20.4.2013   

EN

Official Journal of the European Union

C 114/26

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annul Council Decision 2012/776/EU 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 schemes (1);

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order the Council to pay the costs of the proceedings.

1.

By an action brought under Article 263 TFEU, the United Kingdom of Great Britain and Northern Ireland is seeking the annulment, pursuant to Article 264 TFEU, of Council Decision 2012/776/EU of 6 December 2012 on the position to be taken on behalf of the 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 schemes.

2.

The United Kingdom respectfully requests the Court:

3.

Article 48 TFEU is the substantive legal basis specified in the Decision.

4.

The proposed Association Council Decision annexed to the Council Decision would repeal and replace Decision No. 3/80 of the Association Council on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families.

5.

The United Kingdom contends that Article 48 TFEU cannot serve as the substantive legal basis of a measure intended to have such consequences. It is a provision designed to facilitate freedom of movement for nationals of Member States within the internal market. The correct legal basis is Article 79 (2) (b) TFEU. This confers competence for the adoption of measures concerning ‘the definition of the rights of third country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States’. The Council Decision is precisely such a measure.

6.

Article 79 (2) (b) TFEU is found in Title V of Part Three of the TFEU. Pursuant to Protocol 21 to the Treaties, measures adopted under Title V do not apply to the United Kingdom (or Ireland) unless it signals its willingness to ‘opt into’ them. By its erroneous choice of Article 48 TFEU, instead of Article 79 (2) (b) TFEU, as the substantive legal basis of the Decision, the Council refused to recognise the right of the United Kingdom not to take part in the adoption of the Decision and not to be bound by it.

7.

The annulment of Council Decision 2012/776/EU is, therefore, sought on the ground that it was adopted on the wrong legal basis, with the consequence that the rights of the United Kingdom under Protocol 21 were not recognised.

8.

In support of its contention the United Kingdom relies upon the express provisions of Article 48 and Article 79 (2) (b) TFEU, interpreted in their Treaty context and in the light of case law. It further relies upon the fact that Council Decision 2012/776/EU is almost identical to nine Council Decisions which have been adopted under other Association Agreements on the basis of Article 79 (2) (b).