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BREXIT: THE LAST CHANCE FOR EUROPE AND THE UNITED KINGDOM?
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Following the usual bargaining, the Member
States settled on a period of seven years, which
left Britain more than satisfied.
In spite of the specificity of British benefit
payments, which are practically exclusive to the
UK, other countries such as Germany, Austria
and the Netherlands have also been requesting
measures to control both the spending gener-
ated by immigrant workers and the flow of
workers itself. The agreed formula seeks to fully
respect the right to freedom of movement, a
fundamental freedom of the EU, whose reform
in the treaties is simply unthinkable (article 45 of
the Treaty on the Functioning of the European
Union). However, doing so has required an in-
terpretation of the case law of the Court of
Justice (cases Dano and Alimanovic). Here we
should recall that article 21.1 of the Treaty on
European Union subjects the right of EU citizens
to freely reside in any other Member State to
the “limitations and conditions” established in
Directive 2004/38, which requires them to have
a job or sufficient resources and full medical in-
surance. As such, it is in line with EU law for a
Member State to restrict the provisions offered
to EU immigrants while they are looking for em-
ployment during the first five years of their resi-
dence, and if they do not have genuine ties to
the country (Mangas
op. cit.
). The UK has also
had to drop its plans to deport immigrants if
they do not represent a burden and do not af-
fect public order, safety or health. Nor can the
country unilaterally set a period of time for look-
ing for work, as Cameron had intended, since
this would require treaty change. In general
terms, in spite of its shades of grey, the agree-
ment makes it clear that restrictive measures
such as those demanded by the British
Eurosceptics cannot be applied unilaterally.
Cameron was less successful with his de-
mands regarding child benefits paid in respect
of children who are not resident in the UK.
Before the start of the Council, he had already
had to accept that child benefits should, at
most, be indexed to the value of payments in
the country where the children are resident. For
current immigrants, indexing with respect to the
real value, purchasing power or standard of liv-
ing in their country of origin will begin in 2020,
a date that has been interpreted as an act of
generosity by the UK. Under this agreement, the
British Exchequer will scarcely reduce spending
on child benefits and, given the complications
of implementing the new provision and the bu-
reaucracy involved in its management, it may
ultimately serve to increase costs from current
levels. The agreement also establishes that the
procedure will not apply to pensions. For other
types of work-related movement, such as pro-
fessional activities, in the event of exceptionally
large and prolonged inflows, there is an alert
and guarantee mechanism with restrictions on
payments for the first four years of residence to
be gradually authorised by the Council.
In short, an agreement whose objective is to
prevent EU immigrants in the UK from immedi-
ately accessing certain social benefits on the
same terms as British citizens affects the funda-
mental values of the European project, regard-
less of how well it is made to fit the law. Both
the underlying aim and the debate in the run-up
to the agreement were a direct attack on the
principles of the free movement of people and
non-discrimination, and this debate looks set to
continue at least until the referendum on 23
June 2016. The Council, and prior to this the
Commission, proved incapable of arguing that
these demands are based on unjustified preju-
dices since there is no exceptional migration cri-
sis in Britain that justifies them. Unemployment
in the UK is 5 % and the net balance of contri-
butions and income from this group to the ex-