United Kingdom of Great Britain and Northern Ireland v Council of the European Union.
Date: 2014-02-27
47. 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. If examination of a European Union measure reveals that it pursues a twofold purpose or that it has a twofold component and if one of these is identifiable as the main or predominant purpose or component whereas the other is merely incidental, the measure must be founded on a single legal basis, namely that required by the main or predominant purpose or component (Case C-338/01 Commission  v Council  [2004] ECR I‑4829, paragraphs 54 and 55 and the case-law cited, and Case C-130/10 Parliament  v Council [2012] ECR, paragraphs 42 and 43).
48. 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 its own aim and content (see, to this effect, United Kingdom  v Council , paragraph 67 and the case-law cited). It is therefore necessary to reject from the outset the argument put forward by the United Kingdom that Article 79(2)(b) TFEU has already been the legal basis for measures adopted in the field of social security that apply to third-country nationals.
50. 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 contained in 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 this effect, United Kingdom  v Council , paragraph 48).
51. In this instance, since the contested decision was intended to settle the position to be taken by the European Union in the Joint Committee established by the EC-Switzerland Agreement on the Free Movement of Persons as regards the amendment of Annex II on the coordination of social security schemes, it is appropriate to examine, first, the context of the contested decision and, in particular, that agreement’s objective and content as far as concerns social security.
52. As the Court noted in Case C-351/08 Grimme  [2009] ECR I‑10777, paragraphs 26 and 27, the EC-Switzerland Agreement on the Free Movement of Persons is one of a series of seven sectoral agreements between the same contracting parties, which were signed on 21 June 1999. They were signed after the Swiss Confederation’s rejection of the EEA Agreement on 6 December 1992.
53. Although the Swiss Confederation did not opt to participate in the EEA and in the European Union’s internal market, it is nevertheless linked to the European Union by numerous bilateral agreements covering vast fields and prescribing specific rights and obligations, analogous, in some respects, to those laid down by the FEU Treaty. The objective of these agreements, including the EC-Switzerland Agreement on the Free Movement of Persons, is to strengthen the economic ties between the European Union and the Swiss Confederation (Case C‑506/10 Graf and Engel  [2011] ECR I‑9345, paragraph 33).
58. In the light of those provisions of the EC-Switzerland Agreement on the Free Movement of Persons, the Court has already held, in Case C-247/09 Xhymshiti [2010] ECR I‑11845, paragraph 31, that for the purposes of the application of those regulations the Swiss Confederation is to be equated with a Member State of the European Union.
63. It follows that the main aim of the contested decision is, following the entry into force of the new European Union legislation concerning coordination of social security systems, to update also the legislation which has been extended to the Swiss Confederation by the EC-Switzerland Agreement on the Free Movement of Persons and thereby to retain the extension of social rights to citizens of the States concerned as already intended and given effect to by that agreement since 2002 (see, by analogy, United Kingdom  v Council , paragraph 57).
64. It is apparent from the foregoing considerations that, in the light of the context of the contested decision and its content and aim, it could properly be adopted on the basis of Article 48 TFEU.
66. Nor is that finding called into question by the United Kingdom’s argument that Article 2(1) of Regulation No 883/2004 extended the scope of that regulation to all economically inactive persons, and therefore also to those who did not yet enjoy the rights granted by Regulation No 1408/71. Suffice it to state that the extension of the rules on the coordination of social security systems to Swiss nationals residing in the European Union and falling within that category of economically inactive persons which was not yet covered by Regulation No 1408/71 cannot be regarded as constituting the main or predominant purpose or component of the contested decision, but must, on the co ntrary, be regarded as incidental to the updating of the body of legislation included in Annex II on the coordination of social security schemes.