FACULTY OF LAW

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FACULTY OF LAW
The European dimension to welfare rights
advice Robin C A White
NAWRA 3 December 2004
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Overview

• General remarks
• Human rights law
• the use of Article 14 ECHR
• European Union Law
• the impact of citizenship of the European Union

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Photo courtesy of the Council of Europe
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Article 14 ECHR
Prohibition of discrimination The enjoyment of
the rights and freedoms set forth in this
Convention shall be secured without
discrimination on any ground such as sex, race,
colour, language, religion, political or other
opinion, national or social origin, association
with a national minority, property, birth or
other status
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Article 14 and social security

• Benefits for widows but not widowers
• The Hooper litigation and R(G) 2/04
• Uprating pensions for those resident overseas
• The Carson and Reynolds litigation
• Funerals abroad
• CIS/1870/2003 contrast CIS/3280/2001

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The Michalak framework

• Do the facts fall within the ambit of one or more
  of the substantive provisions?
• If so, was there a difference of treatment as
  respects that right between the complainant and
  the chosen comparator
• Was the chosen comparator in an analogous
  situation to the complainants situation?
• If so, did the difference in treatment have an
  objective and reasonable justification?

Wandsworth LBC v Michalak, 2003 1 WLR 617
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The ambit of the Convention

• The Strasbourg approach
• no violation of substantive right required
• substantive rights broadly construed
• probably covers indirect discrimination
• The United Kingdom approach
• difficult to decide
• stress on direct link to freedoms or rights in
  the substantive article

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Choosing your comparator
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Choosing your comparator

• What is status?
• The need for a personal characteristic?
• Isnt it just about how easy it will be to
  justify any differential treatment?

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Objective justification

• What is the aim of the difference in treatment?
• Is it legitimate?
• Is the differential treatment the least that will
  meet the legitimate aim identified?

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Time for a new approach

• Are Convention rights engaged?
• Who is the comparator?
• Are the circumstances of the claimant and the
  comparator so similar as to require a positive
  justification for the less favourable treatment
  of the claimant?

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Photo courtesy of the Court of Justice
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Three routes to EU entitlement

• Social and tax advantages for workers under
  Article 7(2) of Regulation 1612/68
• Entitlement under the co-ordination regulation
  Regulation 1408/71
• winter fuel payments
• Equal treatment of citizens of the Union

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Citizenship of the Union

• Arts 17-22 EC
• All nationals of the Member States are citizens
  of the Union
• Article 18 gives rise to direct effect the
  Baumbast case
• A fundamental status

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The case law

• Case C-85/96 Martínez Sala, 1988 ECR I-2691
• Case C-184/99 Grzelczyk, 2001 ECR I-6193
• Case C-138/02 Collins, Judgment of 23 March 2004
• Case C-456/02 Trojani, Judgment of 7 September
  2004
• Case C-209/03 Bidar, Advocate Generals Opinion
  of 11 November 2004

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The case of A8 nationals

• Czech Republic
• Estonia
• Hungary
• Latvia
• Lithuania
• Poland
• Slovakia
• Slovenia

• Enlargement and the transitional periods
• 323
• The new habitual residence test
• The impact of citizenship

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A reference
White, R, Residence, Benefit Entitlement and
Community Law (2005) 12 Journal of Social
Security 10-25