(Interim relief – Council decision – Application for suspension of operation –Application for interim measures – Decision 2011/863

ORDER OF THE PRESIDENT OF THE COURT

18April 2012(*)

(Interim relief – Council decision – Application for suspension of operation –Application for interim measures – Decision 2011/863/EU – Urgency)

In Case C‑656/11R,

APPLICATION for suspension of operation and for interim measures pursuant to Articles 278TFEU and 279TFEU, brought on 16December 2011,

United Kingdom of Great Britain and Northern Ireland, represented by C.Murrell, acting as Agent, and by A. Dashwood, QC,

applicant,

v

Council of the European Union, represented by G.Marhic and M.Veiga, acting as Agents,

defendant,

supported by

European Commission, represented by V. Kreuschitz and S. Pardo Quintillán, acting as Agents,

intervener,

THE PRESIDENT OF THE COURT,

after hearing Advocate General J.Kokott,

makes the following

Order

1By its application, the United Kingdom of Great Britain and Northern Ireland requests the Court to order suspension of the operation of Council Decision 2011/863/EU of 16December 2011 on the position to be taken by the European Union in the Joint Committee established under the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons as regards the replacement of Annex II to that Agreement on the coordination of social security schemes (OJ 2011 L341, p.1) (‘the contested decision’) and to grant interim measures to similar effect.

2This request has been submitted in the context of an action brought by the United Kingdom on 16December 2011 seeking annulment of the contested decision.

Legal context

The EC-Switzerland Agreement on the free movement of persons

3The Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, signed on 21June 1999 (OJ 2002 L114, p.6) (‘the Agreement’) entered into force on 1June 2002 with the adoption of Decision 2002/309/EC, Euratom of the Council and of the Commission as regards the Agreement on Scientific and Technological Cooperation of 4April 2002 on the conclusion of seven Agreements with the Swiss Confederation (OJ 2002 L114, p.1).

4Article 8 of the Agreement, entitled ‘Coordination of social security systems’, provides as follows:

‘The Contracting Parties shall make provision, in accordance with Annex II, for the coordination of social security systems with the aim in particular of:

(a)securing equality of treatment;

(b)determining the legislation applicable;

(c)aggregation, for the purpose of acquiring and retaining the right to benefits, and of calculating such benefits, [of] all periods taken into consideration by the national legislation of the countries concerned;

(d)paying benefits to persons residing in the territory of the Contracting Parties;

(e)fostering mutual administrative assistance and cooperation between authorities and institutions’.

5Article 14(1) of the Agreement, entitled ‘Joint Committee’, provides:

‘A Joint Committee composed of representatives of the Contracting Parties is hereby established. It shall be responsible for the management and proper application of the Agreement. To that end it shall issue recommendations. It shall take decisions in the circumstances provided for in the Agreement. The Joint Committee shall reach its decisions by mutual agreement.’

6Article 18 of the Agreement, entitled ‘Revision’, provides as follows:

‘If a Contracting Party wishes to have this Agreement revised, it shall submit a proposal to that effect to the Joint Committee. Amendments to this Agreement shall enter into force after the respective internal procedures have been completed, with the exception of amendments to Annexes II and III, which shall be adopted by decision of the Joint Committee and may enter into force immediately after that decision.’

The contested decision

7The third recital in the preamble to the contested decision provides: ‘[i]n order to preserve a coherent and correct application of the legal acts of the Union and to avoid administrative and possibly legal difficulties, Annex II to the Agreement needs to be amended to integrate new legal acts of the Union to which the Agreement does not currently refer.’

8Thus, in particular, as Regulation (EC) No883/2004 of the European Parliament and of the Council of 29April 2004 on the coordination of social security systems (OJ 2004 L166, p.1) had replaced Council Regulation (EEC) No1408/71 of 14June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971(II), p.416), in its version in force, it was necessary to update to that effect Annex II to the Agreement.

9Article 1 of the contested decision provides as follows:

‘The position to be taken by the Union in the Joint Committee established by Article 14 of the Agreement … shall be based on the draft Decision of the Joint Committee set out in Annex I to this Decision.’

10Article 1 of the draft decision of the Joint Committee set out in Annex I to the contested decision (‘the draft decision of the Joint Committee) provides:

‘Annex II to the Agreement … is replaced by the Annex to this Decision.’

Procedure before the Court

11By application lodged on 16January 2012, the European Commission requested leave from the Court to intervene in support of the form of order sought by the Council of the European Union.

12By order of the President of the Court of 2February2012, the Commission was granted leave to intervene in support of the form of order sought by the Council.

13In accordance with Article 84(1) of the Rules of Procedure of the Court, the Council submitted its written observations on the application for interim measures on 3February 2012.

14Pursuant to Article 93(5) of the Rules of Procedure, the Commission lodged its statement in intervention on 17February 2012.

15The United Kingdom submits that, by that statement in intervention, it was informed for the first time of the progress of the negotiations between the European External Action Service (‘the EEAS’) and the Swiss authorities and of the probability that the decision of the Joint Committee would enter into force on 1April 2012.

16In accordance with Article 93(6) of the Rules of Procedure, the United Kingdom submitted its observations on the Commission’s statement in intervention on 15March 2012, requesting the Court to rule on its application for interim measures before 31March 2012 and arguing that the entry into force of the decision of the Joint Committee would present it with a fait accompli and would render pointless the interlocutory relief sought.

17By its letters of 28 and 29March 2012, the United Kingdom repeated this request, stating that, in view of the exceptional circumstances of the present dispute, application of the procedure provided for in Article 84(2) of the Rules of Procedure is justified, and explaining that it is within the spirit of that provision for the President to exercise the discretion which it confers on him even after the observations of the other parties to the proceedings have been submitted.

18By its letter of 30March 2012, the Registry of the Court informed the Council that the President of the Court was calling on it to take all measures necessary to ensure that the draft decision of the Joint Committee would not enter into force before 30April 2012. In that letter, the Registry also informed the Council that a reasoned order of the President of the Court to that effect would be signed on 2April 2012.

19By its letter of 2April 2012, the Council informed the Court that the agreement of the Swiss authorities had been notified by e-mail to the EEAS on 31March 2012 and that the decision of the Joint Committee had thus been adopted by written procedure on 31March 2012 and entered into force, in accordance with Article 3 thereof, on 1April 2012. It also stated that the decision of the Joint Committee had been adopted pursuant to an international agreement and that it was for that reason not possible to proceed unilaterally with suspension of application of that decision.

20Requested by the Court to set out its views on that letter from the Council, the United Kingdom, by its letter of 4April 2012, pointed out, first, that the written procedure for the adoption of the decision of the Joint Committee was set in motion by a letter from the EEAS sent on 15December 2011, that is to say, one day before the adoption of the contested decision. It follows, according to the United Kingdom, that that letter cannot validly notify the position of the European Union to the Swiss authorities as the mandate conferred by the contested decision was not in force.

21Secondly, the United Kingdom pointed out that, with regard to the treatment of the letter from the Registry of the Court of 30march 2012 and the request of the President of the Court that the Council take all measures necessary to ensure that the draft decision of the Joint Committee would not enter into force before 30April 2012, the conduct of the Council demonstrates a lack of respect for proceedings before the Court and amounts to an infringement of the ‘principle of sincere cooperation’ within the terms of Article 4(3)TEU.

22In those circumstances, the United Kingdom requests, in that letter of 4April 2012, that the Court:

–order a preparatory inquiry pursuant to Article 84(2) of the Rules of Procedure, in order to ascertain the facts surrounding, first, the transmission of the letter of 15December 2011 from the EEAS and, second, the handling within the Council of the letter from the Registry of the Court of 30March 2012;

–primarily, order the Council to take all measures to ensure that the decision of the Joint Committee does not enter into force before 30April 2012; and

–in the alternative, if it is found that the Joint Committee decision did in fact enter into force on 1April 2012, order the Council to engage in urgent consultations with the Swiss authorities with a view to securing the suspension of the implementation of the decision of the Joint Committee.

The application for interim relief

Preliminary observations

23It should be borne in mind at the outset that, by its application, the United Kingdom has requested not only a suspension of the operation of the contested decision but also the granting of interim measures to similar effect. Requested by the Court to set out its submissions in more detail following the Council’s letter informing the Court of the entry into force of the decision of the Joint Committee, the United Kingdom, by its letter of 4April 2012, requested the Court, primarily, to find that the decision of the Joint Committee had not entered into force by reason of the fact that the written procedure for the adoption of the decision of the Joint Committee had been set in motion by the letter from the EEAS sent on 15December 2011, and to order suspension of the implementation of the contested decision. According to the United Kingdom, the EEAS was not authorised to notify the official position of the European Union to the Swiss authorities on 15December 2011 as the contested decision conferring on it such a mandate was not adopted until 16December 2011.

24As stated in paragraph 19 of the present order, the Council takes the view that the decision of the Joint Committee was adopted pursuant to an international agreement and that it is for that reason not possible to suspend unilaterally the application of that decision. It appears that, in making that submission, the Council doubts whether it is possible for the United Kingdom meaningfully to bring an application for interim relief.

25Without it being necessary to rule on the consequences of notification, on 15December 2011, of the official position of the European Union to the Swiss authorities, and irrespective of the question whether, following the letter of the Swiss authorities of 31March 2012, the decision of the Joint Committee entered into force on 1April 2012, it should be borne in mind that the United Kingdom requested, in the alternative, that the Council be ordered to engage in urgent consultations with those authorities with a view to securing suspension of the implementation of the decision of the Joint Committee.

26It follows that, in those circumstances, the present application for interim relief must, in any event, be examined from that angle.

27It should be borne in mind in this regard that, according to settled case-law, the judge hearing an application for interim measures may order interim relief only if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable damage to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Where appropriate, the judge hearing such an application must also weigh up the interests involved (see, inter alia, the order of the President of the Court in Case C‑404/04P‑R Technische Glaswerke Ilmenau v Commission [2005] ECR I‑3539, paragraph 10 and the case-law cited).

28The conditions thus imposed are cumulative, with the result that an application for interim measures must be dismissed if any one of them is absent (see, inter alia, the order in Technische Glaswerke Ilmenau v Commission, cited above, paragraph 11 and the case-law cited).

29It is necessary to examine whether those conditions are satisfied in the present case.

Urgency

30It is necessary, in the present case, first of all to examine the condition relating to urgency.

31In this regard, it should be borne in mind that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the definitive future decision, in order to ensure that there is no lacuna in the legal protection provided by the Court. For the purpose of attaining that objective, urgency must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim relief (order of the President of the Court in Case C‑7/04P(R) Commission v Akzo and Akcros [2004] ECR I‑8739, paragraph 36 and the case-law cited).

32It is for the party which alleges such damage to establish its existence. While it is not necessary for it to be absolutely certain that the damage will occur, a sufficient degree of probability being enough, the applicant is none the less required to prove the facts which are considered to found the prospect of such damage (order of the President of the Court in Case C‑156/03P‑R Commission v Laboratoires Servier [2003] ECR I‑6575, paragraph 36).

33In the present case, the United Kingdom contends that, by its application for interim relief, it is seeking to prevent the occurrence of changes in the legal position of the European Union and of the persons concerned until such time as it is possible for the Court to rule on the validity of the decision under challenge in the main proceedings. According to the United Kingdom, the criterion of urgency should be applied in the circumstances of the present case by analogy with the logic which, as the Court stated in its Opinion 3/94, [1995] ECR I‑4577, paragraphs 16 and 17, underlies the jurisdiction conferred by Article 218(11)TFEU.

34The United Kingdom takes the view that there is urgency in the circumstances of the present case, as the case-law requires, to avoid the serious difficulties and adverse consequences that would arise if the contested decision were to be annulled by the Court subsequent to its implementation by the decision of the Joint Committee. If the Court were to rule in that sense by finding that the contested decision ought to have been adopted on the basis of Article 79(2)(b)TFEU instead of on that of Article 48TFEU, the Council would be required, in accordance with Article 266TFEU, to adopt, in the place of the contested decision, a separate decision based on Article 79(2)(b)TFEU, in which the United Kingdom would be free not to participate. It would then be necessary to seek a replacement decision by the Joint Committee that would acknowledge the non-participation of the United Kingdom in the Council’s new decision and the fact that the Council was accepting the new obligations resulting from the amendment of Annex II on the basis of its international obligations towards the Swiss Confederation, but without according rights to non-active Swiss nationals.

35In those circumstances, the United Kingdom submits that the requirement of ‘serious and irreparable damage’, within the meaning of the Court’s case-law, is met, first, in view of the fact that the Swiss Confederation would be perfectly entitled to refuse to accept the replacement of the decision of the Joint Committee by a separate decision of that Committee or to accept it only in return for substantial concessions. In that case, the only way in which the incompatibility with the Treaties could be cured would be if the European Union were itself to denounce the Agreement. The United Kingdom adds that it is of the utmost importance for the European Union, as an actor on the international stage, not to find itself in a situation in which it would be obliged to renegotiate its international commitments in order not to affect adversely its status and image at international level.

36Second, the rights acquired by individuals in the area of the coordination of social security over the course of the period during which the decision of the Joint Committee applying the contested decision remained in force would not be affected by its replacement. The United Kingdom would be bound inescapably to honour those rights, which would have been acquired by the persons concerned contrary to its own rights derived from the primary law of the European Union.

37In this regard, concerning the allegedly difficult position in which the European Union would find itself in the negotiations with the Swiss Confederation subsequent to any annulment of the contested decision by the Court, it is first necessary to point out that this is a mere hypothesis and that the realisation of any resulting damage is dependent on many uncertain factors (see, by way of analogy, order of the President of the Court in Case C‑174/94R France v Commission [1994] ECR I‑5229, paragraphs 34 and 35).

38The United Kingdom has not invoked any concrete factor capable of establishing that the Swiss authorities would refuse to renegotiate an amendment of Annex II to the Agreement, if such renegotiation were to be necessary by reason of a judgment of the Court which might have as its ultimate consequence the adoption of a new decision, on a different legal basis, which would imply, by virtue of Protocols No21 and No22 annexed to the Treaty on the Functioning of the European Union, the change in the specific position of the Kingdom of Denmark, Ireland and the United Kingdom in relation to the amendment of Annex II to the Agreement.

39Likewise, the United Kingdom has not invoked any factors capable of proving that the position of the European Union in any new negotiations with the Swiss Confederation would be irreparably less advantageous in comparison with the position which it would have if the contested decision had been adopted on a different legal basis.

40It follows that the United Kingdom has not established, with the requisite certainty, the existence of serious and irreparable damage resulting from the position in which the European Union would find itself in negotiations with the Swiss authorities subsequent to annulment of the contested decision.

41With regard to the damage alleged by the United Kingdom resulting from rights definitively acquired by individuals in the area of coordination of social security over the course of the period during which the decision of the Joint Committee applying the contested decision remains in force, it must be held that this is damage which is essentially pecuniary in nature.

42Such damage cannot, however, save in exceptional circumstances, be regarded as irreparable, since financial compensation is generally capable of restoring the position of the person suffering the damage to what it had been before that damage occurred (see, to that effect, inter alia, orders of the President of the Court in Case C‑213/91R Abertal and Others v Commission [1991] ECR I‑5109, paragraph 24, in Case C‑404/01P(R) Commission v Euroalliages and Others [2001] ECR I‑10367, paragraph 69, and in Case C‑479/07R France v Council, paragraph 24).

43In the present case, the United Kingdom has not invoked any such exceptional circumstances. It has merely pointed out that rights which may have been acquired by individuals by virtue of the decision of the Joint Committee could last for the remainder of the lives of those individuals.

44However, as the Commission has pointed out, without being challenged on this point by the United Kingdom, only approximately 29000 Swiss nationals are resident in the United Kingdom. Among these, only those who come within the limited categories of ‘non-active’ persons identified by that Member State, that is to say, those who are not retired persons, students, persons affiliated to a social-security scheme for employed or self-employed workers, or members of the families of such persons, and who come to establish themselves in the United Kingdom with a view to obtaining social security benefits could, in the appropriate circumstances, adversely affect that Member State.

45In any event, it cannot be stated with certainty that the rights acquired by individuals during the period for which the decision of the Joint Committee remains in force would last for the remainder of their lives even in the event of a subsequent annulment of the contested decision. Several factors, such as annulment ex nunc or ex tunc of the contested decision, the possible maintenance of its effects for a limited period and the adoption of transitional provisions, could have a bearing on the duration of the enjoyment of those rights.

46It follows from these factors that any pecuniary damage alleged by the United Kingdom is likely to be rather limited. Moreover, the United Kingdom has not provided any evidence capable of establishing, even approximately, the consequences that the entry into force of the decision of the Joint Committee would have for its social security system.

47Consequently, in the light of all of the foregoing considerations, it must be concluded that the United Kingdom has not established the existence of serious and irreparable damage which would result from the entry into force of the decision of the Joint Committee.

48It follows that the present application, as it results from the United Kingdom’s letter of 4April 2012 and which seeks an order requiring the Council to engage in urgent consultations with the Swiss authorities with a view to securing suspension of the implementation of the decision of the Joint Committee, does not satisfy the condition of urgency. That application must therefore be dismissed, without it being necessary to examine the other conditions set out in paragraph 27 of the present order.

On those grounds, the President of the Court hereby orders:

1.The application for interim relief is dismissed.

2.The costs are reserved.

[Signatures]

*Language of the case: English.