Case C‑81/13

United Kingdom of Great Britain and Northern Ireland

v

Council of the European Union

‛Actions for annulment — Coordination of social security systems — EEC-Turkey Association Agreement — Council decision on the position to be taken on behalf of the European Union within the Association Council — Choice of legal basis — Article 48 TFEU — Article 79(2)(b) TFEU — Article 217 TFEU’

Summary — Judgment of the Court (Grand Chamber), 18 December 2014

Acts of the institutions — Choice of legal basis — Criteria — Decision 2012/776 on the position to be taken by the European Union on the coordination of social security systems in the context of the EEC-Turkey Association Agreement — Adoption solely on the basis of Article 48 TFEU — Not permissible — Appropriate legal basis — Articles 48 TFEU and 217 TFEU — No effect of the omission on the validity of the decision

(Arts 48 TFEU, 79(2)(b) TFEU, 217 TFEU and 218(8) and (9) TFEU; Protocol No 21 annexed to the EU and FEU Treaties; EEC-Turkey Association Agreement; Council Regulations No 1408/71 and No 574/72; Council Decision 2012/776)

The choice of the legal basis for a European Union measure must rest on objective factors amenable to judicial review, which include in particular the aim and content of the measure. The legal basis which has been used for the adoption of other European Union measures which might, in certain cases, display similar characteristics is irrelevant in that regard, as the legal basis must be determined having regard to the measure’s own aim and content. On the other hand, the context of the measure in question may be relevant to the choice of its legal basis.

Decision 2012/776 on the position to be taken on behalf of the European Union within the Association Council set up by the Agreement establishing an association between the European Economic Community and Turkey, with regard to the adoption of provisions on the coordination of social security systems, could not legitimately be adopted solely on the basis of Article 48 TFEU, since it was adopted in the framework of an association agreement and is aimed at the adoption of measures coordinating social security systems. As a rule, it is only in the sphere of the internal policies and actions of the European Union or of the external actions relating to third countries which can be placed on the same footing as Member State of the European Union that Article 48 TFEU empowers the European Union to adopt measures in this area. The aim of the EEC-Turkey Association Agreement is not to provide for the fullest possible realisation of the free movement of goods, persons, services and capital between the contracting parties, so that the internal market established within the European Union is extended to Turkey, or even to bring about between those parties the free movement of persons, and it does not extend to Turkey the freedom of movement for workers established within the European Union. Moreover, it is apparent that the contracting parties to the EEC-Turkey Agreement did not intend to apply amongst themselves in their entirety Regulations No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community and No 574/72 fixing the procedure for implementing Regulation No 1408/71, and that Turkey cannot be equated with a Member State for the purposes of the application of those regulations.

Furthermore, Article 79(2)(b) TFEU cannot be the basis for the adoption of a measure such as Decision 2012/776, as, in view of its particular context, it pursues a purpose other than that of the common immigration policy.

It follows that the legal basis for Decision 2012/776 is incorrect inasmuch as Article 217 TFEU was omitted from that legal basis. However, the error in the citations of that decision is a purely formal defect which does not entail its annulment, since, in accordance with the first paragraph of Article 218(8) TFEU in conjunction with Article 218(9) TFEU, it is by a qualified majority and without the approval of the European Parliament that the Council should in any event have adopted Decision 2012/776. Moreover, the omission of Article 217 TFEU is irrelevant with regard to Protocol No 21.

(see paras 35, 36, 38, 46, 50, 57-59, 63, 64, 66, 67)

Case C‑81/13

United Kingdom of Great Britain and Northern Ireland

v

Council of the European Union

‛Actions for annulment — Coordination of social security systems — EEC-Turkey Association Agreement — Council decision on the position to be taken on behalf of the European Union within the Association Council — Choice of legal basis — Article 48 TFEU — Article 79(2)(b) TFEU — Article 217 TFEU’

Summary — Judgment of the Court (Grand Chamber), 18 December 2014

Acts of the institutions — Choice of legal basis — Criteria — Decision 2012/776 on the position to be taken by the European Union on the coordination of social security systems in the context of the EEC-Turkey Association Agreement — Adoption solely on the basis of Article 48 TFEU — Not permissible — Appropriate legal basis — Articles 48 TFEU and 217 TFEU — No effect of the omission on the validity of the decision

(Arts 48 TFEU, 79(2)(b) TFEU, 217 TFEU and 218(8) and (9) TFEU; Protocol No 21 annexed to the EU and FEU Treaties; EEC-Turkey Association Agreement; Council Regulations No 1408/71 and No 574/72; Council Decision 2012/776)

The choice of the legal basis for a European Union measure must rest on objective factors amenable to judicial review, which include in particular the aim and content of the measure. The legal basis which has been used for the adoption of other European Union measures which might, in certain cases, display similar characteristics is irrelevant in that regard, as the legal basis must be determined having regard to the measure’s own aim and content. On the other hand, the context of the measure in question may be relevant to the choice of its legal basis.

Decision 2012/776 on the position to be taken on behalf of the European Union within the Association Council set up by the Agreement establishing an association between the European Economic Community and Turkey, with regard to the adoption of provisions on the coordination of social security systems, could not legitimately be adopted solely on the basis of Article 48 TFEU, since it was adopted in the framework of an association agreement and is aimed at the adoption of measures coordinating social security systems. As a rule, it is only in the sphere of the internal policies and actions of the European Union or of the external actions relating to third countries which can be placed on the same footing as Member State of the European Union that Article 48 TFEU empowers the European Union to adopt measures in this area. The aim of the EEC-Turkey Association Agreement is not to provide for the fullest possible realisation of the free movement of goods, persons, services and capital between the contracting parties, so that the internal market established within the European Union is extended to Turkey, or even to bring about between those parties the free movement of persons, and it does not extend to Turkey the freedom of movement for workers established within the European Union. Moreover, it is apparent that the contracting parties to the EEC-Turkey Agreement did not intend to apply amongst themselves in their entirety Regulations No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community and No 574/72 fixing the procedure for implementing Regulation No 1408/71, and that Turkey cannot be equated with a Member State for the purposes of the application of those regulations.

Furthermore, Article 79(2)(b) TFEU cannot be the basis for the adoption of a measure such as Decision 2012/776, as, in view of its particular context, it pursues a purpose other than that of the common immigration policy.

It follows that the legal basis for Decision 2012/776 is incorrect inasmuch as Article 217 TFEU was omitted from that legal basis. However, the error in the citations of that decision is a purely formal defect which does not entail its annulment, since, in accordance with the first paragraph of Article 218(8) TFEU in conjunction with Article 218(9) TFEU, it is by a qualified majority and without the approval of the European Parliament that the Council should in any event have adopted Decision 2012/776. Moreover, the omission of Article 217 TFEU is irrelevant with regard to Protocol No 21.

(see paras 35, 36, 38, 46, 50, 57-59, 63, 64, 66, 67)