The European Commission has presented a package of four draft Council decisions amending the provisions for the co-ordination of social security systems with Albania, Montenegro, San Marino and Turkey. The content of the proposals relating to the first three countries is similar and is based on an earlier 2010 package of amendments to the agreements with the six countries of Algeria, Morocco, Tunisia, Croatia, the former Yugoslav Republic of Macedonia and Israel. As with the 2010 package, the proposals are based on article 79(2)(b) of the treaty on the functioning of the EU (TFEU), which enables the UK to decide whether to opt-in to such proposals. In line with our approach to the 2010 package, the Government have decided not to opt in to the proposals with Albania, Montenegro and San Marino.
The Government are committed to the free movement of workers within the European Union, and also to protecting the sustainability and affordability of our welfare systems. As such, the Government maintain the position that they do not wish to extend social security rights to third-country nationals.
The proposal to amend the association agreement with Turkey is based on article 48 TFEU, which governs social security co-ordination for migrant workers within the EU and which is subject to qualified majority voting. The UK has consistently contested proposals with an article 48 legal base in relation to third-countries agreements, maintaining that the correct legal base for such proposals is article 79(2)(b) TFEU which allows the EU to adopt measures concerning the free movement rights of third-country nationals.
The Turkey draft decision follows on from similar measures based on article 48 to amend social security provisions in the EU agreements with the European economic area (EEA) and Switzerland. Then, as now, we took the view that these proposals would have the effect of extending social security co-ordination rights to people moving between the EU and a third country and that the article 48 legal base was inappropriate as it related only to free movement within the EU.
The UK is currently seeking to annul in the Court of Justice of the EU the Council decisions based on article 48 in the EEA and Switzerland cases. A ruling is not expected until late in 2013. In the meantime, the Government intend to maintain a consistent approach to the proposals on Turkey, in line with the action taken in the EEA and Switzerland cases. We will continue to press for the correct title V legal base to be applied to the Turkey proposals, and should the draft Council decision on Turkey be adopted on the basis of a qualified majority before the Court has ruled on the EEA and Switzerland cases, we will take appropriate action including a further legal challenge if appropriate.
The Government believe that a consistent approach is necessary in order to underline an important point of principle concerning the interpretation of the treaty on the functioning of the European Union and to affirm the Government’s commitment to protect our rights under the treaty.