Lobbying !

[BJSLIV]

We may all have lots of ideas as to what the phrase economically active could mean however there is a standardised  definition used by economists when compiling the statistics.

Put simply this defines economically active as those who are either employed or unemployed but looking for work. Those who , by choice, withdraw from the labour market are economically inactive. The supply of goods or services to one's own household does not count as economic activity.

 

[makfai]

I understand that FHI will be publishing advice on their site imminently which will be of value to E106 holders.

In order not to delay matters I have been asked to publish, in advance, the following draft letter - English version only at the moment but I understand FHI will also be providing a French translation – for the consideration of those whose E106 cover expires shortly. 

Those in that category are advised to formally APPLY NOW for affiliation to the CMU effective from the date on which their E106 expires and, if the application is refused, to formally appeal.

 

Dear

Affiliation to the CMU

I am a British Citizen and have been resident in France since…… I am currently an E106 holder but my E106 will expire on ………….

I am forwarding to you my application to become affiliated to the CMU with effect from………….

I wish to register with you now my intent - if you reject this application - to lodge a formal appeal and to supply you with additional material in support of that appeal.

In this regard I would courteously draw your attention to Article 41 of The Charter of Fundamental Rights of The European Union (2000/C 364/01) which says:

 Article 41

 Right to good administration

1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.

2. This right includes:

• the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;

• the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;

•  the obligation of the administration to give reasons for its decisions.

 If you refuse my request to affiliate to the CMU,

1.      I would like you to recognise my right to be heard before any individual measure which would affect me adversely is taken, namely excluding me from affiliation to the CMU; and

2.      I would like you to acknowledge this letter as my formal application - under Article 41 of The Charter of Fundamental Rights of The European Union (2000/C 364/01) – for approval of my affiliation to the CMU on a temporary basis until my appeal against the decision to exclude me has been ultimately resolved.

 

Thank you for your attention.

 

……  ……….

………………………………………………….

 

 

This is the link to the French version of the Charter http://www.europarl.europa.eu/charter/pdf/text_fr.pdf

  CHARTE DES DROITS FONDAMENTAUX DE L'UNION EUROPÉENNE (2000/C 364/01)

 This is the full text of Article 41 in French

 

Article 41

Droit à une bonne administration

1. Toute personne a le droit de voir ses affaires traitées impartialement, équitablement et dans un délai raisonnable par les institutions et organes de l'Union.

2. Ce droit comporte notamment:

·         le droit de toute personne d'être entendue avant qu'une mesure individuelle qui l'affecterait défavorablement ne soit prise à son encontre;

·         le droit d'accès de toute personne au dossier qui la concerne, dans le respect des intérêts légitimes de la confidentialité et du secret professionnel et des affaires;

·         l'obligation pour l'administration de motiver ses décisions.

3. Toute personne a droit à la réparation par la Communauté des dommages causés par les institutions, ou par leurs agents dans l'exercice de leurs fonctions, conformément aux principes généraux communs aux droits des États membres.

4. Toute personne peut s'adresser aux institutions de l'Union dans une des langues des traités et doit recevoir une réponse dans la même langue.

 

[Ron Avery]

This right includes:

• the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;

• the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;

hang on, how can this legislation be seen as an individual measure?  It affects everybody with an E 106 now, and in the future.  Are you seriously going to argue that the French, UK and other EU governments have got to consult and hear objections from every person before enacting any legislation that affects then individually?  Does that include measures like varying the rate of tax on fuel, income tax, national insurance, social charges, tax habitation, fonciere ete etc? .

If this change is an individual measure which would affect a person individually, then by your criteria any increase in taxes would be an individual measure adversely affecting an individual even though the decision was taken by a democratically elected government and applied collectively, but at the same time affecting us as individuals.

 So how is the change in the law on the right of residency and the change in healthcare provision different to any other law affecting a proportion of the population and therefore warrants an individual hearing?

[Sunday Driver]

There is no need to write a letter quoting EU laws and charters - there is already an established formal appeal process for contesting a CPAM decision. 

Each caisse has a Commission de recours amiable (CRA) which considers your case in the first instance.  If your appeal is rejected, then you have the option of referring it to the Tribunal des affairs de sécurité sociale (TASS).  As a last resort, you can refer your case to the Court d'appel and/or the Court de cassation.

 

[Sunday Driver]

Here's one for makfai....

Following on from the earlier discussion over the definition of 'economically inactive'

The Frattini Guide to 2004/38/EC  Chapter 6: "Your right to reside for more than three months and up to five years" states -

Your right to reside for more than three months is subject to certain conditions.

Workers, self employed and providers of services: 

The Directive provides that workers and self-employed persons have the right to reside without any conditions other than being a worker or self-employed person. The same right applies to providers of services.

Retention of worker or self employed status:

Union citizens retain the status of workers and self-employed persons under certain conditions if they are unable to work as the result of an illness or accident; are in duly  recorded involuntarily unemployment or have embarked on vocational training.

(Frattini's emphasis)

This would suggest that if you are in duly recorded involuntary unemployement, eg you were made redundant from your former job and took the opportunity to move to France, then you retain your worker status and as a result, you do not have to satisfy the 'inactive' conditions of resources and own healthcare....

[;-)]

 

 

[krusty]

I am a bit late asking this ,but what grounds will an appeal will be looked on favorably ?

I say a bit late because I have already sent mine (after being refused admission to CMU). I used the argument that because of existing illnesses I would not be able to get PHI.

[Sunday Driver]

As with all appeals, it will be based upon the regulations/procedures in force at the time of the decision of the CPAM to refuse your admission to the CMU. If they were following the rules, which currently do not take into account inablility to obtain PHI, then your appeal is likely to fail. 

The appeal route is only useful as a delaying tactic for those already affiliated under CMU and facing exclusion, because there would be grounds for maintaining the exisiting cover whilst the appeal is in progress.  However, in your case, as you are not already affiliated, I don't see this applying.

 

 

[Sunday Driver]

Just as an add-on, Krusty...

If the expected announcement confirms the concessions for persons unable to obtain PHI, then I expect the CPAM mediator will just put your dossier to the bottom of his in-tray because your appeal will no longer be applicable.

 

 

[krusty]

at the bottom ? .....thanks SD [:D][;-)]

[makfai]

[quote user="Sunday Driver"]

There is no need to write a letter quoting EU laws and charters - there is already an established formal appeal process for contesting a CPAM decision. 

Each caisse has a Commission de recours amiable (CRA) which considers your case in the first instance.  If your appeal is rejected, then you have the option of referring it to the Tribunal des affairs de sécurité sociale (TASS).  As a last resort, you can refer your case to the Court d'appel and/or the Court de cassation.

 

[/quote]

 

I am afraid you have missed the point.  The letter is not to establish a right to appeal - the system you outlined is clear. 

If you read what the letter says, it is asking it asks for affiliation to the CMU until the appeal is concluded. 

[makfai]

[quote user="krusty"]

I am a bit late asking this ,but what grounds will an appeal will be looked on favorably ?

I say a bit late because I have already sent mine (after being refused admission to CMU). I used the argument that because of existing illnesses I would not be able to get PHI.

[/quote]

 

I think you will find some advice on the FHI site and I understand that more is due imminently.  You may wish to contact them.  You can always add more representations to your appeal

[makfai]

[quote user="Sunday Driver"]

Here's one for makfai....

This would suggest that if you are in duly recorded involuntary unemployement, eg you were made redundant from your former job and took the opportunity to move to France, then you retain your worker status and as a result, you do not have to satisfy the 'inactive' conditions of resources and own healthcare....

[;-)]

[/quote]

Good one...we can add that to the mix!

Although we have been a bit lighthearted about this definition you may be interested to hear that I have been told by more than one person that the staff at their local CPAM have said 'You will be OK, you are not 'inactive' if you pay tax' only to have to withdraw that!

On a serious note I don't know why that is not the criterion.  Surely the concept is based on establishing a benchmark to reflect whether persons are contributing to revenue or not.  Someone may not be employed or self-employed but still have a significant amount of taxable income. 

I don't know for sure but I think there will be people who are classed as 'inactive' and who are already affiliated to the CMU who are paying more in overall contributions (all types) than someone who is only meeting the 60 hours per month employment criterion.

Shall we have another campaign to get a new definition?

 

[Boiling a frog]

I would like to raize a few points regarding the letter to CPAM and the appeal

Has the Charter of Fundemental rights any legal basis?

From what I can see it was to be included in the European Constitution which as we all know is now a distant memory

Even if the Charter has any legal basis I suggest that Article 41 is about the right to good administration by the European Union and its bodies such as the commission, the parliament etc , not of the individual governments and their institutions

Here is the complete text of Artice 41

Article 41

Right to good administration

1. Every person has the right to have his or her affairs handled impartially, fairly and within a

reasonable time by the institutions and bodies of the Union.

2. This right includes:

. the right of every person to be heard, before any individual measure which would affect him or her

adversely is taken;

. the right of every person to have access to his or her file, while respecting the legitimate interests of

confidentiality and of professional and business secrecy;

. the obligation of the administration to give reasons for its decisions.

3. Every person has the right to have the Community make good any damage caused by its institutions

or by its servants in the performance of their duties, in accordance with the general principles

common to the laws of the Member States.

4. Every person may write to the institutions of the Union in one of the languages of the Treaties and

must have an answer in the same language.

Now why does it specifically say that one can right in any of the languages of the treaties and the person must have an answer in the same language,is it because this Article 41 refers in its entirety  to the European union institutions not national government institutions?

Has anyone sought legal advice on these points prior to firing off letters which may contain totally irrelevant  statements

[makfai]

[quote user="Boiling a frog"]

Has the Charter of Fundemental rights any legal basis?

[/quote]

Leave it to you to decide.  Please let us know what you think

http://www.eucharter.org/

Despite the no votes in France and the Netherlands against the EU Constitution which sent a shockwave through the establishment of the European Union and brought uncertainty to the existence of the EU Charter, the EU Charter will remain an important human rights document to which the EU institutions have committed themselves.

..................................................

Is the Charter just a wish list with no binding power? http://ec.europa.eu/justice_home/unit/charte/en/faqs.html#21

Since December 2000 and the Charter has increasingly made its existence felt. More and more EU citizens are referring to its provisions in the letters, petitions and complaints they send to the European Parliament and Commission. The proclamation in December 2000 represented a solemn commitment by three institutions - the European Parliament, the Council and the Commission - to respect the Charter.

While awaiting the ratification of the European Constitution by 1st November 2006 (Article IV-447) by Member States of the Union, it is obvious that the Council of Ministers of the European Union and the European Commission cannot ignore, when they act in a legislative capacity, a text prepared at the behest of the European Council (the heads of state and government of Member States), and by every national and European source of legitimacy - the European Parliament, national parliaments, representatives of Member State governments and the Commission - united within a single framework. Similarly, the Court of Justice of the European Communities and national courts are already drawing inspiration from it. The Charter is becoming binding through its being interpreted as enshrining the general principles of Community law.

 

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/1916&format=HTML&aged=0&language=EN&guiLanguage=en

Brussels, 12 December 2007

Charter of Fundamental Rights: the Presidents of the Commission, European Parliament and Council sign and solemnly proclaim the Charter in Strasbourg

The Presidents of the Commision, European Parliament,and the Council today signed and solemnly proclaimed the Charter of Fundamental Rights of the European Union in Strasbourg, thus opening the way for the signing of the Treaty of Lisbon tomorrow. The Charter will give European citizens a catalogue of rights legally binding on the institutions and bodies of the European Union and on the Member States when they are implementing EU law. This is a significant step on the path to European integration.

On the occasion of the signing of the Charter today, the President of the European Commission, Mr José Manuel Barroso, said that by signing and proclaiming the Charter, the Presidents of the European Parliament, the Council and the Commission were publicly signalling their indelible wish to make it legally binding on the Union's institutions. As a result, citizens' rights would be strengthened in such crucial areas as human dignity, fundamental freedoms, equality, solidarity, citizenship and justice. By inserting a reference to the Charter into the Treaty to be signed tomorrow in Lisbon, he said, the EU was taking European integration one significant step further.

The Charter will usefully complement other international instruments such as the European Convention on Human Rights, to which the EU is also likely to become a party.

 

[Boiling a frog]

So perhaps from today it has legality,but is it retrospective and also

It says

1. Every person has the right to have his or her affairs handled impartially, fairly and within a

reasonable time by the institutions and bodies of the Union.

But what are the institutions and bodies of the union.

EU institutions and other bodies

The European Union (EU) is not a federation like the United States. Nor is it simply an organisation for co-operation between governments, like the United Nations. It is, in fact, unique. The countries that make up the EU (its ‘member states’) remain independent sovereign nations but they pool their sovereignty in order to gain a strength and world influence none of them could have on their own.

Pooling sovereignty means, in practice, that the member states delegate some of their decision-making powers to shared institutions they have created, so that decisions on specific matters of joint interest can be made democratically at European level.

The EU's decision-making process in general and the co-decision procedure in particular involve three main institutions:

• the European Parliament (EP), which represents the EU’s citizens and is directly elected by them;

• the Council of the European Union, which represents the individual member states;

• the European Commission, which seeks to uphold the interests of the Union as a whole.

This ‘institutional triangle’ produces the policies and laws that apply throughout the EU. In principle, it is the Commission that proposes new laws, but it is the Parliament and Council that adopt them.

Two other institutions have a vital part to play: the Court of Justice upholds the rule of European law, and the Court of Auditors checks the financing of the Union’s activities.

The powers and responsibilities of these institutions are laid down in the Treaties, which are the foundation of everything the EU does. They also lay down the rules and procedures that the EU institutions must follow. The Treaties are agreed by the presidents and/or prime ministers of all the EU countries, and ratified by their parliaments.

In addition to its institutions, the EU has a number of other bodies that play specialised roles:

• the European Economic and Social Committee represents civil society, employers and employees;

• the Committee of the Regions represents regional and local authorities;

• the European Investment Bank finances EU investment projects, and helps small businesses via the European Investment Fund;

• the European Central Bank is responsible for European monetary policy;

• the European Ombudsman investigates complaints about maladministration by EU institutions and bodies;

• the European Data Protection Supervisor safeguards the privacy of people’s personal data;

• the Office for Official Publications of the European Communities publishes information about the EU;

• the European Personnel Selection Office recruits staff for the EU institutions and other bodies;

• the European Administrative School task is to provide training in specific areas for members of EU staff.

No mention of individual Governments and their institutions .So is article 41 relevant to a decision made by the French Government?

[makfai]

[quote user="Boiling a frog"]

So perhaps from today it has legality,but is it retrospective and also

No mention of individual Governments and their institutions .So is article 41 relevant to a decision made by the French Government?

[/quote]

I don't wish to appear churlish but I sense I am becoming your researcher in all this

Fundamentally, people can do whatever they like in regard to the draft letter.

What is being sought is a way to provide a route out of this mess for those facing problems next month.  That route needs in part to be underpined with legal arguments and principles.  Whether Article 41 applies in this case is a matter you may argue if you wish but I think it has relevance even if it was not to apply directly to a specific decision. It sets a benchmark which the EU AS A WHOLE recognises for the treatment of people.  It would therefore have relevance in any future legal proceedings even if it did NOT apply directly to the decision.

So saying I would refer you to: this document:

CHARTE 4473/00     ket/GBK/jrb      2      JUR      EN

Explanation

Article 41 is based on the existence of a Community subject to the rule of law whose characteristics were developed in the case law which enshrined inter alia the principle of good administration (see inter alia Court of Justice judgment of 31 March 1992 in Case C-255/90 P, Burban [1992] ECR I-2253, and Court of First Instance judgments of 18 September 1995 in Case T-167/94 Nölle [1995] ECR II-2589, and 9 July 1999 in Case T-231/97 New Europe Consulting and others [1999] ECR II-2403). The wording for that right in the first two paragraphs results from the case law (Court of Justice judgment of 15 October 1987 in Case 222/86 Heylens [1987] ECR 4097, paragraph 15 of the grounds, judgment of 18 October 1989 in Case 374/87 Orkem [1989] ECR 3283, judgment of 21 November 1991 in Case C-269/90 TU München [1991] ECR I-5469, and Court of First Instance judgments of 6 December 1994 in Case T-450/93 Lisrestal [1994] ECR II-1177, 18 September 1995 in Case T-167/94 Nölle [1995] ECR II-258), and the wording regarding the obligation to give reasons comes from Article 253 of the EC Treaty.

Paragraph 3 reproduces the right guaranteed by Article 288 of the EC Treaty.

Paragraph 4 reproduces the right guaranteed by the third paragraph of Article 21 of the EC Treaty.In accordance with Article 52(2) of the Charter, those rights are to be applied under the conditions and within the limits defined by the Treaties.

The right to an effective remedy, which is an important aspect of this question, is guaranteed in Article 47 of this Charter.

 

I would imagine that most people may be finding these legal arguments a little tedious.  I suggest we continue it 'off-forum' if you wish to pursue it.

In my own view, the question to be asked is purely one of 'Do I want to send that letter?'.

[Boiling a frog]

Sorry but I presume and I may be wrong that you are the author of this letter.

If you are not then please disregard the following.

I am asking whether this section does apply simply because many people will just look at the letter and without making any judgement as to its legal correctness send it off in the mistaken belief perhaps that the charter applies in the circumstances.

I would have thought that the author would have conducted some research as to the legallity and whether it applies in the circumstances.

My research suggests it does not.,but I am not an expert in European law, but I do have some knowledge of the reading and interpretation of law..

That is why I asked the question

Most people may find the legal arguements tedious but that is what it is all about. The letter sets out a legal challenge to the right of the French Govt to withdraw healthcare If this letter is based on a flawed premis it is doomed to failure..

 

[Glyn]

BAF,

If I was in the position of my E106 running out in January I would send as many letters as I could to whoever I saw fit, even if in your opinion it is 'doomed to failure'. As you admit, you are not an expert in european law and I would rather do something than sit on my hands and do nothing.

[makfai]

[quote user="Boiling a frog"]

Sorry but I presume and I may be wrong that you are the author of this letter.

If you are not then please disregard the following.

I am asking whether this section does apply simply because many people will just look at the letter and without making any judgement as to its legal correctness send it off in the mistaken belief perhaps that the charter applies in the circumstances.

I would have thought that the author would have conducted some research as to the legallity and whether it applies in the circumstances.

My research suggests it does not.,but I am not an expert in European law, but I do have some knowledge of the reading and interpretation of law..

That is why I asked the question

Most people may find the legal arguements tedious but that is what it is all about. The letter sets out a legal challenge to the right of the French Govt to withdraw healthcare If this letter is based on a flawed premis it is doomed to failure..

 

[/quote]

Correct..I am the author and have researched it.  I don't deny what you suggest, that 'the legal arguements (sic) [are] what it is all about'. What I was suggesting was, rather than people getting these lengthy exchanges dropping into their Inboxes, we could have exchanged any legal discussions 'off-forum' and any conclusions could then have been posted . This would have saved people wading through all that we are going-on about! 

However, let's continue on to the latest matter

If you want more evidence of the Charter's application then maybe this will be another valuable contribution: Treaty of Lisbon Article 6

"ARTICLE 6

1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

Frankly, I am now beginning to wonder if you are missing the point of the letter.  You say that: 'The letter sets out a legal challenge to the right of the French Govt to withdraw healthcare If this letter is based on a flawed premis it is doomed to failure..'  BUT the letter is only designed to underpin the temporary access to the CMU of individuals until their appeal is resolved. 

The letter is not part of the wider initiative to challenge the French Government's policy pursuant to the EU Directive.  It relies on the legal principle (not new) for such appeals etc of the right of every person to be heard, before any individual measure which would affect him or her adversely is taken.

So please do not see this as a plank in the platform of the strategic challenge to the application of EU Directive 2004/38EC.  The letter relates solely to a temporary stay of an individual measure which would affect the appellant until his/her appeal is resolved.

I also think you may be missing the tactical point of the letter.  There is clearly no guarantee being offered to anyone that any letter will bring success on any issue - in this case, that temporary access to the CMU will be given.....BUT if such is not applied for it is unlikely to be freely offered! To argue for temporary access one also needs to present reasonable grounds. 

Let us assume for the sake of the argument that you are right, and the Charter's influence does not extend to this specific decision.  Article 41 has, however, been endorsed by France as a benchmark for the 'administration of rights'.  It would surely be judged inconsistent by any court for France (along with other EU States) to have endorsed a principle and then not abide by the principle it has endorsed.  If the authorities do reject the application from the E106 holder that the E106 holder not be excluded from the CMU until the appeal process is complete, then at least each individual appellant will have an argument that they have been treated unfairly and in a fashion inconsistent with France's own agreed legal standards. This may not get them into the CMU then but it may provide the necessary grounds for an appeal of that decision.

So, no matter who is correct, the academic argument we are having does not negate the PRACTICAL APPLICATION of the letter.  That is what is important for those considering sending it.

As I keep saying, it is entirely for each person to decide his/her own course of action.  These suggested texts are not compulsory and NONE come with a guarantee.  They simply provide an option for people to take or not as they see fit.

If you are happy to tell people the letters are valueless and should not be sent then fine, you are at liberty to do so.  I am equally at liberty to encourage the same people, on the grounds outlined above and because it would appear that they have nothing to lose, to use the letter as a basis for and in support of their own submissions.

 

[Caussenarde]

I vote

Makfai:  funf comma neun

BaF:      funf comma sieben !!

[makfai]

[quote user="Caussenarde"]I vote

Makfai:  funf comma neun

BaF:      funf comma sieben !!

[/quote]

I dont know what the points awarded were but I agree with the title of the post[:D]

[cooperlola]

I agree.  Why not spend the same number of hours e-mailing  MEPs/MPs/French Health Minister and anybody else you can think of?  Fight for whatever it is you believe in - not with one another but with those who perpetrated these injustices (whatever you believe they are) in the first place.  Just thank whomever you believe is responsible for the fact that you are not one of those lying in a hospital bed, wondering whether or not you'll be treated come January 6th.

[chessfou]

[quote]Why not spend the same number of hours e-mailing  MEPs/MPs/French Health Minister and anybody else you can think of? [/quote]

Because there is a curious difference (speaking in generalities) between N. Europeans and S. Europeans. The former have apparently limitless energy when it comes to debating (especially in committee) what to do, how and when to do it, such that by the time any agreement is reached no-one has any energy left actually to do anything. The latter can't be ar**d to waste all that time deciding what is to be done but 24 hours before an event is due to start all pitch in together to get things underway. Net result, in my experience, is that both N & S achieve about the same in the end ...

[cooperlola]

Jim Murphy seems to think the new rules are the end of it.

http://blogs.fco.gov.uk/blogs/jim_murphy/archive/2007/12/17/15478.aspx

Make sure he knows that this is just not the case!  Please respond on the blog guys and gals.