The Minister of State, Department for Work and Pensions (Chris Grayling)
The Government are committed to the free movement of workers within the European economic area, and also to protecting the sustainability and affordability of our welfare systems. As part of that commitment we want to ensure that non-active migrants from outside the EU cannot gain access to welfare if they have never worked or paid contributions in the United Kingdom.
In considering proposals to amend the social security provisions of the EEA agreement, we took the view that the proposals would have the effect of extending social security co-ordination to non-active persons moving between the EU and EEA. Furthermore, the proposal was based on treaty powers for the co-ordination of social security schemes in relation to the free movement of workers within the EU (article 48 of the treaty on the functioning of the European Union), whereas the provisions related to free movement between the EU and the EEA states.
In focusing on the nature and content of the proposal rather than the cited legal base, the Government came to the conclusion that the appropriate legal base was article 79(2)(b) TFEU, which allows the EU to adopt measures concerning the free movement rights (including social security rights) of third-country nationals. Article 79(2)(b) lies within title V of part III of the TFEU, and so the Government considered whether they wanted to opt in to the measures; and we concluded that we did not want to opt in.
In negotiations we continued to argue for a change to a title V legal base, and that the UK’s position be reflected in the text, but were unsuccessful. The decision on the position to be adopted by the EU was put to the Employment, Social Policy, Health and Consumer Affairs Council in June 2011. The Government expressed our serious concerns over the legal base for the proposal, and noted our right to take further action. The Council decision was none the less adopted, and a further decision giving effect to the measures was adopted in the EEA Joint Committee on 1 July 2011.
In parallel with these processes, we considered across Government the options, including legal action, open to us and we have decided to take direct action in the European Court on the basis that the article 48 legal base is incorrect and that the Council decision is therefore invalid. That action was initiated on 16 August by submitting an application on behalf of the UK to the Court of Justice of the European Union.
I believe this action demonstrates how seriously the Government take our obligation to protect our rights under the treaty on the functioning of the European Union.