Non-Eu Produce Goodness Claimants Too Implications For The Eu's Relations Amongst Switzerland

Professor Steve Peers, University of Essex

Even the almost xenophobic of British tabloids is unlikely to greet today's judgment of the Court of Justice of the European Union (CJEU) amongst the headline, 'Scrounging Swiss'. Yet the judgment, concerning the right legal base of operations of an European Union mensurate extending revised social safety rules to Swiss citizens, raises interesting questions concerning the extension of social safety rules to tertiary states inward general, together with on the EU's relations amongst Switzerland inward particular.

Background

This the minute inward a serial of 3 cases (to date) inward which the United Kingdom of Great Britain together with Northern Ireland has challenged the 'legal base' of Council Decisions which constitute the EU's seat equally regards the extension of revised European Union rules on social safety coordination to item tertiary countries. The outset example (C-431/11, UK v Council) concerned the European Economic Area (EEA), a treaty extending the EU's internal marketplace to Norway, Republic of Iceland together with Liechtenstein. The United Kingdom of Great Britain together with Northern Ireland lost that challenge inward September 2013. This example (C-656/11, UK v Council) concerns the extension of those social safety rules to Switzerland, pursuant to the EU's gratis displace understanding amongst that country. Influenza A virus subtype H5N1 tertiary case, yet pending (C-81/13, UK v Council) concerns the extension of those rules to Turkey.

In all these cases, the Council has taken the consider that the right 'legal base' for its determination is Article 48 TFEU, which concerns the coordination of social safety for employed together with self-employed workers inside the EU. Since the Treaty of Lisbon, this has provided for a qualified bulk vote, although a Member State tin delineate an 'emergency brake' on proposed legislation if it believes that 'important aspects' or the 'financial balance' of its social safety arrangement volition hold out affected past times the proposal inward question. The UK, on the other hand, has argued that the right 'legal base' for these measures is Article 79 TFEU, which concerns the EU's mutual immigration policy.

This provision gives the United Kingdom of Great Britain together with Northern Ireland (along amongst Republic of Ireland together with Denmark) an opt-out. The United Kingdom of Great Britain together with Northern Ireland intended to purpose this opt-out to bring down the toll of the provision of unusual benefits, although the total total of the benefits paid out is sure enough non enormous. It may fifty-fifty hold out less than the toll of bringing this litigation.

It should hold out noted that the Council has taken a publish of other decisions regarding social safety rules for associated countries, based on Article 79 TFEU equally the United Kingdom of Great Britain together with Northern Ireland has advocated. In the Commission's view, start out inward an interesting communication on social safety together with tertiary countries, Article 48 should hold out used where the European Union has a especially closed association amongst the province concerned, but otherwise Article 79 should hold out used.

Judgment

In the previous judgment concerning the EEA, the Court ruled that Article 48 TFEU had to hold out used because: the EEA was a especially closed association betwixt the European Union together with the countries concerned; the determination aimed to extend the whole European Union internal marketplace to those countries; the relevant provisions of the TFEU together with EEA treaty were the same; the EEA has item rules on the legal outcome of EEA law; the determination also applied to European Union citizens inward the tertiary countries concerned; the determination exactly updated prior commitments; together with it would hold out hard to ensure gratis displace inward the lawsuit of parallel regimes. Article 79 TFEU could non hold out used, because it was 'manifestly irreconcilable' amongst the context together with objectives of the EEA.

Most of those points were unique to the EEA, together with so the United Kingdom of Great Britain together with Northern Ireland had hoped that the previous judgment could hold out confined to its facts. However, the CJEU extended this example constabulary to comprehend the EU/Swiss determination equally well. It reasons were that: Switzerland has a 'vast' publish of treaties amongst the European Union which aim to strengthen the EU/Swiss economical relationship, fifty-fifty though the Swiss had voted non to participate inward the European Union internal market, via way of the EEA; the EU/Swiss treaty has the same wording equally Article 48 TFEU; together with the determination simply extends the revised European Union rules to the tertiary province concerned. 

The CJEU also ruled that Article 48 TFEU tin apply to third-country nationals where an association understanding (which was the ground for the approving for the 'package' of 7 European Union agreements amongst Switzerland, inward 1999) has already extended European Union social safety rules to the province concerned, together with the determination inward query exactly aims to update the references concerned. Finally, the CJEU rejected the UK's declaration that Article 48 could non apply to the rules on social safety for those Swiss citizens non exercising economical activities (who are exterior the compass of Article 48), on the grounds that this appear of the novel determination was purely ancillary to the rules on employed together with self-employed persons.

So Article 48 TFEU tin apply fifty-fifty if the human relationship is non equally special equally the EEA, does non extend the total internal marketplace to the province concerned, together with does non incorporate the item rules on the legal outcome of EEA law. The almost recent judgment makes no reference to the complication of having parallel regimes either. Moreover, the UK's best declaration - that tertiary province nationals non exercising economical activities were beyond the compass of Article 48 TFEU - has at in ane lawsuit been shot downwards past times the Court.

It is sure enough likely, past times analogy amongst this judgment, that the United Kingdom of Great Britain together with Northern Ireland volition lose its challenge to the Council determination regarding social safety for Turkish citizens. Moreover, the Coumcil's decisions relating to social safety for other associated tertiary countries, based on Article 79, powerfulness fifty-fifty hold out legally questionable. This is because the Court's judgment today could hold out understood to hateful that the implementation of whatsoever specific aspects of the EU's association agreements involve the purpose of the relevant legal base of operations relating to internal EU constabulary - given that, equally the CJEU has e'er held, all association agreements aim to extend aspects of the EU's internal constabulary to the tertiary province concerned (Case 12/86 Demirel).

Broader implications

The CJEU makes no reference to the recent Swiss referendum, which established a legal requirement for the Swiss authorities to renegotiate the gratis displace treaty amongst the European Union inside 3 years, to constitute a possible quota on gratis movement. Of course, the judgment does non trouble organisation termination of the EU's treaties amongst Switzerland, but rather their implementation. But it implicitly rejects whatsoever declaration that the Treaty provisions on association agreements (now Article 217 TFEU) must always hold out used for decisions relating to such agreements. The Advocate-General's persuasion inward the previous EEA social safety example had argued that Article 217 had to hold out used, but the Court did non follow that view.

It is hence arguable that the European Union could create upwardly one's heed to denounce ane or all of the other treaties inward the 1999 bundle based on the item legal base of operations for the treaty concerned - such equally the carry legal base of operations for the treaty on aviation, for instance. If this is correct, almost or all of these decisions to denounce could hold out taken past times a qualified bulk vote, so this would strengthen the EU's negotiating seat amongst Switzerland when it comes fourth dimension to renegotiate the primary treaty on gratis displace of persons. It cannot hold out forgotten that the European Union together with the Swiss agreed inward 1999 that the 7 agreements were a bundle - together with that the denunciation of ane treaty would hateful the denunciation of all of them.

Barnard & Peers: chapter 24

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