Thursday 27 February 2014

Non-EU benefit claimants and implications for the EU's relations with Switzerland

Professor Steve Peers, University of Essex

Even the most xenophobic of British tabloids is unlikely to greet today's judgment of the Court of Justice of the European Union (CJEU) with the headline, 'Scrounging Swiss'. Yet the judgment, concerning the correct legal base of an EU measure extending revised social security rules to Swiss citizens, raises interesting questions concerning the extension of social security rules to third states in general, and on the EU's relations with Switzerland in particular.


This the second in a series of three cases (to date) in which the UK has challenged the 'legal base' of Council Decisions which establish the EU's position as regards the extension of revised EU rules on social security coordination to particular third countries. The first case (C-431/11, UK v Council) concerned the European Economic Area (EEA), a treaty extending the EU's internal market to Norway, Iceland and Liechtenstein. The UK lost that challenge in September 2013. This case (C-656/11, UK v Council) concerns the extension of those social security rules to Switzerland, pursuant to the EU's free movement agreement with that country. A third case, still pending (C-81/13, UK v Council) concerns the extension of those rules to Turkey.

In all these cases, the Council has taken the view that the correct 'legal base' for its decision is Article 48 TFEU, which concerns the coordination of social security for employed and self-employed workers within the EU. Since the Treaty of Lisbon, this has provided for a qualified majority vote, although a Member State can pull an 'emergency brake' on proposed legislation if it believes that 'important aspects' or the 'financial balance' of its social security system will be affected by the proposal in question. The UK, on the other hand, has argued that the correct 'legal base' for these measures is Article 79 TFEU, which concerns the EU's common immigration policy.

This provision gives the UK (along with Ireland and Denmark) an opt-out. The UK intended to use this opt-out to reduce the cost of the provision of foreign benefits, although the total amount of the benefits paid out is surely not enormous. It may even be less than the cost of bringing this litigation.

It should be noted that the Council has taken a number of other decisions regarding social security rules for associated countries, based on Article 79 TFEU as the UK has advocated. In the Commission's view, set out in an interesting communication on social security and third countries, Article 48 should be used where the EU has a particularly close association with the country concerned, but otherwise Article 79 should be used.


In the previous judgment concerning the EEA, the Court ruled that Article 48 TFEU had to be used because: the EEA was a particularly close association between the EU and the countries concerned; the decision aimed to extend the whole EU internal market to those countries; the relevant provisions of the TFEU and EEA treaty were the same; the EEA has particular rules on the legal effect of EEA law; the decision also applied to EU citizens in the third countries concerned; the decision merely updated prior commitments; and it would be difficult to ensure free movement in the event of parallel regimes. Article 79 TFEU could not be used, because it was 'manifestly irreconcilable' with the context and objectives of the EEA.

Most of those points were unique to the EEA, and so the UK had hoped that the previous judgment could be confined to its facts. However, the CJEU extended this case law to cover the EU/Swiss decision as well. It reasons were that: Switzerland has a 'vast' number of treaties with the EU which aim to strengthen the EU/Swiss economic relationship, even though the Swiss had voted not to participate in the EU internal market, via means of the EEA; the EU/Swiss treaty has the same wording as Article 48 TFEU; and the decision simply extends the revised EU rules to the third country concerned. 

The CJEU also ruled that Article 48 TFEU can apply to third-country nationals where an association agreement (which was the basis for the approval for the 'package' of seven EU agreements with Switzerland, in 1999) has already extended EU social security rules to the country concerned, and the decision in question merely aims to update the references concerned. Finally, the CJEU rejected the UK's argument that Article 48 could not apply to the rules on social security for those Swiss citizens not exercising economic activities (who are outside the scope of Article 48), on the grounds that this aspect of the new decision was purely ancillary to the rules on employed and self-employed persons.

So Article 48 TFEU can apply even if the relationship is not as special as the EEA, does not extend the full internal market to the country concerned, and does not contain the particular rules on the legal effect of EEA law. The most recent judgment makes no reference to the complication of having parallel regimes either. Moreover, the UK's best argument - that third country nationals not exercising economic activities were beyond the scope of Article 48 TFEU - has now been shot down by the Court.

It is surely likely, by analogy with this judgment, that the UK will lose its challenge to the Council decision regarding social security for Turkish citizens. Moreover, the Coumcil's decisions relating to social security for other associated third countries, based on Article 79, might even be legally questionable. This is because the Court's judgment today could be understood to mean that the implementation of any specific aspects of the EU's association agreements involve the use of the relevant legal base relating to internal EU law - given that, as the CJEU has always held, all association agreements aim to extend aspects of the EU's internal law to the third country 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 government to renegotiate the free movement treaty with the EU within three years, to establish a possible quota on free movement. Of course, the judgment does not concern termination of the EU's treaties with Switzerland, but rather their implementation. But it implicitly rejects any argument that the Treaty provisions on association agreements (now Article 217 TFEU) must always be used for decisions relating to such agreements. The Advocate-General's opinion in the previous EEA social security case had argued that Article 217 had to be used, but the Court did not follow that view.

It is therefore arguable that the EU could decide to denounce one or all of the other treaties in the 1999 package based on the particular legal base for the treaty concerned - such as the transport legal base for the treaty on aviation, for instance. If this is correct, most or all of these decisions to denounce could be taken by a qualified majority vote, so this would strengthen the EU's negotiating position with Switzerland when it comes time to renegotiate the main treaty on free movement of persons. It cannot be forgotten that the EU and the Swiss agreed in 1999 that the seven agreements were a package - and that the denunciation of one treaty would mean the denunciation of all of them.

Barnard & Peers: chapter 24


  1. Dear colleague,

    Thank you for this interesting comment. However, I would beg to disagree with your (tentative, I know) argument that the judgment could mean that now entire agreements could be regarded as based on EU free movement provisions.

    The CJEU cases that you are discussing regard only updates to such agreements, not the agreements as a whole. With respect to the updates, in the case of the Swiss agreement, the update in question falls under the category where the Joint Committee has the competence to make changes to the agreement rather than requiring formal Treaty revision. To me, it is clear that in such cases the procedure on the EU side cannot be that of Art. 217 TFEU (unsurprisingly, that is not what the UK argued) but rather must be something more specific and probably also more simple. Conversely, I would argue that it can not be concluded that the legal basis for a partial change through Joint Committee means that the entire agreement is based on Art. 48 TFEU. After all, it is only with respects to parts of the agreement is Switzerland to be equated to an EU Member State (thus the CJEU).

    With respect to economically inactive persons, the Court’s statement on this not being the main or predominant purpose or component of the contested decision, but rather incidental, in my opinion it fits well with the general doctrine on how to choose a legal basis: if there is more than one aim and one of these is predominant and the other only ancillary, then the legal basis for the predominant aim must be chosen for the entire measure (see para. 47 of the judgment under discussion).

    Best regards,

    Christa Tobler (Universities of Basel and Leiden)

    1. Thanks for your comments, Christa. I agree with you that not all agreements could be regarded as based on a single legal base. They would have to be examined on a case-by-case basis. So the transport agreement could, for instance, be denounced by means of the transport legal base alone. The agreement on free movement of persons would indeed be more problematic, since of course it goes beyond the scope of social security.