Territorial disputes: Northern Ireland (Part 20) [Post 105]

European Union Law and Northern Ireland

In light of Brexit, the situation in Northern Ireland opens questions in law and politics. 

Since the United Kingdom is leaving the European Union, there as claims on the news as challenging as the possibility Northern Ireland may use self-determination. 

The next posts will make clear that self-determination may imply independence but can result in other legal and political arrangements. 

For example, in theory, the question whether Northern Ireland could join the Republic of Ireland and would, therefore, remain part of the European Union.

In the case of Northern Ireland, the first posts differed from previous analysis presented by this blog series TERRITORIAL DISPUTES. 

This time the series introduced the relationship between national law and international law. From there, the relationship between the law in the United Kingdom and the European Union was explored by presenting the notion of supremacy or primacy (in a nutshell, European Union law has priority over the national legal order of the Member States). 

Thereafter, the particular emphasis was on free movement of people, European Union citizenship, free movements of goods, capital and services. These are the “four fundamental freedoms” that all Member States part of the European Union reciprocally recognize and that the United Kingdom, and therefore Northern Ireland, will give up in 2019).

From Monday, the following posts will introduce: different academic and non-academic views; the current situation; the views of the inhabitants (because in any case they are the ones who will live the consequences of any decision); coverage by the media including all parties in the dispute; the ideal methodology to solve the difference (what I call Egalitarian Shared Sovereignty); its application to some controversial elements; and some conclusive remarks.

Northern Ireland and Cultural Shared Sovereignty

Northern Ireland introduces a particularly interesting application of the term “shared sovereignty” is the case of divided societies or “cultural shared sovereignty”. 

Northern Ireland presents two clearly defined sectors, that of the nationalists, mainly Roman Catholics, and that of the unionists, mainly Protestants. This model applies to two ethnic or nationality groups living in the same territory neither of which wants to belong to a state dominated by the other.

The current arrangements contemplate the existence of two communities within a single State (or in the case of Northern Ireland, in a single sub-State) who deal with their divisions by sharing in the exercise of political authority. Additionally, it gives a hint of how to deal with power-sharing institutions by including sharing groups and differentiating them between compulsory and voluntary.

On the positive side, the institutional scheme of the “cultural shared sovereignty” offers all the claimants certain degree of participation. It is not easy to imagine how the institutions would work in practice after Brexit.

Previous posts on this series about Northern Ireland (and the European Union): Post 86 to Post 104.

NOTE:

This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST:

Northern Ireland: When and Where it all Started

                   

Friday 22nd May 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

Territorial disputes: Northern Ireland (Part 19) [Post 104]

European Union Law and Free Movement of Goods: Non-Financial Financial Barriers

European Union law prohibits financial and non-financial barriers to free movement of goods. 

The last posts referred to financial barriers and the applicable law (arts 28-30 TFEU) in relation to the prohibition of customs duties and charges having equivalent effect (CEEs); and art 110 TFEU and the prohibition of discriminatory internal taxation. 

Today, the post introduces non-financial barriers to free movement of goods.

In very simple terms, the applicable law includes arts. 34-36 TFEU and relevant case law (European Court of Justice).

Art 34 TFEU:

prohibits:

1.            quantitative restrictions on imports (QRs)

2.            measures having equivalent effect to quantitative restrictions (MEQRs). 

Art 35 TFEU:

same as art. 34 TFEU, but for exports.

Exceptions to this principle:

• QRs and MEQRS may be justified; that is, may not be unlawful, if fall within the derogations listed in art. 36 TFEU.
• Certain indistinctly applicable MEQRs (but NOT QRs or distinctly applicable MEQRs) may be justified by case law rule (Cassis Rule of Reason/Mandatory Requirements).
• Certain selling arrangements (prima facie = MEQRs) are excluded from art. 34 TFEU by case law rule (Keck v Mithouard).

As this series is centered on TERRITORIAL DISPUTES, the post now presents in very basic terms the above. For a more in depth understanding, please refer to European Union law bibliography.

Quantitative Restrictions (QRs):

defined by case law (Geddo Case 2/73).  National measures imposing numerical limit (for example, bans, quotas) are prohibited unless they can be justified under art. 36 TFEU.

Measures having equivalent effect to quantitative restrictions (MEQRs):

they have a broad concept that includes rules on product packaging, content, shape, labelling, etc. that may hinder inter-state trade. MEQRs are divided into two types (not covered on this post).

Derogations (art. 36 TFEU):

the prohibitions or restrictions on imports and exports can be justified on certain grounds (for example, public morality, public policy, public security, protection of health). Relevant case law Cassis de Dijon Case 120/78 and Keck v Mithouard Case C-297 7 296/91.

The post tomorrow will finish our presentation of European Union law relevant to the case of Northern Ireland. Thereafter, from Monday the posts center the analysis on Northern Ireland; and how Brexit may affect their legal and political status.

NOTE:

This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST:

European Union Law and Northern Ireland

                   

Thursday 21st May 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

Territorial disputes: Northern Ireland (Part 18) [Post 103]

European Union Law and Free Movement of Goods: Financial Barriers

Free movement of goods is central to European Union law and of particular importance for the United Kingdom in light of Brexit (and therefore, Northern Ireland). 

European Union law prohibits financial and non-financial barriers to free movement of goods. Yesterday, the posts referred to the first set of financial barriers and the applicable law (arts 28-30 TFEU) in relation to the prohibition of customs duties and charges having equivalent effect (CEEs). 

Today, the post presents art 110 TFEU and the prohibition of discriminatory internal taxation.

Art 110 TFEU: 

prohibits discriminatory internal taxation once goods have entered a member states. To be more precise, European Union law does not ban internal tax regimes (this part of a state’s fiscal SOVEREIGNTY).  In other words, Genuine internal taxes which comply with art. 110 TFEU are not against European Union law.

A genuine internal tax means a general system of internal taxation applied systematically to domestic and imported products alike according to the same criteria irrespective of the origin of the products. Relevant case law: e.g. Capolongo Case 77/72BUT where an internal tax does not comply with this definition, it will be prohibited by Art 110. 

In brief, an internal tax is unlawful if it discriminates against imported products or is protective of domestic products. Art. 110 TFEU is more intricate. A very brief introduction below.

Art 110(1) 

TFEU prohibits discriminatory taxation in respect of SIMILAR products. The tax may be DIRECTLY or INDIRECTLY discriminatory.

Art 110(2) 

TFEU, where goods are not similar, prohibits discriminatory taxation in respect of products IN COMPETITION.

The posts tomorrow and Friday will highlight the key elements referred to non-financial barriers. Thereafter, from Monday the posts centre the analysis on Northern Ireland; and how Brexit may affect positively their legal and political status.

NOTE: 

This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST: European Union Law and Free Movement of Goods: Non-Financial Financial Barriers

                   

Wednesday 20th May 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

Territorial disputes: Northern Ireland (Part 17) [Post 102]

European Union Law and Free Movement of Goods: Financial and Non-Financial Barriers

The post yesterday included another freedom related to European Union law: free movement of goods. This is of particular importance for the United Kingdom in light of Brexit (and therefore, Northern Ireland).

Free movement of goods would not work if there were barriers. Therefore, European Union law prohibits financial and non-financial barriers to free movement of goods. In brief:

Financial barriers

The applicable law arts 28-30 TFEU refers to the prohibition of customs duties and charges having equivalent effect (CEEs).

Art 110 TFEU refers to the prohibition of discriminatory internal taxation.

Relevant case law (European Court of Justice).

Non-financial barriers

The applicable law arts 34-36 TFEU.

Relevant case law (European Court of Justice).

Financial barriersCustoms duties and CEEs (arts 28-30 TFEU)

Art 28 TFEU: (i) internally (free trade area) there is a  prohibition of customs duties and charges having equivalent effect (CEEs) between member states on imports and exports; and (ii) externally, the adoption of a common customs tariff (CCT) on goods imported from third countries.  Art 28 TFEU requires removal of existing customs duties and CEEs.

What is a custom duty/ CEE? A charge (payment of money) imposed/collected on goods because they cross a border. 

Art 29 TFEU: goods in “free circulation” are goods from third countries which have paid CCT on entry to the European Union. Once inside the European Union, having paid the CCT, they must be treated as goods originating from within the European Union.

Art 30 TFEU: prohibits imposition of new customs duties and CEEs on imports and exports. 

CEE: the definition can be found in Commission v Italy (Statistical Levy Case) 24/68 refers to “any pecuniary charge.” The purpose of duty/ charge is irrelevant. The effect is what counts.

Once customs duty or CEE are found within the scope of Art 30 TFEU the customs duty is unlawful. Some charges may be permissible. 

For example, charges made for provision of genuine commercial service to importer Warehouse Case 132/82; charges levied on importer/exporter for inspection which mandatory under European Union or international law Commission v Germany Case 18/ 87.

The post tomorrow will introduce discriminatory internal taxation to complete the picture about financial barriers. On Thursday and Friday, the posts will highlight the key elements referred to non-financial barriers.

NOTE: 

This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST: 

European Union Law and Free Movement of Goods: Financial Barriers

                   

Tuesday 19th May 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

Territorial disputes: Northern Ireland (Part 16) [Post 101]

European Union Law and Free Movement of Goods

The past weeks the blog series TERRITORIAL DISPUTES introduced the case of Northern Ireland. In doing that, the first posts presented some of the most controversial issues that were the pillars of the Brexit campaign.

So far, the posts covered European Union citizenship, free movement of persons, provision of services, workers, benefits, and family members. Today, the post includes another freedom: free movement of goods. This is of particular importance for the United Kingdom (and therefore, Northern Ireland).

Originally, the principal aim of the European Economic Community treaty was a greater economic integration via creation of common market involving abolition of obstacles or restrictions on free movement of goods, services, workers and capital. Free movement of goods was (and still is) one of the fundamental freedoms on which the European Union is based.

Art 3(3) TEU states as an objective of Community the creation of a common market, furthered now by EMU. The European Union must ensure that all obstacles to free movement of goods, services, persons and capital are abolished.

Art 26(2) TFEU defines  the internal (common/single) market as an area without frontiers in which there is free movement of goods, persons, services and capital. 

Free movement of goods is central to the operation of a common market because it aims to ensure that imported goods are not placed at disadvantage by imposition of extra costs. 

For example, a French exporter of wine into the United Kingdom would not fear any unfair disadvantage in relation to British wine producers (and vice-versa) as long as the United Kingdom remains part of the European Union.

Some basic yet crucial questions

What is a free trade area? What is a customs union? What is an internal (or single) market?  

Free Trade Area (FTA):

it means a removal of customs duties, border taxes between states, quotas or limitations on what can be imported but each state keeps own duties towards countries outside the FTA.

Customs union:

FTA in addition to a common level of duty on goods coming from outside the FTA. This implies a removal of internal customs or quotas in addition to the erection of uniform external tariff.

Single/internal market:

it means customs union in addition to free movement of factors of production. The terms “single market” or “internal market” replaced common market in 1986 (SEA). 

What about goods coming from third countries outside the European Union?

European Union tariff is charged on all goods coming into the European Union from third countries. It is the same tariff regardless of where the goods enter. The monies raised are part of the EU budget. 

The Common Custom Tariff (CCT) is different from charges levied by a member state as part of their own internal taxation system.  The CCT rates are fixed by the EU Council on a proposal from the EU Commission.

What is meant by goods in free circulation?

Once the CCT is applied to third country goods, they are in “free circulation” in the Union, not subject to customs duties between member states. 

These goods are allowed to move freely between member states exactly like goods originating in the within the European Union. 

For example, fruit imported from Latin America by a Spanish importer into Spain can be moved freely into the United Kingdom without paying an extra levy. After Brexit, this same procedure would imply not one (CCT) but two customs duties (one to enter the European Union and one to enter the United Kingdom of the goods first entered via the European Union into the United Kingdom).

What does the term “goods” mean within European Union law?

The term “goods” is used interchangeably with the term “products.”  The European Court of Justice defines it as follows:

Commission v Italy (The Art Treasure Case) (7/68): products which can be (1) valued in money and which (2) are capable of forming the subject of a commercial transaction.

Tomorrow, the post will introduce financial (pecuniary) and non-financial (non-pecuniary) barriers prohibited by European Union law in relation to free movements of goods.

NOTE: This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST: European Union Law and Free Movement of Goods: Financial and Non-Financial Barriers

                   

Monday 18th May 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

Territorial disputes: Northern Ireland (Part 15) [Post 100]

European Union Law, Free Movement of People and Workers: Social and Tax Advantages

Arguably, the most controversial issue that was one of the pillars of the Brexit campaign has to do with benefits. Is it that easy to move to another Member State and claim them?

Because of the relevance of this point and its very controversial nature, in particular in light of Brexit, the post today will extend the analysis to European Union treaty law, secondary legislation and ECJ case law.

Primary EU Legislation

Art.45 (2) TFEU:

Freedom of movement entails abolition of discrimination based on nationality between workers of a Member State as regards employment, remuneration and other conditions of work and employment.

Secondary EU Legislation and Case Law

Regulation 492/2011 art. 1 (1):

Any national of a Member State shall have the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State in accordance with the legal and administrative provisions governing the employment of nationals of that State.

Regulation 492/2011 art. 1 guarantees to European Union migrant workers right to take up available employment and pursue it in territory of host Member State under same conditions as nationals of that Member State.

Regulation 492/2011 art. 3 (1):

Member State will not take measures:

• limiting application for and offers of employment by non-nationals (e.g. rules stating only nationals can apply for position or limiting advertising of certain positions to nationals), or
• limiting right of non-nationals to take up & pursue employment (e.g. rules providing particular kind of work, e.g. security, can only be carried out by national security firms employing nationals or requiring non-nationals to be registered with local job centre), or
• subjecting non-nationals to conditions not applicable to nationals (e.g. recruitment procedure subjecting non-national more than national – tests, references), or
• where, through applicable irrespective of nationality, their exclusive or principal effect is to keep nationals of other M.S. away from employment offered (e.g. rules requiring period of service or residence in host Member State before being eligible for recruitment in particular profession).

Regulation 492/2011 art. 3 (1) provides nationals provisions & practices which limit right to seek or to pursue employment or which impose conditions not applicable to nationals on migrant E.U. workers are inapplicable.

Any provisions which discriminate against foreign nationals or hinder foreign nationals in obtaining work are unlawful.

Regulation 492/2011 art.3 (1) allows, however, for imposition of “conditions relating to linguistic knowledge required by reason of the nature of the post to be filled.”

Groener (379/87):

Requirement imposed by Irish government full-time teachers in Ireland be able to speak Gaelic. Prima facie indirectly discriminatory because Irish nationals more likely to fulfil condition than non-nationals. Advantage given to nationals. Dutch national working in Ireland rejected for full-time art teaching post because failed to pass oral test in Gaelic. 

Held: 1) Irish language requirement could fall within scope of 492/2011 (formerly, Regulation 1612/68) art.3 (1) given Irish government’s policy to promote use of Gaelic, as official language, to express national identity & maintain Irish culture. 2) Because education was important for implementation of such policy, requirement for teachers to have knowledge of Gaelic compatible with Regulation 1612/68 art.3 (1) provided level of knowledge required not disproportionate to objective pursued.

Regulation 492/2011 art.7 (1):

Non-discrimination principle extends to conditions of employment, in particular pay, dismissal and, in case of unemployment, reinstatement and reemployment.

The difficulty arises when legislation lays down that certain advantages are dependent upon criteria which, although, theoretically, applying to both nationals & non-nationals alike, in practice, more likely to be satisfied by nationals:

Ugliola (15/69):

a) Italian national employed by German company. b) For purpose of calculating seniority and promotion, German law provided military service in German army to be taken into account. c) Ugliola performed military service with Italian forces and not German forces.

Court held requirement that service be done in German army be satisfied by far greater number of nationals than non-nationals, enabling them to more easily claim seniority and promotion. Indirectly discriminatory contrary to Regulation 1612/68 art. 7 (1).

Regulation 492/2011 art. 7 (2):

Nationals of another M.S. enjoy same social and tax advantages as national workers.

Cristini v S.N.C.F. (32/75):

a) S.N.C.F., French railway operator, offered discounted rail travel to large French families (including families of deceased workers). b) Cristini, Italian national, resident in France. Widow of Italian national who had worked in France. c) Was refused discount card because was Italian & not French. d) S.N.C.F. put forward Regulation 1612/68 art.7 (2) covered only social & tax advantages linked to employment contract & discount was not linked to any employment contract, thus C unable to claim discrimination on grounds of nationality in respect of social advantage.

“In view of the equality of treatment which the provision seeks to achieve, the substantive area of application must be delineated so as to include all social and tax advantages, whether or not attached to the contract of employment, such as reductions in fares for large families.”

Regulation 492/2011 art.7 (2) can apply to surviving lawfully resident family members of deceased worker. Advantages may be sought after worker’s death to benefit of family remaining in same Member State.

What are “social and tax advantages”?

Even (207/78):

Social advantages = “…all those advantages which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory.”

Thus, art.7 (2) and the principle of non-discrimination appliy to any benefit, whether or not part of employment contract, payable by virtue of individual’s status as worker or residence on national territory.

There are many other cases relevant to Regulation 492/2011: Reina (65/81), Unger (249/83), Inzirillo (63/76), Ioannidis (C-258/04), etc.

Next week the blog series will introduce another European Union fundamental freedom: Free Movement of Goods. In light of Brexit, this is a crucial issue for the United Kingdom (and therefore, for Northern Ireland).

NOTE: 

This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST: 

European Union Law and Free Movement of Goods

Friday 15th May 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world