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European government in action: five examples

These brief accounts of five recent episodes of EU government are intended to illustrate its mode of government. The merits or demerits of these actions or regulations are not debated or decided, though they inevitably raise the question of whether national governments might have handled these issues more effectively and in a more democratic manner.

Olive oil: organized growers versus restauranteurs

On 14th May 2013,[1] seemingly out of the blue, the people and governments, and more importantly the restauranteurs, of the EU were informed by a Commission official that ‘From the first of January next year, we can guarantee the quality and authenticity of olive oil …. And we do that by having new rules on labelling, concerning the category and origin of olive oil.’ After explaining that the new rules will force restaurants to serve sealed, throw-away bottles of oil to customers instead of refillable flasks or bowls, he concluded by saying that ‘This is good news for consumers in Europe.’[2]

The sudden ban on a traditional way of serving olive oil provoked widespread press, political and public protest in a number of countries, and, in those like the UK where olive oil was a less central part of daily cuisine, ridicule. Nine days later, the Commission withdrew the proposal.[3]

The episode raised a number of questions about the nature of the EU’s legislative process, and about the power of organized lobbies. However, before illustrating these, it is fair to point out that widespread anger and protests after the regulation was announced gave a brief glimpse of a rare sight in the EU: a European demos, or a section of it at least. On this rather narrow issue, press and people in several member countries felt and spoke as one, and their voices led to the withdrawal of the regulation.

The ban originated in Portugal in 2004. Olive growers had long tried to stop restauranteurs passing off cheap oil as a quality product, and in 2005 persuaded the government to pass legislation requiring tamper-proof, non-refillable olive oil bottles in cafés and restaurants. Failure to do so was an offence punishable by fines.

Casa do Azeite, Portugal’s olive oil association, said that the legislation had helped to boost consumption of extra virgin olive oil. In 2006 Italy passed similar legislation. Following the economic crisis in 2008, European extra virgin olive oil was losing market share to cheaper products, some imported from North Africa and Turkey.[4] In June 2009 the EU’s Advisory Group on Olives and Derived Products, whose meetings are not open to the public or press, looked for a strategy to combat falling prices. In April 2012 Interprofesional del Aceite de Oliva Español, which represents Spain’s olive oil producers, met with Dacian Ciolos, the then EU Agricultural Commissioner, and suggested a series of measures to revive the olive oil industry, among them the proposal that olive oil in restaurants be served in labelled tamper-proof non-reusable bottles.

In February 2013 the proposal was voted on by a ‘comitology’ committee called the Management Committee for the Common Organisation of Agricultural Markets, which has the power to implement directives without the need for a vote in the European Parliament. However, the committee failed to agree to it, until it came back before the committee on 14 May 2013, when, with the support of the Commissioner Ciolos, it was passed.

The measure was presented, as we have seen, as a consumer protection measure. Since the sealed, throwaway bottles were to replace bowls and refillable jars of olive oil in every café, bar and restaurant across the EU, it seems likely that the Brussels lobbyists of companies who bottle, label and distribute olive oil or other sauces and condiments were involved, since it would transfer the business of thousands of local olive oil growers, and family-based supply chains, into their hands.

Indeed, after the proposal was dropped, COPA-COGECA, a federation of agricultural lobby groups, emerged to express its ‘serious regret’ about the reversal of a measure that ‘has been discussed for over a year and was supported by 15 Member States and passed through all the correct legal procedures.’[5] These procedures did not, it seems, involve the European Parliament.

Vaping: public health and the fate of an infant industry

On 3 April 2014 the Commission proposed to update the Tobacco Products Directive (TPD) of 2001 ostensibly to harmonise tobacco regulation, ensure the smooth running of the Single Market and a high level of health protection for consumers.[6] Later in the same year it was approved by the European Parliament and Council, and has to be fully implemented in each member state by 20 May 2016.

However, the revised TPD was rather more than an update since Article 20 includes strict regulation of an industry that did not exist in 2001, that of e-cigarette regulation: All ingredients contained in the device and its emissions have to be measured and disclosed by the manufacturer; the liquid inside is not allowed to contain more than 20mg/ml of nicotine; refill cartridges are limited in size to 10ml for liquid cartridges and 2ml for disposable e-cigarettes; most vaping advertisements are banned; and it imposes a six-month standstill period for new vaping products, following notification by the manufacturer of an intention to sell a product. According to the Commission, these new regulations will ensure that e-cigarettes are safer and of better quality.

According to some observers, safety and quality are not the only reasons for these regulations since they happen to be extremely beneficial for big tobacco companies, since this new competitor will be regulated more severely than they are. E-cigarette manufacturers will, for example, have to measure and list all the ingredients in their product’s emissions, whereas tobacco companies only have to test for three emissions: tar, carbon monoxide and nicotine. The size rules on cartridges happen to hit the most popular e-cigarettes, and the content rules means that the e-cigarette will be an exceedingly weak cigarette substitute. The mandatory standstill and advertising ban will obviously hinder and obstruct the emergence of the only significant direct competitor tobacco companies have ever faced.[7]

Most of these new companies are start-ups without representation in Brussels. However one of them, Blackburn-based Totally Wicked, has decided to challenge Article 20 in the European Court.[8] A decision was expected in early 2016, but as of March 31st no decision has been made. The Commission seldom loses before the European Court, so it will be an important one. If Totally Wicked fails, the Commission, aided by big tobacco firms, will have crushed an infant industry.

The issue is complicated by the fact that research was still emerging as the Commission was deciding to legislate. However, well before the European Parliament voted on the Commission’s proposed directive, 15 leading researchers in the field wrote to the EU’s health commissioner Tonio Borg. According to them, many of the proposed regulations were ‘of no benefit to consumers… would incur large unnecessary costs’ and ‘since they were not required of from cigarette or tobacco manufacturers would create a market advantage for the much more dangerous tobacco cigarettes.’ [9]

Their final sentence read: ‘If wisely regulated, electronic cigarettes have the potential to obsolete cigarettes and to save millions of lives worldwide. Excessive regulation, on the contrary, will contribute to maintain the existing levels of smoking-related disease, death and health care costs.’ [10]

Journey to work: the Tyco windfall for mobile workers

Travelling to and from work is not normally considered working time. However, a 2015 ruling by the Court of Justice of the European Union (CJEU) states that for workers who have no fixed place of work it is working time, and must therefore be paid as such.[11] The UK has to ensure that its legislation complies with this ruling.

The ruling originates from a case in 2011 involving Tyco, a Spanish security company. It closed all of its regional offices, and controlled all its employees from its headquarters. Before these closures, working time started and ended when an employee checked into and out of the regional office. After the closures, employees travelled directly from their home to customers. Tyco decided that working time would begin from the moment an employee reached their first assignment of the day and would end when they left their last assignment of the day.

Employees, believing that Tyco had breached Spanish working time rules, brought a complaint to the Spanish High Court. The Spanish National High Court referred the case to the CJEU to rule on whether Tyco had breached the EU’s Working Time Directive (WTD).[12]

The Court decided that it had, and that the time non-fixed workers spend travelling between their home and their first and last place of work constitutes working time under the Working Time Directive. Working time therefore began when they closed their own front door. According to the Court, the journey constitutes working time because it is an integral part of providing services to customers, and during these journeys the worker is at the employer’s disposal.[13] Also, the workers’ journeys at the beginning and end of the day to and from customers were regarded as working time by Tyco before the closure of the regional offices. Because Tyco previously deemed these journeys as part of working time, driving to and from the first and last customer is part of the employee’s job role. Also, forcing employees to bear the burden of Tyco’s decision to close the offices would go against their health and safety.

The judgement will mean difficult decisions for employers and employees of UK companies with mobile workers.[14] When travelling hours are added onto existing hours, some employees would be exceeding the WTD regulation of an average working week of 48 hours, varying of course according to the distance they travelled to their first appointment. The Court recognized employers are free to determine payment for the opening and closing travelling time, but could not, of course, exempt them from minimum wage legislation.

This ruling is more consistent with traditional continental labour relations, where the state has commonly intervened to enforce or impose agreements on both sides, usually because the trade unions were incapable of doing it by themselves. Traditional British practice was for the two sides to negotiate, agree and enforce their own agreements. However, as their membership has declined, British trade unions have become more willing to accept intervention by the European state on their behalf, and especially windfalls like this Tyco decision.

It has yet to be seen how firms will adjust to the new regime. They may invite employees to voluntarily exempt themselves from the WTD[15] [16], invent bogus regional offices, or simply accept that their mobile work force must spend less time at the premises of work, to account for travel time, and raise prices to compensate for this drop.

The European Arrest Warrant: faster extradition at a price

When first proposed by the European Commission in 2001, the European Arrest Warrant (EAW) was primarily a part of European state-building, of a piece with the euro. There was no public clamour about the large number of German criminals who could not be extradited from the UK, or British offenders living in France. No doubt, as today, a fair number of the British criminal classes preferred to live on the Costa del Sol, out of sight of British police, but they were not protected from extradition.

The 2001 proposal of the European Commission was presented simply as a means of simplifying the process of extradition between EU member states, by obliging member states to extradite on request the citizens of another to stand trial or serve out a sentence.[17] The proposal was approved by the European Parliament on 6 February 2002 and formally adopted by the Council on 13 June 2002.

The UK implemented the EAW Framework Decision via parts one and three of the 2003 Extradition Act, which came into force on 1 January 2004, though its operation has forced the UK to make constant amendments to this Act.[18]

Its main, and perhaps sole, merit is that it has reduced the time taken for extradition. In 2013 it took on average 10 months to arrange extradition from a non-EU state, and only 3 months from another EU country.[19]

One disadvantage is that the UK receives far more EAWs than it issues, many for relatively minor crimes which are thought to be a waste of police time and costly for the taxpayer. Poland has, for example, sent the UK extradition requests in connection with piglet rustling, exceeding a credit card limit, and the theft of a wheelbarrow, teddy bear and a pudding.[20]

However, the most important objection is that it requires the UK to accept a foreign warrant without an extensive enquiry into the facts or circumstances behind that warrant. It therefore requires the UK to arrest the person named in the warrant without affording them many of the protections that have been provided under English and British law for centuries, and to send them to jurisdictions where there is no legal limit on pre-trial detention. It is a clash of fundamentally different legal systems, or as Wheeler put it, the death of Magna Carta.[21]

As a result, many British nationals have served lengthy pre-trial detentions abroad. Andrew Symeou spent 10 months in pre-trial detention in Greece, before being acquitted. He told the House of Commons Committee:

You cannot imagine what it has done to me and what it has done to my family. It has changed our lives and it is unacceptable.[22]

In July 2013 the Home Secretary set out specific proposals to tackle these issues. These proposals were implemented in part 12 of the Antisocial Behaviour, Crime and Policing Act 2014.[23] To tackle the large number of EAWs submitted to the UK for minor crimes, the Act states that an arrest warrant can be refused by the UK for minor crimes. To stop British citizens facing lengthy pre-trial detentions, the Act states that extradition can only occur if the requesting country has already confirmed that they will charge and try the suspect. However, how these measures will play out in the future is unclear.

Bats: do they need EU protection and regulation?

Adopted in 1992, the Habitats Directive (92/43/EEC) seeks to enhance the conservation of rare, threatened or endemic animal and plant species.[24] It acts alongside the 2009 Birds Directive (2009/147/EC) to enhance wildlife and nature conservation. It also establishes the EU Natura 2000 ecological network of protected areas, which are safeguarded against potentially damaging developments.

The Habitats Directive is based on an international treaty: the Agreement on the Conservation of Populations of European Bats. It was ratified in 1991 by Germany, The Netherlands, Norway, Sweden, and the UK. In 2001 the Agreement became part of the United Nations Environment Programme (UNEP). There was no evidence that this programme was defective in any respect, but nonetheless the European Commission felt it necessary to supplement and specify its provisions, meaning that the UK is now constrained by both international and EU texts, whereas non-EU states could refer to just the original international agreement.

This has led to problems with UK bat legislation, since the EU Directive does not create different solutions for dealing with the different roosting behaviours of bats. In some member states, such as the UK, bats tend to roost in churches, whereas in Germany they prefer trees. [25] It is generally more costly to obey legislation when bats roost in buildings, especially old buildings with complex regulations. Some UK property owners have had to pay for expensive surveys, a European Protected Species Mitigation Licence, employ an ecologist, and even install a bat flap.[26]

Legislation made at the national level, in accordance with the UNEP, might be better able to take into account bats’ varied roosting behaviours and countries’ varied building regulations. Does the EU benefit from having a uniform wildlife conservation regulation? And more importantly, do European bats?

Notes

[1] Commission implementing regulation (EU) No 29/2012 on marketing standards of olive oil [14 January] OJ L 12

[2] http://www.pri.org/stories/2013-05-22/spaniards-outraged-new-strict-eu-regulations-olive-oil 22nd May 2013

[3] Waterfield, B. (2013) EU drops olive oil ban after public outcry, Daily Telegraph, 23 May [online]. Available at: http://www.telegraph.co.uk/news/worldnews/europe/eu/10076201/EU-drops-olive-oil-jug-ban-after-public-outcry.html

[4] Mendick, R. (2013) The great olive oil farce, Daily Telegraph, 26 May [online]. Available at: http://www.telegraph.co.uk/foodanddrink/foodanddrinknews/10080827/The-great-olive-oil-farce.html

[5] COPA-COGECA, Committee of Professional Agricultural Organizations in the EU Press release 23rd May 2013 http://www.copa-cogeca.be

[6] European Parliament and Council Directive 2014/40/EU on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC [3 April] OJ L 127/1. The original directive 2001/37/EC.

[7] Ridley, M. (2015) ‘No smoke without fire in this EU nightmare’, The Times, 28 September [online]. Available at: http://www.thetimes.co.uk/tto/opinion/columnists/article4569316.ece

[8] http://article20legalchallenge.com/media/

[9] Scientific errors in the Tobacco Products Directive: a letter sent by various scientists to the European Union, 17 January 2014 [online]. Available at: http://www.ecigarette-research.com/web/index.php/2013-04-07-09-50-07/2014/149-tpd-errors

[10] Ibid.

[11] Case C-266/14 Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA [2015] Opinion of AG Y.Bot.

[12] European Parliament and Council Directive 2003/88/EC concerning certain aspects of the organisation of working time [4 November] OJ L 299

[13] CJEU Press Release, 99/15 (Sep. 10, 2015). Available at: http://curia.europa.eu/jcms/upload/docs/application/pdf/2015-09/cp150099en.pdf

[14] Javaid, M. (2015) What the European Court travel ruling means for UK employers, CIPD, 15 September [online]. Available at: http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2015/09/15/what-the-ecj-travel-ruling-means-for-uk-employers.aspx

[15] British responses to EU labour market regulation as a whole are described in HMG (2014), Review of the Balance of Competences between the United Kingdom and the European Union Social and Employment Policy [online]. Available at: https://www.gov.uk/government/consultations/ review-of-uk-and-eu-balance-of-competences-call-for-evidence-on-social-and-employment-policy

[16] Ensuring this particular voluntary opt out was once considered part of David Cameron’s renegotiation, but subsequently appears to have been forgotten, perhaps because it has been widely accepted in the UK. ‘Business groups cry foul as EU rules commuting time is ‘work’, Daily Telegraph 10 Sept 2015

[17] European Commission proposal (COM/2001/0522) for a Council framework Decision on the European arrest warrant and the surrender procedures between the Member States [27 November] OJ C 332E.

[18]Dawson, J. Lipscombe, S. (2015) The European arrest warrant, House of Commons briefing paper 07016 [online]. Available at: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN07016#fullreport

[19] HM Government, Decision pursuant to Article 10 of Protocol 36 to the Treaty on the Functioning of the European Union, July 2013, Cm 8671, page 94

[20] House of Commons Home Affairs Committee Pre-Lisbon Treaty EU police and criminal justice measures: the UK’s opt-in decision Ninth Report of Session 2013–14 Report, together with formal minutes, oral and written evidence. 29 October 2013 http://www.publications.parliament.uk/pa/cm201314/cmselect/cmhaff/615/615.pdf

[21] Wheeler, S. (2015) Eight hundred years later, the death of Magna Carta, Civitas [online]: http://www.civitas.org.uk/  content/files/europedebateno5.pdf

[22] Q133. House of Commons, op.cit.

[23] Antisocial Behaviour, Crime and Policing Act 2014, part 12. Available at: http://www.legislation.gov.uk/ukpga/2014/12/contents/enacted/data.htm

[24] European Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora [22 July] OJ L 206.

[25] p.412, Chapter 13 Agriculture and Rural Communities. In: Change or Go, Business for Britain, 2015 [online]. Available at: http://businessforbritain.org/change-or-go/

[26] The bat industry has no doubt been helped by EU regulation but it appears to be a British rather than EU phenomenon. Coleridge, N. (2013) Holy bat protection! That’s cost me £10,000, Daily Telegraph, 25 January [online]. Available at: http://www.telegraph.co.uk/news/earth/wildlife/9827052/Holy-bat-protection-Thats-cost-me-10000.html

 

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