9 Croatia's accession to the EU/Switzerland
Agreement on the Free Movement of Persons
| (a)
(35455)
14367/13
COM(13) 674
(b)
(35460)
14368/13
COM(13) 673
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Draft Council Decision on the signing of a Protocol to the Agreement between the European Community and its Member States, and the Swiss Confederation, on the free movement of persons, to take account of the accession of the Republic of Croatia to the European Union
Draft Council Decision on the conclusion of a Protocol to the Agreement between the European Community and its Member States, and the Swiss Confederation, on the free movement of persons, to take account of the accession of the Republic of Croatia to the European Union
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| Legal base | (a) Articles 217, 218(5) and 218(8) TFEU; unanimity
(b) Articles 217, 218(6)(a) and 218(8) TFEU; unanimity; EP consent
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| Documents originated | (Both) 1 October 2013
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| Deposited in Parliament | (a) 3 October 2013
(b) 4 October 2013
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| Department | Home Office
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| Basis of consideration | EM of 18 November 2013
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| Previous Committee Report | None
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| Discussion in Council | Agreement expected in December
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| Committee's assessment | Legally important
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| Committee's decision | Not cleared; further information requested
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Background
9.1 In June 1999, the (then) European Community and
its Member States signed an Agreement with Switzerland on the
free movement of persons to enable EU and Swiss nationals to live
and work in each others' territories (the Agreement). The Agreement
entered into force on 1 June 2002. Croatia acceded to the European
Union on 1 July 2013. Under the terms of its Accession Treaty,
Croatia undertakes to accede to agreements concluded by the EU
and Member States with third countries. In September 2012, the
Council authorised the Commission to open negotiations with Switzerland
with a view to concluding a Protocol providing for Croatia's accession
to the Agreement. The Protocol resulting from these negotiations
is annexed to the draft Council Decisions deposited for scrutiny.
The draft Council Decisions
9.2 Document (a) authorises signature of the Protocol
and document (b) its conclusion on behalf of the EU and its Member
States. Both draft Decisions cite Articles 217 and 218 of the
Treaty on the Functioning of the European Union (TFEU) as their
substantive legal bases. Article 217 TFEU empowers the EU to
conclude association agreements with third countries "involving
reciprocal rights and obligations, common action and special procedure."
Article 218 TFEU provides for decisions on the signing and conclusion
of such agreements (including, in this case, any Protocol to such
agreements) to be agreed by the Council by unanimity. The European
Parliament is also required to give its consent.
9.3 Once the Protocol has been approved, Croatia
will become a Contracting Party to the Agreement, subject to transitional
provisions which are set out in the body of the Protocol.
The Government's view
9.4 The Minister for Immigration (Mr Mark Harper)
describes the Protocol as a "technical measure resulting
from Croatian accession, which has no impact on the UK",[17]
adding:
"In practice, the proposal has the effect of
updating the existing Association Agreement to include Croatia
to reflect its accession to the EU. The amendment does not seek
to amend the terms of the agreement beyond this, and will affect
movement between Croatia and Switzerland. The free movement provisions
for both Swiss and Croatian nationals in the UK will not
be affected by this amendment."[18]
9.5 The Minister does, however, dispute the legal
bases proposed by the Commission for both draft Decisions:
"The extension of the EU-Switzerland Agreement
to Croatia will allow nationals of a third country, Switzerland,
to reside in the territory of a Member State, Croatia. Accordingly,
it is our view that the EU will be exercising competence under
Article 79(2)(b) TFEU.[19]
For that reason, we consider the proposal to engage the UK's
opt-in under Protocol 21 to the Treaties. We will proceed to
take an opt-in decision on this basis. We will seek the citation
of an Article 79(2)(b) TFEU legal base but assess that it is unlikely
we will be successful in this regard due to the views of the Commission
and other Member States."[20]
9.6 The Minister alludes to an earlier draft Council
Decision amending the social security provisions of the same Agreement
which we last considered in February 2012 and which remains under
scrutiny.[21] In that
case, the Commission proposed Article 48 TFEU (on social security
coordination) as the substantive legal base for the draft Decision.
As the amendments to the Agreement would have the effect of extending
social security rights for Swiss migrants to the UK, the Government
considered that Article 79(2)(b) TFEU should be cited instead,
as this provision concerns the definition of the rights of legally
resident third country nationals. Article 79 TFEU (unlike Article
48) is subject to the UK's Title V (justice and home affairs)
opt-in. Despite the UK's objections, the draft Council Decision
was adopted on an Article 48 TFEU legal base and the Government
initiated proceedings to challenge its validity in the Court of
Justice. Pending the Court's ruling on validity, and on the application
of the UK's opt-in to EU measures which do not cite a Title V
legal base, the draft Decision remains under scrutiny.
9.7 The Minister suggests that "similar principles
are at stake" with regard to the draft Council Decisions
providing for Croatia's accession to the Agreement. He continues:
"If we are unsuccessful in attaining the citation
of an Article 79(2)(b) legal base in respect of the current proposal
and if the Government were to decide not to opt in we would need
to consider whether to launch another ECJ challenge.
"The Government will now consider whether to
opt in to the proposal and must communicate this decision to the
EU Council Secretariat by early December in order to allow the
measures to apply from 1 January 2014."[22]
9.8 In the section of his Explanatory Memorandum
dealing with the financial implications of the draft Decisions,
the Minister states:
"The proposed amendment does not present any
financial implications, as there will be no legal challenge to
the proposal from the UK and the right of free movement will not
be extended to persons to whom it does not already apply."[23]
9.9 Turning to the timetable for reaching agreement
in Council, he adds:
"The agreement puts in place measures starting
from 1 January 2014. Therefore the EU must agree its position
in time for the EEAS and Switzerland to arrange signature before
the end of the year. The last Council that could agree the point
takes place on 17 December. Therefore approval is sought before
the preparatory Coreper scheduled for 12 December."[24]
Conclusion
9.10 We note that the Government accepts that
there is little prospect of securing a change to the legal base
for the draft Council Decisions, but nevertheless intends to "take
an opt-in decision" on the strength of its conviction that
Article 79(2)(b) TFEU is the correct legal base. We do not accept
that the UK's Title V (justice and home affairs) opt-in applies
in the absence of a Title V legal base. Moreover, it is clear
from the timetable set out in the Minister's Explanatory Memorandum
that other Member States have no intention of applying the procedural
requirements set out in the UK's Title V opt-in Protocol (including
the three-month opt-in period) before reaching a decision.
9.11 We note that a unanimous decision of the
Council is required to adopt the draft Decisions. The Government
therefore has the power to veto the draft Decisions if it is unable
to persuade other Member States to amend the legal base, or to
abstain and challenge their validity post-adoption in the Court
of Justice. We ask the Minister to clarify which course of action
the Government intends to take and to explain the apparent contradiction
in his Explanatory Memorandum which states (in paragraph 18) that
the Government will "need to consider whether to launch another
ECJ challenge" and (in paragraph 23) that "there will
be no legal challenge to the proposal from the UK."
9.12 We note also that two earlier Protocols extending
the EU/Switzerland Agreement to central and eastern European countries
acceding to the EU in 2004 and 2007 were based on Treaty provisions
equivalent to those cited in the current draft Decisions.[25]
We ask the Minister to explain why he considers that a different
legal base is justified for the latest Protocol on Croatian accession.
Pending further information from the Minister, the draft Decisions
remain under scrutiny.
17 See para 20 of the Minister's Explanatory Memorandum.
Back
18
See para 14 of the Minister's Explanatory Memorandum. Back
19
Article 79(2)(b) TFEU provides for the adoption of measures on
"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." Back
20
See para 9(i) of the Minister's Explanatory Memorandum. Back
21
See Council document 16231/11 (33298); HC 428-xliv (2010-12),
chapter 7 (14 December 2011) and HC 428-xlix (2010-12), chapter
6 (1 February 2012). Back
22
See paras 18 and 19 of the Minister's Explanatory Memorandum. Back
23
See para 23 of the Minister's Explanatory Memorandum. Back
24
See para 28 of the Minister's Explanatory Memorandum. Back
25
The relevant provisions are Articles 300(2) and (3) and 310 of
the EC Treaty. Back
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