EU-Switzerland Agreement Opt-in Decision

Thursday 26th January 2012 Written Statements

[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 Switzerland, 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 third countries outside the EU cannot gain access to welfare benefits if they have never worked or paid contributions in the United Kingdom.

The present decision replaced a Council decision of 6 December 2010, which cited the, in our view, correct legal base of article 79(2)(b) of the Treaty on the Functioning of the European Union (TFEU) which allows the EU to adopt measures concerning the free movement rights (in this case social security rights) of third country nationals. As article 79(2)(b) lies within title V of part III of TFEU, the Government considered whether it wanted to opt into the measures and we concluded that we did not. The content of the revised decision was identical to that of December 2010, but the legal base was changed to article 48 TFEU, on social security coordination for migrant workers in the EU.

A similar situation arose earlier in 2011 with proposals to amend the social security provisions of the analogous EEA agreement. Then, as now, we took the view that these proposals would have the effect of extending social security co-ordination rights to non-active persons moving between the EU and a third country (in this case, Switzerland); and that the revised legal base was inappropriate as it related only to free movement within the EU.

In negotiations, the UK expressed serious concerns over the legal base, particularly since there was an existing decision with identical content, and over the procedures under which the decision was being adopted. Negotiations were curtailed, and no justification was given for the change in legal base. The Council decision on the EU-Switzerland agreement was adopted in Council on 16 December 2011. The Government submitted a written minute statement setting out our objections.

In parallel with these processes, we considered across Government the options open to us, including legal action. To maintain a consistent approach in line with the action taken concerning the EEA agreement, we 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. In addition, we confirmed our earlier decision not to opt into the measure.

On the same day that the decision was adopted in Council, the UK lodged an application under article 263 TFEU with the European Court of Justice to annul the Council decision and a further application under article 278 TFEU to suspend the decision.

By taking legal action against the Commission in both the EEA and EU-Switzerland agreements, I believe the Government are able to underline an important point of principle concerning the interpretation of TFEU and this action demonstrates how seriously the Government take our obligation to protect our rights under the treaty.