Explaining the EU deal: the ‘emergency brake’

The Prime Minister’s renegotiation deal on the UK’s European Union membership is a package of changes to EU rules. It was agreed by European leaders on 19 February 2016. In this series of articles, some of the country’s leading experts in EU law explain the deal and what it changes.

Late last year, David Cameron proposed “that people coming to Britain from the EU must live here and contribute for four years before they qualify for in-work benefits or social housing”, in order to reduce immigration.

The EU deal suggests an ‘emergency brake’ on benefits.

Why a brake on benefits rather than immigration?

The EU guarantees the free movement of workers. This allows an individual from any of the 28 member countries to go and work in any other member country.

It also guarantees the right to be treated equally, including when it comes to “social and tax advantages”.

That means that a migrant worker is currently entitled to social welfare, including in-work benefits, in the country where she works.

The government claims that the benefits system in the UK, together with the higher salaries arising from the comparative strength of the pound, acts as an “artificial” draw for workers from other EU countries. This claim is disputed.

What does the EU deal change?

The EU deal suggests changing EU rules to set up a so-called ‘emergency brake’ (officially referred to as the ‘alert and safeguard’ mechanism).

Under the proposal, any member country could notify EU authorities that it has experienced an inflow of workers of “exceptional magnitude” over “an extended period of time”; and that:

• the size of the inflow affects “essential aspects of its social security system”; or
• leads to serious difficulties in its employment market; or
• is putting “excessive pressure” on public services.

In those circumstances EU lawmakers could authorise that country to restrict in-work benefits for new migrant workers for up to four years after they start working. They wouldn’t have to give their permission.

If they did, exclusion from such benefits would be phased out over time: it would be absolute to start with but benefits would gradually increase.

These restrictions wouldn’t apply to immigrants already working here.

But they could be kept in place for "EU workers arriving during a period of 7 years" after the brake is triggered.

How soon could the emergency brake be triggered?

The proposed mechanism requires EU law to be altered. That’s not something the EU leaders can manage on their own.

First of all, the deal will not kick in until after the UK has voted on the forthcoming referendum on EU membership. And, of course, it assumes that the UK votes to remain in.

After that, the new mechanism would still need to be passed through the normal lawmaking process. That means winning the support of the EU’s Council and the European Parliament.

The European Parliament is not a part of the current deal. It might oppose a change in the law.

If the law is passed, then the European Commission, or EU administration, would have to put a proposal to the Council for activation of the emergency brake in the UK’s case.

The Commission has already stated that it considers the UK would be justified in triggering the emergency brake in “the full expectation of obtaining approval”.

But the Council would still have to give its approval.

And the new rules would also have to be compatible with the EU treaties, as this agreement can’t amend them. So it's possible there will be a challenge to the emergency brake at the EU court at some stage.

Update 22 February

We revised the article to take into account the final version of the EU deal published on 19 February, rather than the draft of 2 February as in the original.