining of European citizens rights; this cost is far greater than any resourcesthat might be needed to put in place the recommendations set out in this Report.
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9. CONCLUSION 10 FINAL RECOMMENDATIONS9.1 In light of the above, 10 recommendations can be made in order to significantlyimprove on existing procedures and introduce new measures in order to ensure a betterenforcement in practice of the European citizens rights guaranteed within the legal
framework:
1. Introduction of a new Commissioner specifically responsible for citizenship
rights and the Charter
We recommend that a senior Commissioner should be made responsible for the
protection and development of European citizens rights and the Charter ofFundamental Rights. The Commissioner should work closely with a team of
senior officials appointed to handle individual complaints.
2. Improved cooperation between the Institutions and the Member States for
better implementation of the law
We recommend that the EU Institutions should work together more closely to
ensure the proper implementation and enforcement of legislation by settingtargets, holding annual debates and peer reviews. An action plan and timetable
should be agreed among the Commission, the European Parliament and the
Council to remove barriers to free movement of persons and apply EU law more
effectively. The Institutions should actively involve Member States and theircitizens groups in the process.
3. A one-stop shop to enable citizens to understand and exercise their rights
We recommend that the EU Institutions and the Member States should worktogether to establish a well structured and highly visible network of one-stop
information, advice and assistance centres, focusing on European rights and how
they are applied. Concentrating on a single access point will facilitate thedispensing of information, advice and help, appropriate to each geographical
level, both electronically and face-to-face, across the 27 Member States as well as
in applicant neighbouring and other third countries.
4. A shift in enforcement policy from reacting to complaints to ensuring that
legislation is correctly applied in the first place
Prevention is better than cure! New legislation in relation to citizens rights,
particularly in the case of directives, should impose specific obligations on theCommission and Member States to coordinate the correct implementation of
legislation. Training of officials can also help pre-empt problems. The EuropeanParliament should scrutinise and shadow these efforts. The Commission should be
required to make regular reports on the transposition and enforcement of
legislative measures.
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5. Introduction of transparency as a powerful instrument for enforcement
All proposed measures should be assessed in advance for their likely impact on
citizens, the findings of which should be made public. Also, EU legislation inforce should contain specific requirements as to how national authorities should
inform and advise citizens. There should be a legal obligation to inform citizens
of their rights.
6. Faster resolution of citizens problems in a citizen-friendly way
All of the bodies responsible for resolving citizens problems the Commission,
other EU Institutions and bodies, as well as national authorities should workaccording to a common standard of commitment to citizens in which problems
will be solved in no more than 10 weeks. It is accepted that formal complaints,
petitions and requests to the Ombudsman will take longer, but the target of oneyear should be reduced whenever possible.
7. Better complaint-handling by the Commission
The Commissions past policy of prioritisation of complaints should not lead tothe abandonment of complaints that have not been given priority. Where
complaints are made, the Institution concerned must regularly provide updated
information on the progress and status of the complaint to the complainant.
8. Holding defaulting Member States to account
The Commission should make more robust and timely use of its power to start
infringement procedures against Member States. National courts should, where
possible, apply accelerated procedures and injunctions to lift illegal barriers to theexercise of free movement rights, and to protect the right to access to justice,
particularly when significant numbers of citizens are denied access to
employment or social entitlements. We recommend that consideration be given toempowering the European Courts to issue such injunctions.
9. More effective complaints procedures in the right to petition the European
Parliament and to make complaints to other bodies
Greater efforts are needed to encourage citizens to take advantage of the currently
underused channels of complaints. Citizens should be better informed of formal
petitions and complaints procedures, such as petitions to the European Parliament,
or complaints to the Commission and to the European Ombudsman, and should beredirected to other bodies when appropriate.
10. A wide-ranging information campaign on citizens rights
One of the recurring problems with the enforcement of European citizens rights
is the lack of awareness of the existence of those rights and what they entail. The
entry into force of the Lisbon Treaty, which will result in the Charter of
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Fundamental Rights becoming legally binding, demands a new wide-ranging and
sustained information campaign aimed at enabling citizens to become more awareof their rights. As a component of this campaign the EU should signal that it will
give greater political priority and specifically more resources to make Europe
work for the citizen.