Opinion of the Advocate-General
The content of my original Opinion and the reasons for reopening the oral procedure in this case
1 By order of 23 September 1998, the Court directed that the oral procedure in this case was to be opened - it had concluded on 12 February 1998 when I delivered my Opinion. In the order reopening the proceedings, the Court observed that Article 3(1) of Decision 3/80 of the Association Council of 19 September 1980 on the application of social security schemes of the Member States of the European Communities to Turkish workers and members of their families (hereinafter `Decision 3/80'), (1) was merely the expression, in the specific area of social security, of the general principle of non-discrimination on grounds of nationality contained in Article 9 of the Agreement establishing an association between the European Economic Community and Turkey signed at Ankara on 12 September 1963 by the Republic of Turkey of the one part and the Member States of the EEC and the Community of the other part (hereinafter `the EEC-Turkey Agreement'). (2) The order re-opening the proceedings therefore states: `The Court may consider it appropriate to give a ruling on that provision of the Agreement'. The parties to the main proceedings, the intervening Member States and the Commission had not given their views on Article 9 of the EEC-Turkey Agreement in their written observations. A new hearing was held, therefore, at which the Court considered it appropriate to hear all interested parties. The point discussed by the plaintiff in the main proceedings, the national governments and the Commission was, consequently, merely whether and how, in order to answer the questions on which a preliminary ruling is sought from the Court, the abovementioned Article 9 may be of importance, `considered on its own or in conjunction with Article 3(1) of Decision 3/80'. For my part, I shall confine this new Opinion to the matters referred to in the order reopening the proceedings. My previous Opinion should be deemed to be referred to herein in its entirety. (3) I shall add to it, in the alternative, as I shall explain below.
The relevance of Article 9 of the EEC-Turkey Agreement to the answers to be given to the preliminary questions
2 I would point out, first of all, that the aim of the EEC-Turkey Agreement `is to promote the continous and balanced strengthening of trade and economic relations between the parties, while taking full account of the need to ensure an accelerated development of the Turkish economy and to improve the level of employment and the living conditions of the Turkish people' so as to `facilitate the accession of Turkey to the Community at a later date'. (4) In order to pursue those objectives, the association created by the Agreement in question involves (i) a preparatory stage to enable Turkey to strengthen its economy with aid from the Community, (ii) a transitional stage for the progressive establishment of a customs union and for the alignment of the economic policies of the parties, and (iii) a final stage based on the customs union and entailing closer coordination of economic policies. (5) The rules for the application of the final stage are laid down in Decision 1/95 of the EC-Turkey Association Council. (6)
3 Under Article 9 of the EEC-Turkey Agreement, contained in Title II thereof (entitled `Implementation of the transitional stage'), `The Contracting Parties recognise that within the scope of this Agreement and without prejudice to any special provisions which may be laid down pursuant to Article 8, any discrimination on grounds of nationality shall be prohibited in accordance with the principle laid down in Article 7 [now 6] of the Treaty establishing the Community'. Article 8 provides: `In order to attain the objectives set out in article 4 [that is, progressive establishment of a customs union and closer alignment of the economic policies of Turkey and the Community in order to ensure the proper functioning of the association and the progress of the joint measures which this requires] ... determine the conditions, rules and timetables for the implementation of the provisions relating to the fields covered by the Treaty establishing the Community which must be considered; this shall apply in particular to such of those fields as are mentioned under this Title and to any protective clause which may prove appropriate'. The conditions, procedure and timetable for implementation of the transitional stage were laid down (by the Council of Association) in the form of an Additional Protocol signed by the contracting parties on 23 November 1970 in Brussels and annexed to the EEC-Turkey Agreement (hereinafter `the Additional Protocol'). (7) It is also to be noted that in Title II of the Additional Protocol, entitled `Movement of persons and services' there is a special provision which reaffirms, in subiecta materia, the obligation, albeit only incumbent on the Member States (without repricocity), to ensure equal treatment in conformity with the general requirements of Article 9 of the EEC-Turkey Agreement. Article 37 of the Additional Protocol - the text of which echoes the wording of Article 48(2) of the Treaty - requires each Member State to grant `conditions of work and remuneration ... to workers of Turkish nationality' which do not `discriminate on grounds of nationality between such workers and workers who are nationals of other Member States of the Community.'
4 It will be remembered that Mrs Sürül's claim in the main proceedings is that the German court should not apply to her the domestic provision according to which the right to obtain the family benefit at issue is conditional upon possession of a specific residence document not required of the citizens of the Member State concerned. How can that claim be based on Article 9 of the EEC-Turkey Agreement `considered in conjunction with Article 3(1) of Decision 3/80', to use the wording of the order reopening the proceedings? Article 3(1) is clearly a specific manifestation, in the area of social security, of the general principle of non-discrimination laid down in the abovementioned Article 9: that was the view taken by the Court in making the abovementioned order. If the Court were to consider that the specific provision of the decision prohibits the discrimination complained of by the plaintiff in the main proceedings, that pronouncement will be sufficient to dispose of the question. In other words, it would be superfluous to refer also to the general principle of equal treatment. That is the case particularly since Article 9 of the EEC-Turkey Agreement applies expressly without prejudice to particular provisions concerned with the conditions, procedures and progression of the transitional stage of the Association (see point 3 above). Such particular provisions include, in my opinion, specific manifestations of the general prohibition of discrimination on grounds of nationality contained, first, in Article 37 of the Additional Protocol (see point 3 above) and, second - a fact which is more important here - in Article 3(1) of Decision No 3/80. That decision was adopted specifically on the basis of the Additional Protocol and precisely on the basis of Article 39 thereof, pursuant to which `the Council of Association shall adopt social security measures for workers of Turkish nationality moving within the Community and for their families residing in the Community'. I refer to the Opinion of Advocate General Jacobs in Case 305/87 in support of the view that a domestic provision is to be declared contrary to Article 9 of the EEC-Turkey Agreement where there is unjust discrimination against persons not enjoying protection under a more specific provision of Community law, but such a declaration of incompatibility serves no useful purpose where a more specific basis is available. (8)
5 The question whether Article 9 of the EEC-Turkey Agreement can apply to Mrs Sürül (or people in similar circumstances) would, on the other hand, arise if the Court were to determine, without following the course proposed in my first Opinion, that Article 3(1) of Decision 3/80 has no direct effect or that that decision is in any event inapplicable ratione personae (or ratione materiae) to a Turkish national whose subjective circumstances are similar to those of the plaintiff in the main proceedings. Article 9 of the EEC-Turkey Agreement corresponds, from the standpoint both of its function and of its substance, to Article 3(1) of Decision 3/80. Accordingly, I again put to the Court most of the observations in my earlier Opinion devoted to the provisions of Article 3(1). Mutatis mutandis, they are also valid, in my opinion for an analysis of Article 9.
Is Article 9 of the EEC-Turkey Agreement directly applicable?
6 In my earlier examination of the importance of Article 3(1) of Decision No 3/80 in relation to the questions submitted to the Court, I referred to the settled case-law of this Court. I do so again. I refer to the Court's judgments concerning the possibility of invoking before the national court provisions laid down in agreements concluded by the Council under Article 228 or 238 of the Treaty, or the legislation deriving from such agreements. They are judgments which, I said then and repeat here, are clearly inspired by the requirement of ensuring, in conformity with the principles characterising a Community governed by the rule of law such as the European Community, immediate protection of rights conferred on individuals by international agreements of that kind. The national court is required, the Court of Justice has stated, to verify whether the individual provisions relevant to the case before it are merely programmatic or - having regard to their wording, and to the subject-matter and nature of the agreement in question - they involve, on the other hand, clear and precise obligations whose direct effect is not conditional upon the adoption of subsequent measures by the contracting parties to the agreement. In the latter case, the individual concerned will be able to have his rights protected by the national court. (9)
7 Let us look, therefore, at the literal wording of Article 9 of the EEC-Turkey Agreement. That provision embodies, in clear, precise and unconditional terms, an obligation to achieve a result on the contracting parties: that of ensuring equal treatment for Community and Turkish citizens in the areas covered by the agreement. It is a prohibition of discrimination on grounds of nationality, which is not conditional, in its implementation or its effects, upon the adoption of any subsequent measure. It thus meets the requirement of a Community rule which can be relied on before the national court: moreover, it does not differ from the similar provisions laid down by the Treaty in Article 6 (a provision expressly referred to by the abovementioned Article 9) and in other specific provisions giving effect to the general principle (such as Articles 48(2), 52, 59 and 95). Of course, the Court has long since recognised the direct effect (the so-called vertical effect) of the provisions mentioned here. (10)
8 That Article 9 of the EEC-Turkey Agreement, in its particular context, performs a function identical to that of the principle of non-discrimination laid down by Article 6 of the Treaty is also apparent from the principles expounded by the Court in its judgment in Metalsa: `the extension of the interpretation of a provision in the Treaty to a comparably, similarly or even identically worded provision of an agreement concluded by the Community with a non-member country [the Court said] depends, inter alia, on the aims pursued by each provision in its particular context and ... a comparison between the objectives and context of the agreement and those of the Treaty is of considerable importance in that regard. [As provided by Article 31 of the Vienna Convention of 23 May 1969 on the Law of Treaties, an international Treaty must not be interpreted solely by reference to the terms in which it is worded but also in the light of its objectives'. (11)] The rule in Metalsa would therefore mean in this case that the Court's interpretation of Article 6 of the Treaty could be extended to Article 9 of the EEC-Turkey Agreement. The French Government, however, expressed the contrary view at the hearing: those international instruments are very different, and a `wide-meshed' association cannot be assimilated to the integration of a State into the Community. I am not persuaded by that argument. In Pabst and Richarz, this Court upheld the direct effect of Article 53(1) of another association agreement, the one concluded by the EEC with Greece on 9 July 1961. (12) I do not deny that that agreement went further than the EEC-Turkey Agreement (and the Additional Protocol thereto) in the direction of gradual adjustment to the requirements of Community law. The fact remains, however, as Advocate General Darmon observed in Sevince, the basic outline and content of the two agreements are very similar. Furthermore, there is nothing in the preamble to the EEC-Turkey Agreement to indicate a priori that its provisions are not linked with the objective of preparing for the possible accession of Turkey to the Community. (13)
9 What is more important, if account is taken of the subject-matter and nature of the EEC-Turkey Agreement (see point 2, above), there can, in my opinion, be no question of failing to recognise that Article 9 directly governs the situation of Turkish citizens. It is true that in Demirel, (14) the Court observed, with regard to the structure and content of the agreement in question, that `in general, it sets out the aims of the association and lays down guidelines for the attainment of those aims without itself establishing the detailed rules for doing so'. As regards, in particular, the provisions relevant to this case, the Court attributed an essentially programmatical role both to Article 12 of the EEC-Turkey Agreement, according to which, in the area of free movement for workers, the contracting parties agreed to be inspired by Articles 48, 49 and 50 of the Treaty, and to Article 36 of the Additional Protocol, according to which such freedom of movement is to be achieved gradually between the end of the 12th and 22nd years after the entry into force of the agreement, in accordance with the principles laid down by the abovementioned Article 12 and in accordance with the procedures laid down for that purpose by the Council of Association. (15) That said, it should be borne in mind, however, that the Court did not exclude the direct applicability of all the provisions, without distinction, of the agreement in question but took the very different course of concluding that the problem of direct effect should be resolved by examining individual provisions case by case. In that way, implicitly but clearly, the criterion was laid down which defines the effects of the provisions of which the agreement is made up. It is a question of applying it. Neither the failure to include in the agreement, in general, precise provisions designed to attain the aims of association nor the progressive character which the contracting parties agreed to confer, in particular, upon attainment of freedom of movement for workers between the Member States and Turkey is such as to exclude the result which is important here: namely that the individual provisions of the agreement, intended to bring the association into line with Community law, can be seen as immediately applicable having regard to their scope. (16) That, in my opinion, applies to Article 9, which embodies a prohibition of discrimination on grounds of nationality; and it seems to me to be significant that the intervening national governments, although inferring that Article 9 is merely programmatic in nature, were not able to go on to indicate what additional measures have been or should be specifically adopted to give effect to the principle of equal treatment. I agree with the Commission that that provision should, in fact, be seen as precise and unconditional.
10 I do not, on the other hand, think it decisive that the EEC-Turkey Agreement seeks essentially to favour rapid development of the Turkish economy and improvement of the level of employment and standard of living of the people in that country, so as to facilitate Turkey's subsequent accession to the Community: the relationship, it is said, is characterised by a significant imbalance between the commitments assumed by the contracting parties. (17) However, that does not mean, once again on the basis of the case-law of the Court of Justice, that the association agreement cannot contain provisions giving rise to rights for individuals which can enjoy immediate protection from the national court even where there are incompatible domestic provisions. (18)
11 It should be noted, finally, in support of the position which I advocate, that the direct effect of the principle of equal treatment has already been upheld by the Court in relation to similar provisions in cooperation agreements between the EEC and Morocco (19) and the EEC and Algeria. (20) As pointed out, with regard to that case-law, by Advocate General Van Gerven in Kziber, `an [international] agreement does not necessarily have to be "long-term" (in other words directed towards integration into the Community) for its provisions to be of direct effect'. It is sufficient in that regard that the agreement `does more than merely impose reciprocal obligations on the signatory States, in other words ... is of such a nature as or is intended to govern the legal situation of individuals'. (21) If that is so, the direct effect of the principle of equal treatment must be accepted a fortiori where, as in the present proceedings, the provision embodying that principle is contained in an association agreement. Agreements of that kind establish closer links between the Community and the non-member country in question than those giving rise to a cooperation agreement. (22) The association creates `special, privileged links with a non-member country which must, at least to a certain extent, take part in the Community system'. (23) According to the German and United Kingdom Governments, however, Article 9 of the EEC-Turkey agreement constitutes, for the purposes of possible recognition of direct effect, a quid minus regarding the prohibition of discrimination on grounds of nationality contained in the abovementioned EEC-Morocco agreement (Article 41(1)) and EEC-Algeria agreement (Article 39(1)), since those prohibitions are expressly applicable to the specific area of social security, whereas Article 9 merely establishes a link with the general principle of equal treatment contained in the Treaty. I am unable to share that view. Article 9, it is said, is not a provision having direct effect because it places outside its scope the area of social security, with which the question before us is concerned. However, by reasoning thus, they are confusing two aspects of the problem, which should in fact be kept separate. It is one thing to question whether Article 9 satisfies - as I consider it does - the conditions to be an immediately applicable provision, but it is quite another to examine whether there are grounds for saying that the present case does not fall within the scope of that provision, whether or not it is intended to have direct effect. I shall now consider that second aspect.
12 An analysis of the wording of Article 9 of the EEC-Turkey agreement and of the subject-matter and nature of the agreement in which that provision appears prompts me to conclude that it is a directly applicable provision. It must in any event be concluded that the persons to whom it applies are entitled to rely upon it before national courts.
Does a Turkish citizen in circumstances like those of Mrs Sürül come within the scope of Article 9 of the EEC-Turkey agreement?
13 It is necessary, at this point, to verify whether the provision at issue, which requires the Member States and Turkey not to introduce or keep in force discriminatory provisions based on nationality, is applicable to the position of a Turkish citizen who, like the plaintiff in the main proceedings, (i) has been authorised - as the spouse of a Turkish citizen residing in the territory of a Member State, who, as well as pursuing his own university studies, is employed for a maximum of 16 hours a week on the basis of a permit to work on an auxiliary basis and is covered by compulsory insurance against accidents at work - to join her husband in order to bring the family together, (ii) legally resides with him in the host Member State, and (iii) applies for a family benefit such as a dependant child allowance. The law of the host Member State provides, with regard to that benefit, that the legally prescribed contributions to compulsory invalidity and old-age insurance are deemed to be paid for the parent concerned throughout the period needed for the education of any of his children.
Those are all the relevant features of this case. Let us examine then individually, in relation to the provisions of Article 9. In the first place, it is necessary to establish whether a person may, in circumstances like those of Mrs Sürül, be classified as a `worker' or `member of a worker's family'. The wording of Article 9 is clear in its definition of the persons and areas to which its prohibition of discrimination applies: that is how I understand the phrase `within the scope of the EEC-Turkey Agreement'. As I have already pointed out (see points 3 and 9 above), the areas covered by the agreement in question include freedom of movement for workers between Member States and Turkey: this is the area which is important for the purposes of this analysis. The scope of Article 9 of the EEC-Turkey agreement must therefore be defined by reference to the combined provisions of that Article and of Article 37 of the Additional Protocol referred to above (see point 3 above). The latter provision too should, in my opinion, be regarded as enjoying direct effect in the same way as Article 9, for the reasons set out above (points 6 to 11) concerning the latter provision.
14 The question with which we are concerned can, in my view, be answered clearly by reference to the considerations set out in my first Opinion (see points 46 and 50 to 66). As I stated (see point 4), Decision No 3/80 was adopted on the basis of Article 39 of the Additional Protocol; also, it entered into force on 19 September 1980 and is binding on the contracting parties from that date. (24) And therefore, if the Court should conclude that none of the provisions of Decision No 3/80 (including therefore Article 3(1)) has direct effect, there would in my opinion be no obstacle to the provisions laid down in the decision being used to define the scope ratione personae and ratione materiae of the rules on the association set up by the EEC-Turkey agreement, and therefore - so far as is relevant here - of Article 9 itself. A Turkish citizen in the circumstances of Mr Sürül would therefore be covered - for the purposes of being granted the `family benefit at issue' - by the right to equal treatment as a `member of a worker's family'; and even in so far as she is herself a `worker', only for the period for which, under national legislation, the statutory contributions to the compulsory invalidity and old-age insurance are deemed to be paid in her favour for the period when she is bringing up a child.
15 However, I think it is appropriate at this stage to consider whether Article 9 of the EEC-Turkey agreement, supplemented by the relevant provisions of the Additional Protocol, is applicable to the circumstances of the plaintiff in the main proceedings by virtue of some part of Decision No 3/80 other than the mere reference in Article 3(1). In that connection, I would observe that between Article 9 of the EEC-Turkey agreement and Article 37 of the Additional Protocol there is mutatis mutandis a relationship similar to that existing between Articles 6 and 48(2) of the Treaty. And therefore, on the basis of the judgment of the Court in Metalsa, mentioned above, (see point 8), the interpretation given by the Court to Article 48(2) of the Treaty should be extended to the abovementioned Article 37. According to settled case-law of the Court, the concept of worker under Article 48 of the Treaty has a Community meaning and cannot be interpreted restrictively. An essential characteristic of the employment relationship is the fact that a person provides, for a certain period, services for and under the direction of another and receives payment in return. Whilst part-time work also falls within the scope of Article 48 et seq., those provisions do not cover activities performed on such a small scale as to be purely marginal and ancillary; those provisions apply, in fact, only to the performance of effective and genuine activities. (25) Advocate General Darmon observed in Eroglu that it was impossible to `maintain, without further analysis, that a worker within the meaning of the Association Agreement is, by simple analogy, a person who meets the Community definition of that term'. Turkish workers, although no longer in the situation of citizens of other non-member countries, nevertheless cannot, he said, be placed on the same footing as Community workers, in particular for the purposes of access to the territory of a Member State (26) and entitlement to stay there, to obtain renewal of a work permit and to freely engage in any employment. (27) Advocate General Darmon recognised, however, that there is a tendency for their status as workers to be drawn closer to the Community definition; that is because the EEC-Turkey agreement, guided by Article 48 of the Treaty, `extends progressively to Turkish nationals the ambit of one of the fundamental freedoms of the Community, namely access to the labour market [and] therefore pursues the same aim as that pursued by the EEC Treaty in respect of Community nationals'. On the basis of those considerations, Advocate General Darmon concluded that, in the absence of anything to indicate a restrictive interpretation, the concept of worker as it appeared in the agreement could not be interpreted `very differently from the Community meaning of worker as expounded in the judgment of the Court in Le Manoir' (see footnote 25 above and the relevant part of the text). (28)
16 Those principles now appear to be accepted by the Court. In a number of recent preliminary rulings on the interpretation of the terms `belonging to the labour force of a Member State' and `legal employment' (in the context of Article 6 of Decision No 1/80), this Court has used a definition of `worker' which is almost identical to that developed in Le Manoir. (29) I refer to the `twin' judgments in Günaydin and Ertanir, according to which - subject to the fact that the relevant provisions relating to the EEC-Turkey association do not affect the power of the Member States to regulate access of Turkish citizens to their territories and the conditions of their first employment - (30) the agreement establishing that association includes within its scope the circumstances at issue here: the case of a Turkish migrant worker who has been authorised to enter the territory of a Member State and has legally performed, whilst in possession of the authorisation prescribed by national law and for a reasonable period of time, a paid activity involving the pursuit of a genuine and effective economic activity under the direction of another person for remuneration. (31) That interpretation, added the Court, is not affected by the fact that the worker in question had obtained in the host Member State `only residence and/or work permits restricted to temporary paid employment by a specific employer'. (32) Moreover - as is clear from the Court's decisions on the interpretation of the first paragraph of Article 7 of Decision No 1/80 - regard must be had to the aim of favouring employment and residence of Turkish workers duly registered as belonging to the labour force of a Member State and of ensuring that their family links are maintained there. On that basis, the EEC-Turkey agreement also covers a Turkish citizen who, as the member of the family of a Turkish migrant worker, has been authorised to join that worker in the Member State in question so as to enable the family to be together. (33) Whilst it is true that the abovementioned first paragraph of Article 7 does not define the term `member of the family', it is reasonable to conclude that it is to be understood as having the same meaning as the same term used in Article 10 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community: (34) in the same way, as according to the Court, the term `social security' in the context of the Magreb cooperation agreements is to be interpreted by reference to Regulation No 1408/71. (35)
17 A different issue is that of the applicability ratione materiae of the provision at issue to family benefits such as the allowance and the supplements for dependent children, claimed by Mrs Sürül in these proceedings. In this area, too, my analysis is based on the premiss that such applicability cannot be asserted by interpreting the EEC-Turkey agreement in the light of Article 4(1)(h) of Decision No 3/80 (see point 15 above). The Commission is of the opinion that the question raised here should be answered in the affirmative. In its view, `conditions of employment' (see point 3 above) are brought into the sphere of the principle of non-discrimination on grounds of nationality as a result of the express reference contained in Article 37 of the Additional Protocol. That term, according to the Commission, is to be construed in a broad sense in relation to the Treaty rules on the free movement of workers; it covers, in the Commission's view, all matters relating to the situation of a worker who has accepted employment, including situations governed by the social security provisions and - so far as is relevant here - the actual right to benefits like the dependent child allowance. I do not share that view. It is clear from the case-law of the Court that it is possible to speak of a `working condition' only if the benefit at issue - although formally forming part of a national social security system - is connected with the performance of a working activity. (36) With regard to family benefits, the German legislation on the other hand has established a social security scheme applicable to all residents regardless of their occupational status (and subject to exceptions under the legislation on aliens' residence).
18 That said, I must immediately point out that, in my view too, family benefits intended to alleviate the financial burdens of bringing up a child fall within the scope of the EEC-Turkey agreement, but for reasons other than the one put forward by the Commission. Although Article 51 of the Treaty is not referred to in the text of Article 12 of that agreement (see point 9 above), Article 39(1) of the Additional Protocol - which, like Article 37, appears in Title II (`Movement of persons and services') thereof - gives the Association Council the power to adopt social security measures for workers of Turkish nationality moving within the Community and for their families residing in the Community. That article provides, in particular, in paragraph 3 that those measures `must ensure that family allowances are paid if a worker's family resides in the Community' (emphasis added). Moreover, if the principles expounded by the Court in Kziber, (37) are applied by analogy, the concept of social security in the context of the EEC-Turkey agreement is in any event to be seen as analogous to the one found in Regulation No 1408/71, which covers social security and specifically family benefits (see Article 4(1)(h)).
19 I therefore consider that a Turkish citizen in circumstances like those of Mrs Sürül - at least in her capacity as a member of a worker's family (38) - is one of the persons covered by Article 9 of the EEC-Turkey agreement, read in conjunction with Articles 37 and 39 of the Additional Protocol. I repeat what I stated in my first Opinion: to keep to a limited concept of `worker' would, in the circumstances of the case, be tantamount to unjustifiably limiting the right of Turkish citizens to move, with or without their families, within the Community for the purposes of employment and would involve denying adequate protection for Turkish workers subject to the legislation of a Member State, in breach of the purpose and spirit of the EEC-Turkey agreement. Moreover, there can be no doubt as to the fact that the plaintiff in the main proceedings comes within the substantive scope of Article 9 of the EEC-Turkey agreement, interpreted in the light of Article 39 of the Additional Protocol.
Does the claim of the plaintiff in the main proceedings benefit from the prohibition of discrimination on the basis of nationality laid down in Article 9 of the EEC-Turkey agreement?
20 Having answered in the affirmative the question whether it is possible to invoke before the Sozialgericht the principle of equal treatment laid down in Article 9 of the EEC-Turkey agreement in conjunction with Articles 37 and 29 of the Additional Protocol, I can but repeat, with regard to the scope of that principle, what I stated in my first Opinion with reference to Article 3(1) of Decision No 3/80. Mrs Sürül's case concerns a situation which can be appraised directly in relation to the obligation of equal treatment described above; the right asserted by by the plaintiff to receive the family benefits at issue for the period claimed derives, in my view, from application of the principle of non-discrimination in conjunction with the German legislation on family benefits. The finding that the abovementioned provisions of the agreement have direct effect thus appears sufficient to allow Mrs Sürül to secure effective judicial protection, provided of course that there are indications of discriminatory treatment. To this case can be applied by analogy the decisions of the Court interpreting Article 48(2) of the Treaty (see point 15 above) according to which, also in the field of social security for migrant workers, `the principle of equal treatment prohibits not only overt discrimination based on nationality but all covert forms of discrimination which, by applying other distinguishing criteria, in fact achieved the same result'. (39) And the Member States therefore cannot escape the obligation of ensuring equal treatment, not even by recourse to measures based on a composite criterion, combining the criterion of the nationality of the beneficiary of a social security benefit with that of the nature (temporary or continuing) of his residence in national territory. Now, that is precisely what the legislation mentioned by the national court does: the Federal Law on family benefits indirectly draws a distinction between the treatment afforded to a German or Community national and that accorded to a person who is neither, depending on the type of residence document held by the person concerned. Unlike non-Community foreign citizens in the same circumstances as the plaintiff, however, German citizens temporarily residing in Germany are entitled to family benefits in any event: by definition they satisfy the legal requirement of being authorised to reside in national territory on a stable and permanent basis. As the Court held in Martínez Sala, the fact that the Member State requires a national of another Member State who intends claiming a non-contributory family benefit (child-raising allowance) similar to that at issue in these proceedings to produce a formal document issued by its administration, whereas no such document is required of its own citizens, amounts to unequal treatment. (40) That principle must, in my opinion, be applied by analogy to the present case.
21 As regards possible objective justification for such difference of treatment for non-Community aliens, based (indirectly) on nationality by reference to the nature of the residence, at first sight it appears to be founded on the premiss that the extent of the expenses incurred in bringing up children, borne by families habitually resident in Germany, and, therefore, the requirement of taking advantage of financial support from the State must vary according to the nationality of the parents responsible for bringing up the children and, where the parent is a foreigner, on the basis of his residence document, which may or may not be permanent. That distinguishing criterion, however, cannot be regarded as justified: an allowance for dependent children is needed by all resident families for the period of their stay in Germany. It is no accident that the automatic social security cover (upon payment of contributions for three years to compulsory invalidity and old-age insurance) provided for by the German social security code for the bringing up of children and payable to the parent responsible for doing so is linked to the requirement of habitual residence in German territory and not to nationality or the type of permit which allows such residence. The distinction between parents of German nationality, who qualify for the benefit at issue even if resident on national territory only on a conditional and temporary basis, and parents legally authorised to reside for a limited period which cannot be extended, who are necessarily non-Community aliens, is therefore in my opinion devoid of any reasonable and convincing justification.
Limitation of the temporal effects of the judgment in this case
22 A last observation is called for, I think, regarding the question whether it is appropriate for the Court, in accordance with a general principle of legal certainty forming part of the Community legal order, to limit the temporal effects of its judgment in this case (if, of course, it approves the solution I propose). In my first Opinion I suggested that the Court's judgment should take effect only from the date of its delivery, subject to the safeguards made necessary by the principle of full and effective judicial protection for those who, before the date of the judgment, instituted legal proceedings or lodged an equivalent claim. In support of that view, I relied, first, on the considerable objective uncertainty about the entry into force or otherwise of Decision No 3/80, which continued until the date of the Court's judgment in Taflan-Met, and, second, the no less serious and objective uncertainties which that judgment raised concerning the possibility of invoking in legal proceedings that decision and, therefore, the principle of non-discrimination laid down in Article 3(1) thereof, in the absence of implementing measures adopted by the Council.
The position just outlined could not, in my opinion, be maintained if the Court were to decide to answer the preliminary questions in these proceedings on the basis of an interpretation of Article 9 of the EEC-Turkey agreement and Articles 37 and 39 of the Additional Protocol. Indeed, even if the serious financial repercussions mentioned by the Member States which intervened were to be regarded as substantiated by specific evidence, (41) the fact would remain that, in the light of settled case-law of the Court, the interpretation of a principle of non-discrimination on grounds of nationality, like the one laid down in the abovementioned provisions relating to the EEC-Turkey association, could not reasonably give rise to `objective and significant' uncertainties regarding either its scope or the possibility of relying on it directly. (42) In this case, however, there is no absolutely exceptional circumstance such as to justify an exception to the principle of the retroactivity of interpretative judgments requested in this case by the national governments which have intervened. (43)
Conclusions
In view of the foregoing considerations, I suggest that, if it does not follow my Opinion of 12 February 1998 in this case, the Court should give the following answers to the questions submitted by the Sozialgericht:
Article 9 of the Agreement establishing an association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963 by the Republic of Turkey of the one part and the Member States of the EEC and the Community of the other part, in conjunction with Articles 37 and 39 of the Additional Protocol, signed by the contracting parties on 23 November 1970 in Brussels and annexed to the EEC-Turkey agreement, is to be interpreted as prohibiting a Member State from requiring of a Turkish citizen, who (i) has been authorised, to enable the family to be together, to join his spouse, a Turkish citizen residing in the territory of a Member State, who, in addition to studying at university, is engaged in genuine gainful employment for a limited number of hours per week on the basis of a permit for auxiliary work, and (ii) lawfully resides with his spouse in the host Member State, possession of a specific residence document allowing its holder to remain on a stable basis in national territory as a precondition for the grant of a family benefit such as the allowance and supplement for dependent children provided for by German law, where no such document is required of its own citizens residing in national territory.
(1) - OJ 1983 C 110, p. 60. Article 3(1) provides: `Subject to the special provisions of this Decision, persons resident in the territory of the Member States to whom this decision applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State'. I would point out that the principle of equal treatment laid down in Article 3(1) of Decision 3/80 reproduces, in virtually identical terms, the one laid down in Article 3(1) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their family moving within the Community (hereinafter `Regulation No 1408/71', OJ English Special Edition 1971 (II), p. 416, as amended).
(2) - The EEC-Turkey Agreement was concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113, p. 1). Under Article 22(1) thereof, the Association Council - set up by the abovementioned Article 6 and comprising, on the one hand, members of the Governments of the Member States, of the Council and of the Commission, and, on the other, members of the Turkish Government - has the power to take decisions `in order to attain the objectives of this Agreement ... in the cases provided for therein. Each of the parties shall take the measures necessary to implement the decisions taken'.
(3) - I also refer to my earlier Opinion for on account of the legislative and factual background to the preliminary questions (see points 1 to 14).
(4) - See preamble to and Article 2(1) of the EEC-Turkey Agreement (cited above, note 2).
(5) - See Case 12/86 Demirel [1987] ECR 3719, paragraph 15.
(6) - See Decision 1/95 of the EEC-Turkey Association Council 22 December 1995 on implementing the final phase of the Customs Union (OJ 1996 L 35, p. 1).
(7) - OJ 1993 L 293. The additional protocol was approved on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1973, C 113, p. 17); pursuant to Article 63(2) therefore, it entered into force on 1 January 1973.
(8) - See the Opinion given on 13 April 1989 by Advocate General Jacobs in Case 305/87 Commission v Greece [1989] ECR 1468, point 14, regarding the alleged infringement of Articles 7 (now 6), 48, 52 and 59 of the Treaty by national legislation concerning the purchase and enjoyment of immovable property. See also the Opinion delivered on 15 January 1991 by Advocate General Darmon in Case C-10/90 Masgio [1991] ECR I-1130, point 10. Moreover, the case-law of the Court has upheld the principles that, first, where legislation of a Member State is incompatible with one of the specific implementing provisions of Article 6 of the Treaty in a particular field, that legislation is also incompatible with the general principle requiring equal treatment (see, among many, Case C-334/94 Commission v France [1996] ECR I-1307, paragraph 13) and, second, the abovementioned Article 6 falls to be applied autonomously only in situations governed by Community law for which the Treaty does not lay down specific provisions prohibiting discrimination on grounds of nationality (see, amongst many, Case 305/87 Commission v Greece [1989]ECR I-1461, paragraphs 13 and 28, and Case C-390/96 Lease Plan [1998] ECR 2553, paragraph 40; recent examples of such autonomous application of the general principle of equal treatment are the judgments in Joined Cases C-92/92 and C-326/92 Collins v Imtrat Handelsgesellschaft and Others [1993] ECR I-5145; Case C-43/95 Data Delecta and Others v MSL Dynamics [1996] ECR I-4661, and Case C-85/96 Martínez Sala [1998] ECR I-2691, paragraph 63). It is true that in some decisions the Court has interpreted cumulatively the general prohibition of discrimination and the specific manifestations thereof relevant to the case in question, contained in other provisions of the Treaty or measures of Community institutions. I consider, however, that in many such cases the Court has merely adhered to the original wording of the questions submitted for a preliminary ruling. See, amongst many, Case C-10/90 Masgio [1991] ECR I-1119, paragraphs 11 to 17 and 25, concerning interpretation of Articles 7 (now 6), 48 to 51 of the Treaty and of Article 3(1) of Regulation No 1408/71 (see above, footnote 1); see also, recently, Case C-160/96 Molenaar [1998] ECR I-843).
(9) - Case 12/86, cited in footnote 5 above, paragraph 14.
(10) - See, amongst many, Case 14/68 Wilhelm v Bundeskartellamt [1969] ECR 1, concerning Article 7 (now 6); Case 167/73 Commission v France [1974] ECR 359, paragraph 41, concerning Article 48; Case 2/74 Reyners [1974] ECR 631, concerning Article 52; Case 33/74 Van Binsbergen [1974] ECR 1299, concerning Article 59; and Case 57/65 Lütticke [1966] ECR 205, concerning Article 95.
(11) - Case C-312/91 Metalsa [1993] ECR I-3751, paragraphs 11 and 12.
(12) - Case 17/81 Pabst & Richarz [1982] ECR 1331, paragraphs 25 to 27. The Court inferred from the wording of Article 53(1) of the EEC-Greece Agreement, the terms of which are similar to those of Article 95 of the Treaty, and from the subject-matter and nature of the agreement in question that the provision at issue performed within the scope of that association a function (prohibition of discriminatory internal taxation) identical to that of Article 95.
(13) - See the Opinion of Advocate General Darmon of 15 May 1990 in Case C-192/89 Sevince [1990] ECR I-3473, points 22 to 29. According to the Advocate General, `the significant differences between the two agreements, as regards matters of principle, appear to reside above all in the speed at which the objectives pursued are to be attained' (ibid., paragraph 24).
(14) - Cited above, footnote 5, paragraph 16.
(15) - Ibid., paragraphs 18 to 23.
(16) - See the Opinion of Advocate General Darmon of 15 May 1990 (cited in note 13, above), points 27 to 29.
(17) - See, among many instances, Article 37 of the Additional Protocol (cited above, paragraph 3).
(18) - See, among many others, Case C-469/93 Chiquita Italia [1995] ECR I-4533, paragraph 34, concerning the Fourth ACP-EEC Convention, which (in the same way as the earlier ones and the association agreement between the EEC and the African and Maligasi States) is characterised by an extremely clear imbalance between the commitments assumed by the contracting parties; that imbalance, according to the Court is, however, a logical part of the specific nature of the Convention in question.
(19) - See Case C-18/90 Kziber [1991] ECR I-199, paragraphs 15 to 23; Case C-58/93 Yousfi [1994] ECR I-1353, paragraphs 16 to 19, and Case C-126/95 Hallouzi-Choho [1996] ECR I-4807, paragraphs 17 to 20. The relevant provision of the cooperation agreement between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 26 April 1976 and approved on behalf of the Community by Council Regulation (EEC) No 2211/78 of 26 September 1978 (OJ 1978 L 264, p. 1), is Article 14(1), appearing in Title III to the Agreement (concerning cooperation regarding labour). Article 41(1) of the EEC-Morocco Agreement provides that `Subject to the provisions of the following paragraphs [concerning the aggregation of periods of insurance, employment and residence in the various Member States, entitlement to family benefits for family members residing within the Community and the transfer of pensions and income to Morocco] workers of Moroccan nationality and any members of their families living with them shall enjoy, in the field of social security, treatment free from any discrimination based on nationality in relation to nationals of the Member States in which they are employed'. It should be noted that the Court arrived at the conclusion that Article 41(1) had direct effect, notwithstanding the fact that Article 42(1) confers on the competent Cooperation Council the power of adopting provisions to apply Article 41, in order to facilitate observance of the principle of equal treatment with regard to particular aspects of its application. The Court observed in that regard that the role which Article 42(1) confers on the Cooperation Council consists `in facilitating compliance with the prohibition of discrimination and, if necessary, in adopting the measures required for the implementation of the principle of aggregation embodied in paragraph 2 of Article 41 but it may not be regarded as rendering conditional the immediate application of the principle of non-discrimination' (see Case C-18/90, cited above, paragraph 19). Finally, the Court observed that the objective of the EEC-Morocco Agreement, namely promotion of overall cooperation between the contracting parties, in particular in the field of labour, is not such as to contradict the finding that the principle of non-discrimination embodied in Article 41(1) can directly govern the legal situation of individuals (ibid., paragraphs 20 to 22).
(20) - See Case C-103/94 Krid [1995] ECR I-719, paragraphs 21 to 24, and Case C-113/97 Babahenini [1998] ECR I-183, paragraphs 17 and 18, concerning Article 39(1) of the Cooperation Agreement between the European Economic Community and the Popular Democratic Republic of Algeria, signed in Algeria on 26 April 1976 and approved on behalf of the Community by Council Regulation (EEC) No 2210/78 of 26 September 1978 (OJ 1978 L 263, p. 1). The provision in question is worded similarly to Article 41(1) of the EEC Cooperation Agreement and the two agreements pursue similar objectives (see footnote 19 above).
(21) - Opinion of Advocate General Van Gerven of 6 December 1990 in Case C-18/90 Kziber [1990] ECR I-208, point 8.
(22) - Although the legal basis is the same (Article 238 of the Treaty), the purpose of cooperation agreements is different from and more limited than that of agreements providing for an association with or future accession to the Community by the non-member country concerned. For example, the abovementioned EEC-Algeria and EEC-Morocco agreements (see footnotes 19 and 20 above) are intended simply to `promote overall cooperation between the Contracting Parties with a view to contributing to the economic and social development of [the non-member country] and helping to strengthen relations between the Parties' (see Article 1 of the EEC-Algeria agreement and Article 1 of the EEC-Morocco agreement), providing to that end for the adoption of provisions and the taking of action in the sectors of economic, financial and technical cooperation, trade and labour.
(23) - Case 12/86 (cited in footnote 5), paragraph 9.
(24) - See Case C-277/94 Taflan-Met and Others [1996] ECR I-4085, paragraph 21.
(25) - See, amongst many, Case C-27/91 Le Manoir [1991] ECR I-5531, paragraph 7, and Case C-357/89 Raulin [1992] ECR I-1027, paragraphs 10 to 13.
(26) - See footnote 30 below and the relevant part of the text.
(27) - See the Opinion delivered on 12 July 1994 in Case C-355/93 Eroglu [1994] ECR I-5116, points 23 to 25).
(28) - Ibid., points 26 to 30. In that case, therefore, the Advocate General stated that free access to the labour market for Turkish citizens - although subject to the conditions (concerning duration of first employment or residence, or priority of recruitment for Community workers) laid down by Decision No 1/80 of 19 September 1980 of the EEC-Turkey Association Council on the development of the Association (hereinafter `Decision No 1/80') - is not limited by a restrictive definition of the concept of worker which excludes workers undergoing theoretical or practical training.
(29) - V.S. O'Leary, `Employment and Residence for Turkish Workers and Their Families: Analogies with the case-law of the Court of Justice on Article 48 EC', in Scritti in onore di Giuseppe Federico Mancini, Milan 1998, Vol. II, page 731, in particular at page 760; and S. Peers, `Towards Equality: Actual and Potential Rights of Third-Country nationals in the European Union' Common Market Law Review, 1996, page 7, in particular at page 21.
(30) - See, amongst many, Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781, paragraph 25.
(31) - See Case C-36/96 Günaydin v Freistaat Bayern [1997] ECR I-5143, paragraphs 23, 28 and 31, and Case C-98/96 Ertanir v Land Hessen [1997] ECR I-5179, paragraphs 23, 38 and 43).
(32) - See Case C-36/96, paragraph 35, and Case C-98/96, paragraph 45, both cited in footnote 31 above.
(33) - Case C-351/95 Kadiman v Freistaat Bayern [1997] ECR I-2133, paragraphs 34 and 35.
(34) - Official Journal, English Special Edition, 1968 (II) p. 475. Under Article 10, the members of a worker's family are: his spouse and their descendants who are under the age of 21 years or are dependants, ascendants (including those of the spouse) who are dependants, and any other family member living under his roof in the country from which he comes.
(35) - See footnote 37 below and the relevant part of the text. See Peers (op. cit. footnote 29), p. 25.
(36) - See, amongst many, Case C-116/94 Meyers v Adjudication Officer [1995] ECR I-2131, paragraph 24, in which the Court held that a benefit necessarily linked to an employment relationship which is granted to supplement the financial resources of low-paid workers who take on the burden of looking after a child, such as the family credit provided for by English law, constitutes a working condition within the meaning of Article 5 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. See also Case 152/73 Sotgiu [1974] ECR 153, which interpreted Article 7 of Regulation No 1612/68 as including within the concept of `conditions of employment' a separation allowance representing flat-rate supplementary remuneration intended to compensate for all costs incurred by a worker through having two residences, one for family purposes and one for professional purposes.
(37) - See paragraph 25 (cited in footnote 19 above). See also Case C-58/95 (cited in footnote 19 above), paragraph 24, and Case C-103/94 (cited in footnote 20 above), paragraph 32.
(38) - To simplify matters, I shall not examine the question whether a person in the position of Mrs Sürül (or her husband) may be covered by the term `worker' used in the sphere of social security, where such a person, regardless of the existence of an employment relationship applies for insurance, even if against only one risk, by virtue of compulsory or voluntary insurance with a general or special social security scheme of the kind mentioned in Article 1(a) of Regulation No 1408/71 (see most recently the judgment in Case C-85/96 - cited above in footnote 8 - paragraphs 31 and 36).
(39) - Case 41/84 Pinna v Caisse d'Allocations Familiales de la Savoie [1986] ECR 1, paragraph 23. See also, among many others, Case 152/73 (cited above, footnote 36), Case 61/77 Commission v Ireland [1978] ECR 417, Case C-279/93 Schumacker [1995] ECR I-225, Case C-237/94 O'Flynn [1996] ECR I-2617, and Case C-35/97 Commission v France [1998] ECR I-5325, paragraph 37).
(40) - See Case C-85/96 (cited in footnote 8 above).
(41) - According to the case-law of the Court, moreover, any unfavourable financial consequences to which the Member State concerned might theoretically be exposed as a result of having infringed the provision of Community law on which the Court is giving a preliminary ruling are not in themselves capable of justifying limiting the temporal effects of the judgment. According to the Court, limiting the effects of a judgment by reference only to considerations of that kind would lead to substantial curtailment of the judicial protection of rights derived by individuals from Community law (see amongst many Case C-35/97 (cited in footnote 39 above), paragraph 52. See also Case C-200/90 Dansk Denkavit and Poulsen Trading [1992] ECR I-2217, paragraphs 20 to 23; Joined Cases C-367/93 to C-377/93 Roders and Others [1995] ECR I-2229, paragraph 48, and Joined Cases C-197/94 and C-252/94 Bautiaa and Société Française Maritime [1996] ECR I-505, paragraph 55).
(42) - See, mutatis mutandis, Case C-216/95 (cited above in footnote 19), paragraphs 41 to 45, concerning Article 41(1) of the EEC-Morocco agreement. See also, as regards not limiting the temporal effects of a judgment interpreting Article 7 (now 6) of the Treaty, Case 293/80 Gravier [1985] ECR 593 and Case 309/85 Barra [1988] ECR 355, paragraphs 9 to 15; and also, regarding non-limitation of the temporal effects of a preliminary ruling concerning the principle of non-discrimination laid down in Article 48 of the Treaty and Article 7 of Regulation No 1612/68, Case C-35/97 (cited in footnote 39 above), paragraph 51.
(43) - The Court referred in the terms used in the text to the preconditions for limiting the temporal effects of its preliminary rulings in, among others, the judgment in Roders cited above (see footnote 41), paragraphs 42 and 43.
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