15 Cooperation within the European Economic
Area
| Committee's assessment
| Legally important |
| Committee's decision | Cleared from scrutiny
|
| Document details | Draft Council Decision on the position to be adopted, in the EEA Joint Committee concerning an amendment to Protocol 31 to the EEA Agreement
|
| Legal base | Articles 46, 48 and 218(9) TFEU; QMV; EP to be informed
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| Department
Document numbers
| Work and Pensions
(34730), 6912/13, COM(13) 99
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Summary and Committee's conclusions
15.1 The Agreement on the European Economic Area ("the EEA
Agreement") establishes an association between EU Member
States and Iceland, Liechtenstein and Norway which is based on
the free movement of goods, persons, services and capital ("the
four freedoms"). It also provides for closer cooperation
in other policy fields outside the four freedoms. Protocol 31
to the Agreement sets out the relevant EU instruments which form
the basis for such cooperation. The Protocol can only be amended
by a decision of the EEA Joint Committee on which all parties
to the EEA Agreement are represented.
15.2 The purpose of the draft Council Decision is
to propose changes to Protocol 31 which would take effect if Iceland,
Liechtenstein and Norway (acting together within the Joint Committee)
also agree them. The changes would enable these three countries
to participate in actions funded from two EU budget lines for
the financial year 2013 (as they had previously in 2012) concerning
the free movement of workers, coordination of social security
systems, and measures for migrants (including third country national
migrants).
15.3 We considered the draft Decision at our meeting
on 20 March 2013. The then Minister for Employment (Mr Mark Hoban)
noted in his Explanatory Memorandum that the free movement of
workers and social security coordination were a core part of the
four freedoms and questioned whether there was a need to amend
Protocol 31which deals with other areas of cooperation. Turning
to the third area of cooperation, he reiterated the Government's
view that Article 48 TFEU (concerning the aggregation of social
security benefits for migrant workers) was an inappropriate legal
base for matters relating to third country nationals. Despite
the absence of a Title V (justice and home affairs) legal base,
he maintained that the UK's Title V opt-in applied "on the
basis of the binding JHA obligations contained in the proposal".[81]
15.4 We reminded the Government that we do not accept
its view that the UK's opt-in may apply in the absence of a cited
Title V legal base, and concluded:
"Even if we were to do so, we do not see why
a Title V legal base should be cited in this case. The draft Decision
does not, as the Minister's Explanatory Memorandum suggests, 'add'
cooperation on the free movement of workers, social security coordination,
and migrant third country workers to Protocol 31, or 'extend'
cooperation in these areas. Rather, it has the very limited purpose
of providing for Iceland, Liechtenstein and Norway to participate
in actions funded by specific, existing EU budget lines covering
these policy areas. We do not therefore agree with the Minister's
assessment that the draft Decision establishes 'binding JHA obligations'
which attract the opt-in."
15.5 We asked the Minister to explain:
· whether
the Government was minded to opt into the draft Decision;
· whether
the UK intended to oppose the adoption of the draft Decision if
it were not amended to include a Title V legal base; and
· what
further action, it any, the Government proposed to take to defend
its position that a Title V legal base should be cited.
15.6 Meanwhile, we held the draft Decision under
scrutiny. We contacted the Department for Work and Pensions in
January 2015 to remind them that the proposal remained under scrutiny
and that we awaited a response to the questions we had raised
nearly two years previously. In this chapter, we report the response
provided by the Minister for Employment (Esther McVey).
15.7 We are disappointed with the tone and substance
of the Minister's response. The questions we raised in March 2013
were clear and specific. The Minister offers no apology for the
delay in responding, but alludes to other related documents "which
have all cleared scrutiny". It is wholly unacceptable to
expect us to infer the Government's position on this draft Council
Decision from information provided in a different context on a
different set of documents. Even at this late stage, the Minister
tells us that the UK "objected to the legal base" but
still does not indicate whether or not the UK opted into the draft
Decision (we presume it did not), when it was agreed by the Council,
and whether the UK voted against its adoption.
15.8 We do not consider that the circumstances
in this case are entirely analogous to those in Case C-431/11,
given that the amendments to the EEA Agreement considered by the
Court concerned a substantive extension of the social security
rights of nationals of Iceland, Liechtenstein and Norway, whereas
the draft Council Decision has a more limited purpose, enabling
these countries to take part in actions funded by certain EU budget
lines without creating any new entitlements. We think that the
Minister is, however, right to conclude that the judgment in Case
C-431/11 makes it unlikely that measures based on Article 48 TFEU
amending Protocol 31 to the EEA Agreement will come within the
scope of the UK's Title V opt-in.
15.9 We trust that recent changes to her Department's
internal scrutiny processes will ensure that there are no further
scrutiny lapses. Meanwhile, we clear the draft Council Decision
from scrutiny.
Full details of
the documents: Draft
Council Decision on the position to be adopted, on behalf of the
European Union, in the EEA Joint Committee concerning an amendment
to Protocol 31 to the EEA Agreement: (34730), 6912/13, COM(13)
99.
Background
15.10 Council Decisions proposing amendments to the
EEA Agreement and its Protocols and Annexes are commonplace and,
in the vast majority of cases, uncontroversial. They seek to ensure
that cooperation within the wider European Economic Area keeps
pace with developments within the European Union. What distinguished
this draft Council Decision from most others was the Government's
assertion that it was subject to the UK's Title V opt-in and that,
in principle, should the Government decide not to opt in, the
UK would not be bound by the changes to the EEA Agreement.
The Minister's letter of 14 February 2015
15.11 The Minister for Employment (Esther McVey)
says that the information we requested in our Thirty-sixth report,
agreed on 20 March 2013, was dependent on the outcome of legal
proceedings brought by the UK to challenge the validity of a Council
Decision, also based on Article 48 TFEU, which amended an Annex
to the EEA Agreement to align arrangements for the coordination
of social security with those already applicable within the EU.
The Court's judgment in Case C-431/11 is summarised in our Twenty-ninth
Report agreed on 8 January 2014. The Minister refers us to the
joint letter of the Home and Justice Secretaries, dated 3 June
2014, for further details concerning the Government's policy on
the UK's Title V (justice and home affairs) opt-in.[82]
15.12 Turning to the draft Council Decision, the
Minister notes that the use of an Article 48 TFEU legal base was
material to the UK's legal challenge in Case C-431/11 which had
already been lodged with the Court of Justice. She continues:
"The UK and Ireland objected to the legal base,
but the draft Decision was nonetheless adopted in Council by QMV.
The UK was therefore bound pending the outcome of the legal action.
"In September 2013 the Court ruled that Article
48 was an appropriate legal base for amendments to Annex II to
the EEA Agreement covering social security provisions. It followed
therefore that Article 48 was appropriate for amendments to the
budget lines in Protocol 31."[83]
15.13 The Minister notes that Council Decisions concerning
"similar routine amendments" to Protocol 31 to the EEA
Agreement have all cleared scrutiny.[84]
She concludes:
"In light of the CJEU [Court of Justice] ruling
it is unlikely that measures adopted with an Article 48 legal
base amending Annex II and Protocol 31 of the EEA Agreement could
have any further impact on the UK's rights under Protocol 21 (the
JHA opt-in). As such, the question of opting in or amending the
legal base to include a Title V legal base where there is no JHA
content does not arise."
Previous Committee Reports
Thirty-sixth report HC 86-xxxvi (2012-13), chapter
4 (20 March 2013); also see our Twenty-ninth Report HC 83-xxvi
(2013-14), chapter 7, (8 January 2014) for details of the Court's
judgment in Case C-431/11.
81 See paras 15 and 16 of the Minister's Explanatory
Memorandum. Back
82
Letter of 3 June 2014 from the Home Secretary (Mrs Theresa May)
and the Lord Chancellor and Justice Secretary (Chris Grayling)
to the Chair of the European Scrutiny Committee. Back
83
In fact, the Council Decision at issue in Case C-431/11 concerned
amendments to Annex VI and Protocol 37 to the EEA Agreement. Back
84
The examples she gives concern the following documents: (33988),
10505/12; (35939), 8534/14; and (36013) 9792/14. Back
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