mind the gap report

8/9/2019 Mind the Gap Report

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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.

mind the gap report

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