United Kingdom of Great Britain and Northern Ireland v Council of the European Union.
Date: 2014-12-18
35. According to settled case-law, 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 (judgments in Commission v Council , C‑338/01, EU:C:2004:253, paragraph 54 and case-law cited, and Parliament v Council , C‑130/10, EU:C:2012:472, paragraph 42).
36. 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 for a measure must be determined having regard to the measure’s own aim and content (see, to that effect, judgments in United Kingdom v Council , EU:C:2013:589, paragraph 67 and case-law cited, and United Kingdom v Council , EU:C:2014:97, paragraph 48). It is therefore necessary to reject from the outset the argument that the United Kingdom derives from the fact that Article 79(2)(b) TFEU served as the legal basis for Regulation No 1231/2010 and other decisions similar to the contested decision which were adopted in the context of association agreements with other third countries.
37. Similarly, Protocol No 21 is not capable of having any effect whatsoever on the question of the correct legal basis for the adoption of the contested decision (see, to that effect, judgments in Commission v Council , C‑137/12, EU:C:2013:675, paragraphs 73 and 74, and United Kingdom v Council , EU:C:2014:97, paragraph 49).
38. On the other hand, the context of the measure in question may be relevant to the choice of its legal basis. Thus, where the measure seeks to amend the rules adopted in the context of an existing agreement, it is necessary also to take account of that context and, in particular, of the objective and content of the agreement (see, to that effect, judgments in United Kingdom v Council , EU:C:2013:589, paragraph 48, and United Kingdom v Council , EU:C:2014:97, paragraph 50).
49. So far as concerns freedom of movement for persons between Turkey and the European Union, as the Court has already held in paragraph 53 of the judgment in Demirkan  (C‑221/11, EU:C:2013:583), that no such general principle is established by the agreement and the Additional Protocol.
51. First, in providing that guidance should be drawn from Articles 48 to 50 of the EEC Treaty for the purpose of progressively securing freedom of movement for workers, Article 12 of the EEC-Turkey Agreement does not oblige the contracting parties to apply as such the EU rules on freedom of movement for workers (see, by analogy, judgment in Demirkan , EU:C:2013:583, paragraph 45), although Articles 48 to 50 of the EEC Treaty must none the less be extended, so far as possible, to Turkish workers who enjoy the rights conferred on them in the context of that agreement (see, by analogy, judgments in Bozkurt , C‑434/93, EU:C:1995:168, paragraph 20; Ayaz , C‑275/02, EU:C:2004:570, paragraph 44, and Dülger , C‑451/11, EU:C:2012:504, paragraph 48).
52. Second, as the Advocate General observed in point 79 of her Opinion, the progressive establishment of freedom of movement for workers provided for in Article 12 of the EEC-Turkey Agreement has not been completed. In that regard, the Court has repeatedly held that, unlike workers from the European Union, Turkish nationals are not currently entitled to freedom of movement within the European Union; that agreement guarantees the enjoyment of certain rights only within the territory of the host Member State (see, to that effect, judgments in Derin , C‑325/05, EU:C:2007:442, paragraph 66, and Demirkan , EU:C:2013:583, paragraph 53).
55. Moreover, Decision No 3/80, which was adopted in accordance with Article 39 of the Additional Protocol, refers, as the Court has already held in paragraphs 29 and 30 of the judgment in Taflan-Met and Others  (C‑277/94, EU:C:1996:315), only to certain provisions of Regulation No 1408/71 and Regulation No 574/72.
57. Against this background, it is apparent from the findings made in paragraphs 48 to 52 of this judgment, on the one hand, that the aim of the EEC-Turkey Agreement, unlike what was found by the Court in paragraph 50 of the judgment in United Kingdom v Council  (EU:C:2013:589) in relation to the EEA 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, unlike what was found in paragraph 55 of the judgment in United Kingdom v Council  (EU:C:2014:97) regarding the EC-Switzerland Agreement on the Free Movement of Persons, to bring about between those parties the free movement of persons and, on the other hand, that the freedom of movement for workers provided for by the EEC-Turkey Agreement has not been fully realised.
58. Moreover, it is apparent from the findings made in paragraphs 53 to 55 of this judgment that, unlike what was found in paragraph 56 of the judgment in United Kingdom v Council  (EU:C:2013:589) regarding the EEA Agreement, Regulation No 1408/71 was not incorporated into the EEC-Turkey Agreement or its Additional Protocol so as to extend to Turkey the rules on the coordination of social security systems contained in it. Similarly, contrary to what was found in paragraphs 57 and 58 of the judgment in United Kingdom v Council  (EU:C:2014:97) concerning the EC-Switzerland Agreement on the Free Movement of Persons, it is apparent that the contracting parties to the EEC-Turkey Agreement did not intend to apply amongst themselves Regulations Nos 1408/71 and 574/72 in their entirety and that Turkey cannot be equated with a Member State for the purposes of the application of those regulations.
61. That general power does not allow the European Union, in the light of the principle of conferral enshrined in Article 5(2) TEU, to adopt, in the framework of an association agreement, measures exceeding the limits of the powers that the Member States have conferred on it in the Treaties to attain the objectives set out therein (see, to that effect, judgment in Commission v Council , C‑370/07, EU:C:2009:590, paragraph 46). By contrast, Article 217 TFEU necessarily empowers the European Union to guarantee commitments towards third countries in all the fields covered by the FEU Treaty (see, to that effect, judgment in Demirel , 12/86, EU:C:1987:400, paragraph 9).
65. As regards the consequences of that omission, it must be held that the omission has no effect on the content of the contested decision or the procedure by which it was adopted.
66. As the Advocate General observed in points 97 and 123 of her Opinion, since the contested decision does not relate to the conclusion of an association agreement or is not aimed at supplementing or amending the institutional framework of such an agreement, but is aimed solely at ensuring its implementation, it is, in accordance with the combined measures of the first paragraph of Article 218(8) TFEU and Article 218(9) TFEU, by a qualified majority and without the approval of the European Parliament, that the Council should have, in any event, adopted the contested decision. Moreover, the omission of Article 217 TFEU in the legal basis for the contested decision is irrelevant with regard to Protocol No 21.
67. Accordingly, the error in the citations of the contested decision is a purely formal defect (see, inter alia, judgment in Swedish Match , C‑210/03, EU:C:2004:802, paragraph 44 and case-law cited) which does not entail its annulment.