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Choosing legal bases to circumvent the UK's Title V opt-in



Staff, Students, Academics

Series: Institute for the Study of European Law (ISEL) seminars.

This talk will be about the experience of acting as Counsel for the United Kingdom in three related cases (C-431/11, C-656/11 and C-81/13) brought to challenge the validity of decisions adopted by the Council with a view to the amendment of the rules on the coordination of social security systems that apply under, respectively, the EEA Agreement, the EU/Swiss Free Movement Agreement and the Association Agreement with Turkey ("the Ankara Agreement"). Essentially, the dispute concerns the choice of the substantive legal basis for the decisions. Should it have been Article 48 TFEU (the legal basis for social security coordination measures within the internal market), as the Council decided; or Article 79 (2) (b) TFEU (the legal basis for defining the rights of third country nationals residing legally in a Member State), as the UK claimed, and under which it has an opt-in right?

The dispute may sound narrowly technical but the cases raise important legal and political issues. For instance, is it possible that appropriate language in an association agreement can give a third country to the legal status of a Union member for certain purposes? Do the internal market provisions of the TFEU have an external dimension that enables them to be used to facilitate freedom of movement between the Union and third countries? Does the adoption of EU legislation in a certain area cause the legal basis for external action to be switched to that of the internal measure? Can the choice of legal basis for a measure be justified on the ground that it circumvents a possible UK opt-in/out? Can the new Article 216 (1) TFEU serve as a general legal basis for external action by the Union?

In Cases C-431/11 and C-656/11 the Court of Justice has held that the Council's choice of Article 48 TFEU was correct. Case C-81/13 has been heard but the Opinion and the judgment are still awaited. It would be helpful if those attending the talk would bring along copies of AG Kokott's Opinion in Case C-431/11 and of the judgments in that case and Case C-656/11. I shall explain how I have attempted to distinguish Case C-81/11 from the two earlier cases.

About the speaker

Professor Sir Alan Dashwood was appointed Professor of Law in January 2012. Previously, he was Professor of European Law at the University of Cambridge from 1995 to 2009 and is now Professor Emeritus. He is a Fellow, now Emeritus, of Sidney Sussex College, of which he was formerly Vice-Master.

He is also a Barrister in Henderson Chambers, a Bencher of the Inner Temple and took Silk in 2010. He specialises in the law of the European Union, and appears regularly in proceedings before the Court of Justice of the EU. Before election to his Chair at Cambridge, he was a Director in the Legal Service of the Council of the EU.

He was the founding Editor of European Law Review and was one of the Joint Editors of Common Market Law Review until December 2008. He is a co-author of Wyatt and Dashwood's European Union Law and contributes frequently to legal periodicals.

At the invitation of the Foreign and Commonwealth Office, he led a team of Cambridge lawyers in drafting a model EU Constitution, as a contribution to the work of the Convention on the Future of Europe. He was appointed CBE in 2004 and KCMG in 2013.

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When and where

1.00pm - 3.00pmWednesday 18th June 2014

AG02 College Building City, University of London St John Street London EC1V 4PB United Kingdom

Contact Details

Dr Steven Truxal

Lecturer in Law

City, University of London
Northampton Square
United Kingdom
020 7040 3417

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