Call for papers

Call For Papers – The Thousand Faces of the Four Freedoms

KSLR European Law Blog hereby invites you to submit abstracts on the topic of  “The Thousand Faces of the Four Freedoms

The EU internal market – the embodiment of the four fundamental freedoms of goods, services, persons and capital – has arguably been one of the EU’s most successful and indeed influential constructs. However, like most EU concepts, it is troubled by divergent interpretations. This has led to great debate by various commentators, and it is these plentiful widespread arguments to which we seek discussion for the blog. Articles and case comments on any areas related, directly or indirectly, with any one of the EU’s four freedoms are welcomed.

Please submit abstracts of no more than 250 words by 4 November 2013 to adrienne.m.yong@kcl.ac.uk and agne.limante@kcl.ac.uk. We only accept abstracts relating to EU law.

Authors of selected abstracts will be informed within two weeks. A full paper (1,500 to 2,000 words) should be submitted by 9 December 2013. The style guidelines may be found at http://kslr.org.uk/blogs/europeanlaw/about-us/. The articles resulting from selected abstracts will be posted on KSLR European Law Blog website.

The call for papers is open to submissions from students and professionals from the UK and abroad but only specific to EU law.

Please email the above addresses if you have any further questions. We look forward to hearing from you!


KSLR EU Law Blog is a blog run by the students of the King’s College London and forms a part of the KCL Student Law Review. The blog is an informal academic forum in which law students and professionals express their opinion EU law issues and are informed about recent developments in EU law. You can like us on Facebook or follow us on Twitter @EUKSLR

Article

Energy Efficiency in EU law: A Conundrum?

 

Gianni Lo Schiavo

LL.M., College of Europe

PhD Candidate, the Dickson Poon School of Law, King’s College London

 

1. Introduction

Energy efficiency constitutes the third pillar of the “20+20+20” initiative of 2009 aimed at reforming climate change and energy policy by 2020 in the European Union (EU)[1]. The adoption of the Commission’s proposal on a directive for energy efficiency by the Council in October 2012[2] and its publication on 14 November 2012[3] are the ultimate achievements of the EU in the field of energy efficiency.

The Directive repeals two directives on energy efficiency[4] and is intended to attain the target of “20% primary energy savings in 2020”.[5]

This article aims at analysing the most important developments contained in the Directive, taking into account their impact in light of the 2020 target.

 

2. Energy efficiency and EU law

Energy efficiency is not defined in the European Treaties. The only reference to it is contained under the new Article 194 TFEU included by the Lisbon Treaty.[6] This provision, establishes that, among other objectives, the EU promotes energy efficiency. This is not a new objective of EU policies.[7] However it is only with the new “20+20+20” initiative that energy efficiency has acquired a primary role in EU policy-making.

 

2.1 The “20+20+20” initiative and energy efficiency

EU law has already pioneered energy efficiency in the 90s.[8] More recently, energy efficiency has acquired more importance. Already in a 2006 Communication, the Commission foresaw a number of measures to achieve the 20% increase in energy efficiency.[9] However, it was only with the “20+20+20” initiative that energy efficiency has assumed a central role. Following the 2007 Spring European Council conclusions,[10] the European Commission adopted the seminal EU Climate and Energy Package in 2009.[11] It establishes a number of proposals which aim to achieve three objectives by 2020: the reduction of greenhouse gases emissions by 20%, the increase in the use of renewable energies by 20% and the improvement in energy efficiency by 20%. The reference year to achieve these objectives has been set in 2020.

Hence, energy efficiency constitutes one of the three pillars of the initiative and aims at saving “the EU some € 100 billion and cut emissions by almost 800 million tonnes a year”. [12] As part of this pillar, the Commission published a Communication[13] in 2008 named “Energy Efficiency: Delivering the 20% Target” which contained specific measures to be addressed to achieve the target.[14] A strong emphasis in the document was put on the obstacles to energy efficiency improvements consisting in “the poor implementation of existing legislation, the lack of consumer awareness and the absence of adequate structures to trigger essential investments in and market uptake of energy efficient buildings, products and services” and the ways to overcome them in the near future.

Notwithstanding the ambitious programme put forward by the Commission, current achievements have not been as effective as hoped. As shown by the European Council Conclusions of 4 February 2011,[15] the 20% energy efficiency target is currently not on track and further measures are needed in order to achieve the energy efficiency goal.

 

2.2 The Directive on energy efficiency

The Commission made a legislative proposal on a Directive on energy efficiency on 22 June 2011 on the basis of Art.194(2) TFEU. As stated in the Impact Assessment, the policy choices followed by the Commission were three: set indicative targets to be achieved by the Member States, evaluate the nature and impact of individual policy measures, and extend the scope of the two former instruments to be merged into one directive. Overall, according to the Commission, these policy objectives were favoured with a view to achieve strong energy savings and reinforce action for energy services.

After first reading amendments, the European Parliament and the Council approved the proposal in October 2012. The directive has been published on 14 November 2012. According to Art.28, Member States shall transpose the Directive eighteen months after its entry into force. So the delay of transposition is set by the end of the first half of 2014.

The directive is divided into four main chapters: the first on subject matter, scope, definitions and energy efficiency targets; the second on efficiency in energy use; the third on efficiency in energy supply; the fourth on horizontal provision; and the fifth on final provisions. In the preamble, the Directive states a number of targets which the directive aims at achieving.

Through referring both to the European Council Conclusions of 4 February 2011[16] and to the 2011 Energy Efficiency Plan,[17] the Directive recalls that Member States are not yet on target to achieve the 2020 energy efficiency goals. On the contrary, these goals require that Member States set strict indicative national energy efficiency targets, schemes and programmes.

The Directive defines energy efficiency in “terms of the ratio of output of performance, services, goods or energy, to input of energy”.[18] Energy efficiency targets are related to primary energy consumption as “gross inland consumption, excluding non-energy uses”, and final energy consumption as “all energy supplied to industry, households, services and agriculture”. To that extent, Member States shall notify their targets to the Commission taking into account the “absolute level of primary energy consumption and final energy consumption in 2020”.[19]

The Directive puts great emphasis on the public sector to achieve targets of energy efficiency. In particular, it provides that 3% of public bodies’ buildings shall be renovated to respect minimum energy performance requirements. Similarly, public bodies are required to purchase products, services and buildings with high energy-efficiency performance. Further, the Directive states that Member States shall set up energy efficiency obligation schemes with a view to achieve the energy efficiency goals.

The consumers are entitled to receive intelligent metering system indicating competitive prices, reflecting accurately the consumer’s actual energy consumption and providing information on actual time of use.[20] Similarly, billing information shall be accurate and based on actual consumption. This system of billing information shall be free of charge and be easy to access.[21]

Finally, the chapter on energy efficiency in supply contains provisions on energy auditing, energy transformation, transmission and distribution, energy services and incentives to reduce energy consumption.[22] The primary objective of these provisions is to allow a smart use of energy and to promote energy efficiency in the Member States.

 

3. A commentary to the Directive: critical remarks

The Directive stands out as the most important piece efficiency of legislation in European energy law. Its content, admittedly much more detailed as compared with the Commission’s initial proposal, has been fairly modified. On the whole, as shown also by a Commission Non-paper,[23] the amendments to the Directive have not been beneficial to reach the energy efficiency target.

First, contrary to the initial attempts of the Commission, the Directive follows the policy objective of reaching indicative national targets on Member States rather than the binding targets. This policy choice reflects the need not to impose an excessive burden on Member States and is motivated by the difficulties of accepting “binding terms” in the Council. Admittedly, indicative targets do not share the same guarantees as the binding ones and they appear problematic from the point of view of compliance.

Second, the setting up of an energy efficient obligation scheme where Member States need to indicate at least 1.5% annual energy savings is a positive development because it will induce Member States to save energy. Nonetheless, a number of provisions limit the general scope of the obligation scheme and provide for some alternatives to energy saving calculations that do not contribute to energy efficiency on the whole.[24]

Further, important innovations refer to obligations on the part of the public sector. For instance, public bodies should play an exemplary role in energy savings. Accordingly, the directive contains two provisions on the public sector.[25] First, a percentage of 3% in annual renovation for public bodies’ buildings respectful of energy efficient performance is a positive requirement to assure that energy is not wasted by public bodies. As affirmed in the preamble,[26] both the fact that a considerable share of buildings in the Member States is public and that public buildings have high visibility in public life suggest that effective energy saving can be achieved in future. Second, the provision requiring public bodies of the central government to purchase services and buildings with high energy-efficiency performance stands out as a sound condition to assure energy savings. However, at a more careful reading, one aspect strongly limits the scope of this provision: the obligation to purchase does not apply to local authorities as long as the purchase does not have a value equal or greater than the threshold established in Art.7 of directive 2004/18/EC.[27] Admittedly, this limitation on scope contained in the Directive does not contribute to far-reaching energy savings.

Conversely, from the point of view of the consumer, the directive appears a significant improvement in transparency and access to information. In fact, consumers will be informed on energy consumption through intelligent metering systems and sound billings. Nonetheless, the insertion of conditionalities to metering and billing obligations strongly reduces the potential benefit for energy efficiency.

As for undertakings, the directive establishes, on the one side, incentives for Small and Medium Enterprises (“SMEs”) to promote energy audits and, on the other side, obligations for large companies to carry out energy audits. These could prove to be effective measures to assure that the private sector respects appropriate standards of energy consumption. However, given the voluntary nature of audit for SMEs, it appears less probable that SMEs will make use of audits if the Member States do not provide for substantial incentives to the benefit of the undertaking itself. Conversely, the audit obligation on the part of non-SMEs will take place only from 5 December 2015. Hence, one may question whether these provisions are actually effective in contributing to reach the 2020 targets of energy efficiency.

Finally, the Directive contains a provision on efficiency in heating and cooling that should promote cogeneration. Once again, this provision refers to an obligation to carry out a cost-benefit analysis rather than an obligation of cogeneration as envisaged in the proposal. Hence, even if the proposal attempted at assuring that cogeneration took place in the EU, the final Directive is less stringent in achieving cogeneration as a way to reduce energy consumption.

 

4. Conclusion

The Directive contains important improvements to raise energy efficiency in Europe but, unfortunately, its content is not as stringent as expected to reach the 20% target by 2020. Even if Member States duly implement the provisions of the Directive, which is still difficult to preconize, the EU does not have realistic chances to attain the planned 20% increase in energy efficiency by 2020 with the new Directive. Hence, it is still open to debate whether the EU should refocus energy efficiency on less ambitious goals or promote stricter policy solutions to reach the 2020 target.

 


[1] Communication “20 20 by 2020 – Europe’s climate change opportunity”, COM (2008)30.

[2] See the speech “Commissioner Oettinger welcomes final adoption of Energy Efficiency Directive”, IP/12/1069, 4.10.2012.

[3] Directive 2012/27/EU on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC, [2012] OJ L315 p.1 (“the Directive”).

[4] Directive 2004/8/EC of the European Parliament and of the Council of 11 February 2004 on the promotion of cogeneration based on a useful heat demand in the internal energy market; and Directive 2006/32/EC of the European Parliament and of the Council of 5 April 2006 on energy end-use efficiency and energy services.

[5] The Directive, recital 2.

[6] On the impact of the Lisbon Treaty on energy policy see L. HANCHER and F. SALERNO, “Energy Policy after Lisbon”, in A. BIONDI, P. EECKHOUT and S. RIPLEY, EU law after Lisbon, Oxford, 2012, pp.367-402.

[7] For a reconstruction of past energy efficiency initiatives in the EU see V. BRUGGEMANN, Energy efficiency as a criterion for regulation of the European Community, (2004), EELR, pp.141-147.

[8] As starting point on energy efficiency in the EU see the Council Resolution of 7 December 1998 on energy efficiency in the European Community, OJ 17.12.1998 C394/01.

[9] Commission Communication, Action plan for energy efficiency: Realizing the potential, COM(2006)545 final.

[10] 7224/1/07 REV 1, 02.05.2007.

[11] On the 20 20 20 package see more extensively K. KULOVESI, E. MORGERA and M. MUNOZ, “Environmental integration and multi-faceted international Dimensions of EU law: Unpacking the EU’s 2009 Climate and Energy Package”, (2009), CMLR, pp.829-891.

[12] COM (2008) 30.

[13] Communication from the Commission of 13 November 2008 – Energy efficiency: delivering the 20% target COM(2008) 772.

[14] The consumption of energy is generally calculated in “Mtoe” which can be defined as the equivalent amount of energy released by burning one Million tonne of crude oil.

[16] The Directive, recital 2.

[17] Ibidem, recital 8.

[18] Ibidem, art. 2 par. 1 n. 4.

[19] Ibidem, art.3.

[20] Ibidem, art. 9.

[21] Ibidem, art.10.

[22] Ibidem, art.8, 14, 15, 16, 18.

[23] See the Commission Non-paper on the Energy Efficiency Directive available at http://ec.europa.eu/energy/efficiency/eed/doc/20120424_energy_council_non_paper_efficiency_en.pdf, 19-20 April 2012.

[24] See the Directive, art.7 par.2. However, as stated in art. 7 par.3, the reduction on energy savings “shall not lead to a reduction of more than 25% of the amount of energy savings”.

[25] The Directive, art.5 and 6.

[26] Ibidem, Preamble 17.

[27] Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, OJ  L 134, 30.4.2004, p.114.

Article

EU Competition Policy’s Broad Application

 

Robert Miklós Babirad

 

1          Introduction

On October 18, 2012, Mr. Joaquín Almunia, Vice President of the European Commission responsible for Competition Policy delivered a speech entitled “Competition Enforcement in the EU: Beyond the Integration of Markets”[1] at the twentieth anniversary of the Academy of European Law.  Mr. Almunia’s speech reflects the important idea that EU competition policy has a broad application and impact on the EU’s citizenry.  Additionally, the scope of EU competition policy necessarily extends beyond furthering development of the Single Market and economic efficiency objectives.  It may be argued that a broad and diverse application of EU competition policy, which is not limited solely in its employment to increasing economic efficiency, will lead to greater diversity and abundance of derived benefits for all EU citizens as well as furthering the Union’s development as a whole.  A key example of an expanded application for competition policy provided by the speech is that of its use as a tool for effectively responding to the present financial crisis.[2]

 

This article will begin by briefly discussing the debate concerning the role of competition policy.  EU competition policy as a unique tool, which differs from that which may be available in other competition systems will then be discussed.  The views set forth in Mr. Almunia’s speech concerning the historical, present and future application of EU competition policy will be offered.  The article will conclude by suggesting that Mr. Almunia’s speech demonstrates the continued importance and need for competition policy to be applied in context and its necessity as an instrument with broad application for enhancing the welfare of all EU citizens.  It will also be argued that placing competition policy in the greater context of the Union’s goals as a whole, and affording competition policy the opportunity to be an instrument responsive to its societal context, is preferable over an approach that is solely concerned with generating economic efficiency.

 

2          The Role of EU Competition Policy

 It is interesting to read Mr. Almunia’s speech in the context of the debate over the “correct” role for EU competition policy.  The majority of global competition law systems presently consider the enhancing of economic efficacy to be their primary goal.[3]  Objectives related to public policy have diminished as an important consideration in these systems.[4]  The U.S. antitrust model provides an example of this approach where all effective discourse must be presented in terms of economics and no provision is made for successful, non-economic, policy related arguments.[5]  A solely economic approach would not be effective under the EU system, because different societal values including that of the Single Market, as well as the attendant policy considerations of the Treaties are at stake.

 

The alternative and perhaps more helpful viewpoint, particularly with regard to the EU, is that competition policy should apply broadly and also promote a nation’s policy objectives, or in this case those of the Union as a whole, objectives which may not be related solely to increasing economic efficiency.[6]  However, the European Commission is restricting the consideration of policy objectives within EU competition policy.[7]  Mr. Almunia notes in his speech that one important change has been a trend toward an approach that is to a greater degree economically oriented and this is reflected in the regulations for block exemptions and establishment of guidelines relating to policy in varying fields.[8]

 

Dr. Townley states that competition policy is “not an end in itself,” but is rather more appropriately employed as a tool for achieving the objectives set forth in the Treaties.[9]  Additionally, the EU competition provisions do not operate independently and it is preferable to view them instead as “part of a web of inter-related Treaty articles.”[10]  The EU Treaties and their embedded objectives provide the context in which competition policy must be interpreted.[11]  Mr. Almunia’s speech also indirectly alludes to this contextual approach for EU competition policy, but stops short of directly calling for the greater incorporation of policy under the competition provisions.  It is this contextual approach, which appears to be of the greatest helpfulness if EU competition policy is to be used as an effective tool for promoting the values of the Treaty as well as those of the EU and its citizens as a whole.

 

An example of the Commission’s limitation on considering objectives other than economic efficiency under EU competition policy is demonstrated by its statement that the objective of Article 101 TFEU (previously Art. 81 EC) is to protect competitive conditions on the Single Market with the goal of promoting consumer welfare as well as the allocation of resources in an efficient manner.[12] Goals relating to policy expressed in the Treaties, may only be considered under Article 101 TFEU if they fall within the limited conditions of Article 101(3) TFEU.[13]  However, it has also been argued that Article 101(3)’s conditions for exemption of otherwise prohibited agreements are not necessarily meant for the incorporation of policy, but are rather “economic efficiency” considerations.[14]

 

It may be argued that EU competition policy has necessarily gone beyond the role of considering solely economic efficiency and must continue to do so moving forward.  The need for its broad application as a tool not only for creating economic efficiency, but also as a contextually responsive instrument for responding to the present economic crisis appears to be evident.[15]  It is in this application that competition policy may have the greatest effect and benefit the largest number of individuals.

 

3          EU Competition Policy’s Unique Nature

Mr. Almunia’s speech demonstrates that EU competition policy differs from other competition law systems and therefore necessarily takes a different approach in its application.[16]  The European Commission, as a competition authority, is in a unique position, because its enforcement powers extend broadly to both bodies of a private as well as public nature.[17] It is important for both public and private actors to be made accountable to the competition rules and as such not only is competition increased, but greater consideration may be given to advancing the Treaty’s policy considerations with regard to both the public and private sector. Additionally, it is only through applying competition policy to both public and private actors that the Single Market and increased welfare of all EU citizens can become a functional reality.

 

Competition is safeguarded in the private sector by rules concerning antitrust, which seek to prevent the development of private restrictions to trade by businesses.[18]  Additionally, these rules operate with the objective of establishing equal operating conditions for businesses within the Single Market.[19]  In the public sector, rules concerning State aid inhibit governments from altering competitive conditions and ensure equality of opportunity in the ability of Member States to provide subsidies.[20]  The European Commission, because of its broad application of rules regulating competitive conditions is empowered with a “formidable tool,” which benefits both citizens of the EU as well as the Single Market as a whole.[21]  It is noted in the speech that neither other nations outside of the EU nor organisations operating at the international level have at their disposal the tools available within the EU competition system.   It is therefore important that these tools not be restricted by the establishment of a narrower application for EU competition policy. Additionally, a competition policy less insistent on policy will subsequently result in decreased societal benefits (namely, those advocated by the Treaties) that would have otherwise been available.

 

The application of EU competition policy is broader than that employed in most other jurisdictions and bases itself not only upon the unique situation of fostering development of a Single Market, but also upon the underlying idea of promoting the welfare of its citizens by monitoring competitive effects by both private as well as public actors.  The EU competition system’s broad application to both public as well as private actors thereby creates overall better conditions for the economy as well as its citizens than that which may occur under a more restricted interpretation.

 

 4          Application of EU Competition Policy

EU competition policy has traditionally embodied and continues to take on a broad role, not limited solely to creating economic efficiency in its application or corresponding benefits.  This is reflected by Mr. Almunia’s speech.  It appears that this is the most helpful approach and most in line with the goals of the Treaty, which necessitate the consideration of policy in applying the competition rules.[22]  The Single Market can only be effectively integrated if competition policy applies broadly, not only to public and private actors, but also through its application as an instrument for advancing the Union’s larger policy objectives.

 

The application of competition policy may focus upon and be predominantly motivated by economic considerations, but its broad application and derived impact as well as benefits have suggested a much greater influence.  The suggestion is put forth that competition policy does not operate in an isolated manner, which would insulate it from the surrounding social and economic situation.[23]  The present social and economic situation since the onset of the global financial crisis is comprised by a lack of growth, an increase in unemployment, and an elevated public debt situation.[24]  Competition policy must not only operate in this difficult context, but has the responsibility to aid in the creation of growth that is sustainable while also assisting Europe in its ability to withdraw from the present crisis.[25]  This in itself recognises an extended role for competition policy beyond that of generating economic efficiency and is clearly reflective of the important and necessary role of policy considerations.  However, it is not clear from the speech as to how competition policy should proceed in this regard nor is it evident how the competition provisions should be applied as a tool for addressing the present financial crisis.

 

Policy concerns are being implicated and alluded to in Mr. Almunia’s speech, such as that of competition policy serving a contextual purpose and being employed as a tool for responding to the present financial crisis, but how this is to be done remains unclear.  However, competition policy necessarily emerges as a tool that is most productive if enabled to be responsive to its context, rather than one which is isolated and solely focused upon the attainment of economic efficiency at the exclusion of considering the Union’s policy related Treaty objectives.

 

Competition policy is an essential tool in Mr. Almunia’s view for the continued integration of the EU, but its role is not restricted to “the preservation of a level playing field” within the Single Market.[26]  The historical development of the EU’s unique competition policy regime as well as the support, which is offered by the Treaties and its accompanying policy objectives provide substantiation for this viewpoint.[27]  Mr. Almunia states, “[w]e all know that the call of Europe’s founding fathers for economic integration had a more profound and more noble motive.”[28]  Subsequently, it may be inferred that EU competition policy goes beyond protecting economic efficiency in its application and this is demonstrated by its role as an essential instrument for Europe’s institutional and political development.[29]  One is led to believe that policy considerations remain important in the application of competition policy, particularly if it is to be used as a tool for effective political and institutional construction.  However, one is left unsure as to whether an expanded role for policy is actually being advocated or whether Mr. Almunia’s remarks relate solely to economic efficiency.

 

Competition policy has also been used as an essential tool for development of the Single Market and the EU Courts’ manner of interpreting the competition provisions have occurred in a way that furthers integration.[30]  An example includes the EU Courts’ interpretation of concepts such as “effect on trade,” “concerted practices,” and the definition of an “undertaking” being afforded an interpretation that is generous and based upon the overriding policy interest of the Single Market’s development.[31]  As such, we see another example of competition policy being broadly applied.  It was traditionally necessary and continues to be essential for the EU Courts to follow this broad manner of interpretation if advancement of the Single Market is to be successful.

 

The importance of the relationship between competition policy and Europe’s public services is also noted.[32]  The public institutions of the community have the obligation of carrying out one of the most central tenets and fundamental values of the European model, that of providing for “certain social needs and public goods.”[33]  Mr. Almunia states that in looking at the field of public services in Europe, we are provided with “no better example to illustrate the link between competition controls and our fundamental values.”[34]  However, although a link is made between key European values and the competition provisions, the actual role of policy remains uncertain.  Policy is essential and must be considered to a greater degree in the application of the competition rules if there is to be such a link.  Applying competition policy to the provision of community public services clearly goes beyond the concern of generating economic efficiency.  It reflects important policy considerations, one example being that of Member States having the support of a competition law system, which assists in their ability to provide such services in a fair, effective, and cost efficient manner.  Unfortunately, the speech again stops short of directly supporting policy under the competition provisions.  However, the need for an expanded application of competition policy does appear to emerge as an important consideration in the continued development of the EU competition law system.

 

Competition policy has also assisted the Commission’s efforts to eliminate those existing obstacles, which may obstruct the development of unified European markets in areas as diverse as the telecommunications industry, the provision of postal services, railway networks, energy distribution and air travel with the goal of furthering the development of a single and unified EU marketplace.[35] Additionally, competition policy has made the principles of the free movement rules effective in practice.[36] It is essential for policy to be considered in applying competition policy broadly, particularly because of a propensity by the Commission and EU Courts to apply similar reasoning in their application of both the free movement and competition rules.[37] Unified markets and effective free movement rules are not only positive economically, but also foster a greater sense of European national, institutional and political unity, which are policy concerns.  The strengthening of the EU has in many ways been due to its competition policy and the broad application of that policy.[38]  The EU competition system has also delivered “practical benefits” to its citizens, because of its broad application and perhaps it may be argued that these have been derived, because of the recognition of policy and an application that has traditionally been contextually responsive.[39]

 

In the field of mergers, the EU Courts have afforded the Commission the ability to inquire into practices of an anticompetitive nature as well as mergers within the Single Market with the key requirement being merely that an impact upon the EU occurs even though a company may not have a physical headquarters within the European Union.[40]  EU competition policy has necessarily had a wide application and this is demonstrated by its application to foreign companies operating within the EU.  It is important that undertakings from outside of the Union are not provided with the opportunity to escape liability for actions, which lead to the distortion of competition on the Single Market, because of a narrow application of EU competition policy.

 

A unified and shared body of law that all EU citizens are able to rely upon has also been provided by the unique application and interpretation of EU competition policy.[41]  Legal precedents have applicability throughout Europe providing a common body of law for its citizens, businesses and national competition authorities.[42]  The competition rules are also universally applicable to all undertakings and it is possible for these rules to be invoked directly by citizens as well as businesses at the Member State level.[43]  Businesses are able to operate effectively and freely across Member States, because of competition policy and its enforcement against anti-competitive practices, which provides protection and universal applicability to companies throughout the European Union.[44]  A uniform body of law that applies throughout all of the Member States has economic, societal and political benefits and is possible, because of a broad and policy cognizant application of competition policy.

 

Mr. Almunia also states that in 2008 at the onset of the financial crisis, competition policy was employed as the only shared available device for confronting and preventing the collapse of the financial system in Europe.[45]  Government bail-outs were also controlled by the timely creation of a system concerning State aid and plans presently exist for a banking union’s future development.[46]  Additionally, State aid has been flexibly employed as an integral part of the EU’s competition policy.[47]  These actions clearly demonstrate the importance of a competition policy that is necessarily wide, contextually responsive, cognizant of policy, and subsequently varied in its scope, application and derived benefits.

 

5          Conclusion

The contributions of EU competition policy have improved the standard of living within Europe because of their broad application to a wide array of areas, resulting in the improved development of the Union’s structural, political and legal composition.[48]  EU competition policy should not be limited to solely attaining economic efficiency and now more than ever must be an instrument cognizant of greater European policy concerns.  Competition policy in the EU has not been traditionally restricted in its application or corresponding benefits to economics or the objective of advancing the Single Market, which may itself be looked upon as a predominantly economic concern.[49]  It continues to be important for EU competition policy to serve as a multipurpose instrument that is aware of its operating context and Treaty obligations, particularly if it is to be an effective tool for responding to the present financial crisis and the attainment of its timely resolution.

 


[1] Almunia, P, Competition Enforcement in the EU: Beyond the Integration of Markets, The citizen at the heart of EU law: 20th anniversary of the Academy of European Law (ERA) Trier, Speech /12/742, 18 October 2012.  <http://europa.eu/rapid/press-release_SPEECH-12-742_en.htm>  Accessed 12th of November 2012.

[2] See Almunia, p. 5.

[3] Townley, C. Article 81 EC and Public Policy (Hart Publishing, Oxford, 2009), p. 14.

[4] Ibid., p. 313.

[5] Monti, G. EC Competition Law (Cambridge University Press, New York, 2007), p. 79.

[6] Townley, p. 14.

[7] Ibid., p. 11.

[8] Almunia, p. 3.

[9] Townley, p. 314.

[10] Ibid., p. 48.

[11] Ibid.

[12] Commission Notice, Guidelines on the Application of Article 81(3) of the Treaty OJ 2004 C101/97, para. 13.

[13] Ibid., para. 42.

[14] Monti, p. 45.

[15] Almunia, p. 5.

[16] Ibid., p. 3.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] See Townley, pps. 48-50.

[23] Almunia, p. 5.

[24] Ibid.

[25] Ibid.

[26] Ibid., p. 2.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] Ibid., p. 4.

[31] Ibid.

[32] Ibid., p. 6.

[33] Ibid.

[34] Ibid.

[35] Ibid.

[36] Ibid., p. 4.

[37] Mortelmans, K. “Towards Convergence in the Application of the Rules on Free Movement?” (2001) 38 Common Market Law Review 613, pps. 613, 645-46.

[38] Almunia, p. 4.

[39] Ibid.

[40] Ibid., p. 4.

[41] Ibid.

[42] Ibid.

[43] Ibid.

[44] Ibid.

[45] Ibid., p. 5.

[46] Ibid.

[47] Ibid., p. 6.

[48] Ibid.

[49] See Commission, Article 81(3) Guidelines, para. 13.

Article

The New Proposal on Reception Conditions for Asylum Seekers: Genuine Change or Putting Lipstick on a Pig?

Amanda Spalding

LLM student at King’s College London

 

This September the European Parliament voted to reinforce asylum seekers’ rights in the Member States.[1] This is a welcome development given that the EU states’ record on asylum is far from squeaky clean with asylum seekers often being shunted from one Member State to the other and horror tales of unsanitary and unsafe living conditions in detention centres.[2]  The draft proposals approved by Parliament clarify the responsibilities of states as well as providing a set of standards for the reception and treatment of asylum seekers. These standards include detention grounds, detention conditions, detention of vulnerable persons, asylum seekers’ access to the labour market, asylum seekers with special needs and access to benefits. The draft, which has been provisionally agreed with the Council, modifies the Directive 2003/9 and, if passed, will become EU law by December 2012. In this article I will outline the proposed changes to the Directive and will offer a critique to ascertain whether these changes will adequately change the current asylum system or whether it is simply ‘putting lipstick on a pig.’[3]

 

The Current System

Up until 1999 asylum policy between Member States still operated on an intergovernmental level in so far as it was covered by the Third Pillar, thus outside the competence of the European Community(now the European Union). However with the Schengen cooperation[4] being incorporated into the Treaties in 1997 it was thought necessary to change this and bring the relevant policy areas under the EU’s remit. From 2003 to 2005 the EU attempted to implement the first phase of a ‘Common European Asylum System.’ The relevant instruments adopted under this heading are:

  1. Regulation 343/2003 which covers the determination of responsibility for an application of asylum between Member States.
  2. Directive 2003/9 which lays down the minimum standards and conditions of reception of asylum seekers.
  3. Directive 2004/83 which sets the minimum standards for the qualification of persons as refugees or persons otherwise in need of international protection as well as what protections are granted.
  4. Directive 2005/85 which provides the minimum standards on Member States procedures for withdrawing or granting refugee status.

This system has proven to be disastrous. Notice the abundance of directives used – giving Member States discretion in their implementation of the system. This has resulted in very important issues such as standards of reception and the criteria for qualification of a refugee being subject to different interpretation in what is ostensibly a ‘common’ system. The whole area of EU asylum law generally is deeply in need of reform but given the parameters of this article the rest of the discussion will be confined to Directive 2003/9.

As stated above the Directive 2003/9 relates to reception conditions for asylum seekers. ‘Reception conditions’ are the rules for the treatment of asylum seekers while their claim is being processed.  They generally concern areas relating to social rights.

There are six main areas that the current proposal seeks to amend. These are detention grounds, detention conditions, detention of vulnerable persons, asylum seekers access to the labour market, asylum seekers with special needs and access to benefits. I will outline the changes in each area below:

 

Detention Grounds

At present the 2003/9 Directive does not provide any grounds for detention. Thus the grounds for detention vary from state to state as they have discretion in this area. The new proposal sets out an exhaustive list for grounds of detention of an asylum seeker which are:

–       to check his or her identity;

–       to verify the elements of the application for international protection;

–       to decide on their right to enter the Member State’s territory;

–       to protect national security and public order;

–       to prepare them for return to their  home country if the Member State “can substantiate on the basis of objective criteria … that there are reasonable grounds to believe that he makes the application for international protection merely in order to delay or frustrate the enforcement of the return decision”;[5]

–       in the context of a transfer to another Member State, under the “Dublin II” regulation on  responsibility for asylum seekers.

 

Detention Conditions

The current law does not provide any guidelines as to where an asylum seeker may be detained by a Member State. There is merely a requirement to provide them with a dignified standard of living. Thus a common ‘solution’ is to detain asylum seekers in prison. The European Parliament was in favour of prohibiting this in the new proposal but could not get the Council to agree. The new proposal merely reiterates the point that generally detention should take place in a specialised detention facility. However, if accommodation in such a facility cannot be provided and the Member State is obliged to place the asylum seeker in a prison, then they should be kept separately from ordinary prisoners and have access to open-air spaces. Asylum seekers who are detained must also be provided with information explaining their rights and obligations in a language that they understand “or are reasonably supposed to understand”[6].

 

Detention of Vulnerable Persons

Article 18 of Directive 2003/9 only provides that Member States should take into account the specific situation of vulnerable persons. The new proposal lays down some clearer rules. Minors are only to be detained as a last resort and if they are, it should be for the shortest period possible. All efforts should be made to release them and place them in more suitable centres. Unaccompanied minors should only be detained “in exceptional circumstances” and they should not be kept in prisons. They should be provided with accommodation in centres with staff and facilities which are adapted to their needs. They should also be kept separately from adults. Though this is an improvement on the very vague provision laid out in Art 18, the European Parliament wanted to insert clauses providing for a ban on the detention of vulnerable persons if it would be harmful to their health and to completely ban the detention of children. However they were resisted by the Council and the above compromise was reached.

 

Access to the Labour Market

At present, an asylum seeker will have access to the labour market one year after they have filed an application. However in practice there may be other obstacles. The Commission pointed out in its 2008 report on the application of the current directive that “additional limitations imposed on those asylum seekers who have already been granted access to the labour market, such as the necessity of a work permit, might considerably hinder such access in practice”. Also if a negative decision regarding the application is made within the year and the asylum seeker wishes to challenge that decision then the one year period restarts. Under the new proposal asylum seekers will have access to a Member State’s labour market no later than nine months after filing an application.  The Commission and the European Parliament wanted to change this to six months but again could not convince the Council.  The other restrictions to access also continue to apply.

 

Special Needs

Like minors, the current directive only requires the Member State to take account of the person with special needs (i.e. vulnerable persons) specific situation. It also provides that victims of torture, rape or other acts of violence should be given medical treatment if necessary. Under the new proposal the Member States will be obliged to assess whether an asylum seeker needs special attention, such as medical or psychological help. This assessment should take place “within a reasonable period of time” after an application is filed and the Member States should ensure that these special needs are properly addressed.


Access to Benefits

Currently the Directive merely provides that the Member State must provide emergency healthcare and treatment of essential illnesses to asylum seekers. All other benefits may be withdrawn at the Member State’s discretion.  The new proposal provides that benefits may only be withdrawn in exceptional and duly justified cases. This is again a compromise as the European Parliament wanted to ban withdrawal of benefits whereas the Council was happy for the current system to continue. Another change is to the practice of reducing benefits to asylum seekers who apply ‘late’. Now a Member State must be able to demonstrate that the asylum-seeker had not applied as soon as ‘reasonably practicable’ for asylum, ‘for no justifiable reason’ in order to reduce benefits. Again this is a compromise as the European Parliament wanted to abolish this practice, whereas the Council wanted to keep it. Finally Member States are now obliged to provide core benefits which includes emergency healthcare but also includes providing a ‘dignified standard of living.’ This is somewhat of a victory for the European Parliament as the Council only wanted to include healthcare but the vagueness of ‘dignified standard of living’ may prove to result in little change.

 

Is it enough?

Although undoubtedly there will be a lot of back slapping around the European Parliament over these changes, very little has in fact been achieved. The phrase ‘putting lipstick on a pig’ certainly seems apt here. The pig that is the EU’s broken asylum system has been very insignificantly altered. The number of asylum seekers who are detained may decrease slightly but given the broadness of some of the terms such as ‘to verify the elements of the application’; it is unlikely to significantly decrease. The ability of Member States to hold asylum applicants in prisons and for an imprecise period remains unchanged. Minors, unaccompanied minors and other vulnerable persons are still able to be detained by the state. The changes to access to the labour market are also relatively insignificant. As can be seen from above, this new proposal is most definitely a compromise. The limitations on withdrawal or reduction of benefits are a relative success but again encompass the features of a compromise. Although the Council may not have gotten its way with all measures, it has significantly diluted the Commission and European Parliaments proposals. Sadly this proposal will be viewed by those advocating fairer and more dignified treatment for asylum seekers as a missed opportunity. However these new proposals do meet for the most part with the UN Refugee Agency’s guidelines on detention of asylum seekers.[7] It provides grounds for detention, that detention in general and especially in prisons should be an exception to the rule and that the detention of minors and particularly unaccompanied minors should be an exceptional circumstance. The only way the proposal is lacking is that is does not specify the factors to be taken into account when deciding whether or not to detain a vulnerable person. Thus on the face of it, the new proposals at least means that the EU meets acceptable international standards on detention. Whether or not this is the case in practice will have to be seen but I am doubtful that the practice of detaining asylum seekers in prisons will see any change in near the future. Nevertheless any improvement on the current system is a welcome development and will hopefully mark the beginning of a trend in raising standards.

 

 


[4]  Which resulted in the abolition of passport controls between Member States

[5] July 2012, agreed text of Directive – Council document 12090/12:

http://www.statewatch.org/news/2012/jul/eu-council-reception-compromise-12090-12.pdf page 2 para 2

[6] July 2012, agreed text of Directive – Council document 12090/12:

http://www.statewatch.org/news/2012/jul/eu-council-reception-compromise-12090-12.pdf page 56