"After long hours of negotiations the European Council reached a ‘new settlement’ on the UK’s membership of the EU. Many elements of the agreement seem symbolic, but the section regarding the social rights of EU migrant citizens has high political, and potentially legal, significance.
In fact, it aims to discriminate against EU migrant citizens from Central and Eastern Europe (CEE). Seemingly, the threat of the UK leaving the EU was perceived as so serious and potentially so costly for the Union, that Heads of State and Government sacrificed the core principle of non-discrimination.
However, should the British electorate vote to leave the EU, the principles of the EU will remain intact, as the European Council has agreed it will not proceed with the legislation to enact measures it has agreed upon.
Should the British electorate vote to remain in the EU, the ‘emergency brake’ to curtail in-work benefits and the proposed reduction of child benefits in line with the living conditions in other member states could still be stopped by the European Parliament. In fact, MEPs will have to agree on the legislation to amend the respective directive and regulation.
Moreover, the European Court of Justice (ECJ) has the right to eventually declare the legislative act incorporating these amendments as void, should it, for instance, decide they violate the principle of anti-discrimination enshrined in the Treaty of the Functioning of the European Union. There are two problems which may catch the eye of these institutions.
First, it will be interesting to see how the Commission designs the specific legislative proposal. The idea is to adjust child benefit paid by the UK to EU migrant citizens to reflect the living conditions in the country of the child’s residence. The difficulty is thus how to capture this difference in living standards among member states.
Let’s assume the Commission takes GDP per capita in Purchasing Power Standards (PPS) as a benchmark. Merely adjusting child benefit paid by the UK downwards for countries with lower living standards would surely be discriminatory, and to avoid such a problem the benefits paid for children living abroad in a number of member states – such as Denmark, Ireland and Germany – would actually have to be significantly increased as the living standards in these countries are higher.
Furthermore, based on the current compromise a Welsh parent working in London with his/her children living in West Wales, with a GDP per capita in PPS of 67.4 per cent of the EU average, would receive the full UK child benefit, whereas a Hungarian worker employed in London with his/her children living in Hungary – with an average GDP per capita in PPS of 68 per cent – would only receive approximately two-thirds of the benefit paid to the Welsh worker.
Such an approach would seem to clearly discriminate against CEE workers based on nationality. It could therefore be opposed by the European Parliament or eventually challenged in the ECJ."
Part of the new settlement which you say does not exist.
It doesn't any more thanks to Brexit.
