EN Official Journal of the European Union C 311/26

Action brought on 18 August 2011 — United Kingdom of Great Britain and Northern Ireland v Council of the European Union

(Case C-431/11)

2011/C 311/43

Language of the case: English

Parties

Applicant: United Kingdom of Great Britain and Northern Ireland (represented by: C. Murrell, Agent, T. de la Mare, Barrister)

Defendant: Council of the European Union

The applicant claims that the Court should:

— annul Council Decision of 6 June 2011 (1) on the position to be taken by the European Union in the European Economic Area (EEA) Joint Committee concerning an amendment to Annex VI (Social Security) and Protocol 37 to the EEA Agreement;

— limit the temporal effects of such order until the Council adopts on the basis of Article 79(2)(b) TFEU a new Decision on the position to be taken by the European Union in the European Economic Area (EEA) Joint Committee concerning an amendment to Annex VI (Social Security) and Protocol 37 to the EEA Agreement; and

— order the Council to pay the costs of the proceedings.

Pleas in law and main arguments

The United Kingdom seeks the annulment pursuant to Article 264 TFEU of Council Decision 2011/407/EU of 6 June 2011 on the position to be taken by the European Union in the EEA Joint Committee concerning an amendment to Annex VI (Social Security) and Protocol 37 to the EEA Agreement (‘the Decision’).

The United Kingdom seeks an order that:

(a) The Decision be annulled:

(b) Following the annulment of the Decision, that its provisions should remain effective until the Council adopts a lawful Decision on the basis of Article 79(2)(b) TFEU on the position to be taken by the European Union in the European Economic Area (EEA) Joint Committee concerning an amendment to Annex VI (Social Security) and Protocol 37 to the EEA Agreement; and

(c) The Council pay the costs of the proceedings.

The Decision, which was adopted on the substantive legal basis of Article 48 TFEU, determined the European Union's position to be adopted in the EEA Joint Committee negotiations as to the amendment of Annex VI (Social Security) and Protocol 37 to the EEA Agreement.

The United Kingdom contends that the Council was wrong to adopt the Decision using Article 48 TFEU as the substantive legal basis. Instead, the Council should have based any such Decision on Article 79(2)(b) TFEU which provides the appropriate basis upon which to adopt a common position to conclude international arrangements whose effect in the EU is to extend social security rights to third country nationals. Article 48 TFEU provides competence only to legislate for EU national workers and the self-employed. Article 79(2)(b) by its express terms provides powers to confer rights upon third country nationals residing legally within the EU.

Pursuant to Protocol 21 measures adopted pursuant to or under all Title V legal bases, including Article 79(2)(b) TFEU, apply to the United Kingdom only if it chooses to opt in to such measures.

The annulment of the Decision is accordingly sought on the grounds that it was adopted on the wrong legal basis, the consequence of which is that the United Kingdom has been deprived of its rights under Protocol 21.

(1) Council Decision 2011/407/EU of 6 June 2011 on the position to be taken by the European Union within the EEA Joint Committee concerning an amendment to Annex VI (Social Security) and Protocol 37 to the EEA Agreement

OJ L 182, p. 12