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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Sueruel (External relations) [1999] EUECJ C-262/96 (04 May 1999) URL: http://www.bailii.org/eu/cases/EUECJ/1999/C26296.html Cite as: [1999] EUECJ C-262/96 |
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JUDGMENT OF THE COURT
4 May 1999 (1)
(EEC-Turkey Association Agreement - Decision of the Association Council - Social Security - Principle of non-discrimination on grounds of nationality - Direct effect - Turkish national authorised to reside in a Member State - Entitlement to family allowances under the same conditions as nationals of that State)
In Case C-262/96,
REFERENCE to the Court under Article 234 EC (ex Article 177) by the Sozialgericht Aachen (Germany) for a preliminary ruling in the proceedings pending before that court between
Sema Sürül
and
Bundesanstalt für Arbeit,
on the interpretation of certain provisions of Decision No 3/80 of the Association Council of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families (OJ 1983 C 110, p. 60),
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, G. Hirsch and P. Jann (Presidents of Chambers), J.C. Moitinho de Almeida, C. Gulmann, J.L. Murray, D.A.O. Edward, H. Ragnemalm, L. Sevón and R. Schintgen (Rapporteur), Judges,
Advocate General: A. La Pergola,
Registrar: H. von Holstein, Deputy Registrar,
after considering the written observations submitted on behalf of:
- Sema Sürül, by Rainer M. Hofmann, Rechtsanwälte, Aachen,
- the German Government, by Ernst Röder, Ministerialrat in the Federal Ministry of Economic Affairs, and Bernd Kloke, Oberregierungsrat in the same Ministry, acting as Agents,
- the French Government, by Catherine de Salins, Head of Subdirectorate in the Legal Affairs Directorate of the Ministry of Foreign Affairs, and Anne de Bourgoing, chargé de mission with the same Directorate, acting as Agents,
- the Austrian Government, by Wolf Okresek, Ministerialrat in the Federal Chancellor's Office, acting as Agent,
- the United Kingdom Government, by John E. Collins, Assistant Treasury Solicitor, acting as Agent, assisted by Eleanor Sharpston, Barrister,
- the Commission of the European Communities, by Peter Hillenkamp, Legal Adviser, and Pieter van Nuffel, of its Legal Service, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Mrs Sürül, represented by Rainer M. Hofmann; the German Government, represented by Claus-Dieter Quassowski, Regierungsdirektor in the Federal Ministry of Economic Affairs, acting as Agent; the French Government, represented by Kareen Rispal-Bellanger, Head of Subdirectorate in the Legal Affairs Directorate in the Ministry of Foreign Affairs, acting as Agent; the Netherlands Government, represented by Marc Fierstra, Assistant Legal Adviser in the Ministry of Foreign Affairs, acting as Agent; the United Kingdom Government, represented by Eleanor Sharpston; and the Commission, represented by Peter Hillenkamp, at the hearing on 25 November 1997,
after hearing the Opinion of the Advocate General at the sitting on 12 February 1998,
having regard to the order of 23 September 1998 re-opening the oral procedure,
having regard to the Report for the Hearing,
after hearing the oral observations of Mrs Sürül, represented by Rainer M. Hofmann; the German Government, represented by Claus-Dieter Quassowski; the French Government, represented by Anne de Bourgoing; the Netherlands Government, represented by Mark Fierstra; the United Kingdom Government, represented by John E. Collins, assisted by Mark Hoskins, Barrister; and the Commission, represented by Peter Hillenkamp, at the hearing on 11 November 1988,
after hearing the Opinion of the Advocate General at the sitting on 17 December 1998,
gives the following
The association between the EEC and Turkey
To that end, the Agreement provides for a preparatory stage enabling the Republic of Turkey to strengthen its economy with aid from the Community (Article 3), a transitional stage in which a customs union will be progressively established and economic policies will be aligned (Article 4) and a final stage based on the customs union, entailing closer coordination of economic policies (Article 5).
'To ensure the implementation and the progressive development of the Association, the Contracting Parties shall meet in a Council of Association which shall act within the powers conferred on it by this Agreement.'
'In order to attain the objectives set out in Article 4, the Council of Association shall, before the beginning of the transitional stage and in accordance with the procedure laid down in Article 1 of the provisional Protocol, 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 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 of the Treaty establishing the Community.'
'The Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers between them.'
'In order to attain the objectives of this Agreement the Council of Association shall have the power to take decisions in the cases provided for therein. Each of the parties shall take the measures necessary to implement the decisions taken. ...'
hereinafter 'the Protocol') lays down the conditions, arrangements and timetables for implementing the transitional stage referred to in Article 4 of the Agreement. By virtue of Article 62 thereof, the Protocol forms an integral part of the Agreement.
'1. Before the end of the first year after the entry into force of this Protocol 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.
2. These provisions must enable workers of Turkish nationality, in accordance with arrangements to be laid down, to aggregate periods of insurance or employment completed in individual Member States in respect of old-age pensions, death benefits and invalidity pensions, and also as regards the provision of health services for workers and their families residing in the Community. These measures shall create no obligation on Member States to take into account periods completed in Turkey.
3. The abovementioned measures must ensure that family allowances are paid if a worker's family resides in the Community.
...'
persons and to members of their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416) and, less frequently, to Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ, English Special Edition 1972 (I), p. 159).
'For the purposes of this Decision:
(a) the terms ... "member of family", "survivor", "residence" ... "family benefits", "family allowances" ... have the meaning assigned to them in Article 1 of ... Regulation (EEC) No 1408/71 ...
(b) "worker" means:
(i) subject to the restriction set out in Annex V, A. BELGIUM (1), to Regulation (EEC) No 1408/71, any person who is insured, compulsorily or on an optional continued basis, against one or more of the contingencies covered by the branches of a social security scheme for employed persons,
(ii) any person who is compulsorily insured against one or more of the contingencies covered by the branches of social security dealt with in this Decision under a social security scheme for all residents or for the whole working population, if such a person:
- can be identified as an employed person by virtue of the manner in which that scheme is administered or financed, or
- failing such criteria, is insured against some other contingency specified in the Annex under a scheme for employed persons, either compulsorily or on an optional continued basis;
...'
'This decision shall apply:
- to workers who are, or have been, subject to the legislation of one or more Member States and who are Turkish nationals,
- to the members of the families of these workers, resident in the territory of one of the Member States,
- to the survivors of these workers.'
'Subject to the special provisions of this Decision, persons resident in the territory of one 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.'
'This Decision shall apply to all legislation concerning the following branches of social security:
(a) sickness and maternity benefits;
(b) invalidity benefits, including those intended for the maintenance or improvement of earning capacity;
(c) old-age benefits;
(d) survivors' benefits;
(e) benefits in respect of accidents at work and occupational diseases;
(f) death grants;
(g) unemployment benefits;
(h) family benefits.'
'Turkey and the Community shall, each to the extent to which they are concerned, take the necessary steps to implement this Decision'.
The national legislation
(Aufenthaltserlaubnis) confer on the alien concerned an individual right of residence which is unlimited or else of specified duration but capable of extension. On the other hand, the accessory residence authorisation (Aufenthaltsbewilligung) is a residence document issued for a specific purpose and for a limited period, thereby precluding the holder from subsequently acquiring a permanent authorisation.
The dispute in the main proceedings
refused, on the same grounds, to continue payment of the supplementary family allowance to Mrs Sürül.
The questions submitted
'1. Does a Turkish national living in Germany who comes within the personal scope of Article 2 of Decision No 3/80 of 19 September 1980 of the Association Council set up pursuant to the Agreement establishing an Association between the European Economic Community and Turkey ("Decision No 3/80"), and who possesses merely an Aufenthaltsbewilligung, have a right, deriving directly from Article 3 in conjunction with Article 4(1)(h) of Decision No 3/80, to German child benefit, that right being one which is conditional solely on fulfilment of the conditions applying with regard to German nationals and not on fulfilment of the further conditions applying to aliens which are laid down in the first sentence of Article 1(3) of the Bundeskindergeldgesetz ("BKGG") in the version thereof published in the Official Notice of 31 January 1994 (BGBl. I, p. 168)?
Or, to phrase that question in more general terms:
Is a Member State prohibited from refusing a Turkish national who comes within the personal scope of Article 2 of Decision No 3/80 family benefits provided for under its law on the ground that that person does not possess an Aufenthaltsberechtigung or an Aufenthaltserlaubnis?
2. Is a Turkish national residing in the territory of a Member State a worker within the meaning of Article 2 in conjunction with Article 1(b) of Decision
No 3/80 during periods when, pursuant to the law of that State, compulsory contributions to the social security pension scheme are deemed, in favour of that person, to have been paid in respect of time spent in bringing up a child?
3. Is a Turkish national residing in the territory of a Member State who, in addition to following a course of studies, is employed there on the basis of a corresponding work permit for up to 16 hours per week as an auxiliary worker to be regarded on that ground alone as a worker within the meaning of Article 2 in conjunction with Article 1(b) of Decision No 3/80, or in any event because that person is insured under a statutory accident insurance scheme against accidents at work?'
The direct effect of Article 3(1) of Decision No 3/80
applicable legislation, appear only in the proposal for a Council (EEC) Regulation implementing within the European Economic Community Decision No 3/80 submitted by the Commission on 8 February 1983, which has not yet been adopted by the Council. It concluded that, until adoption of those implementing measures, the coordinating rules in Decision No 3/80 on which the plaintiffs had based their claims could not be relied on by them directly before the national courts of a Member State.
regard being had to its wording and to the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure (see, in particular, Case 12/86 Demirel [1987] ECR 3719, paragraph 14; Case C-18/90 Kziber [1991] ECR I-199, paragraph 15, and Case C-162/96 Racke [1998] ECR I-3655, paragraph 31). In Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461, paragraphs 14 and 15, the Court made it clear that the same conditions apply in determining whether the provisions of a decision of the EEC-Turkey Association Council may have direct effect.
The scope of Article 3(1) of Decision No 3/80
person who has the status of a person insured under the social security legislation of one or more Member States, whether or not he pursues a professional or trade activity (see Case 182/78 Algemeen Ziekenfonds Drenthe-Plattenland v Pierik [1979] ECR 1977, paragraph 4). That expression means any person who is insured under one of the social security schemes mentioned in Article 1(a) of Regulation No 1408/71 for the contingencies and under the conditions mentioned in that provision (see Case C-2/89 Kits van Heijningen [1990] ECR I-1755, paragraph 9).
'If the competent institution for granting family benefits in accordance with Chapter 7 of Title III of the Regulation is a German institution, then within the meaning of Article 1(a)(ii) of the Regulation:
(a) "employed person" means any person compulsorily insured against unemployment or any person who, as a result of such insurance, obtains cash benefits under sickness insurance or comparable benefits;
...'
Mr and Mrs Sürül reside with their child and in which the plaintiff in the main proceedings claims family allowances under the legislation of that State (see paragraphs 55 and 58 of this judgment).
The scope of the principle of non-discrimination laid down in Article 3(1) of Decision No 3/80
The temporal effects of this judgment
Costs
114. The costs incurred by the German, French, Netherlands, Austrian and United Kingdom Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT,
in answer to the questions referred to it by the Sozialgericht Aachen by order of 24 July 1996, hereby rules:
1. On a proper construction of Article 3(1) of Decision No 3/80 of the Association Council of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families, a Member State may not require of a Turkish national covered by that decision whom it has authorised to reside in its territory, but who holds in that host State only a conditional residence authorisation issued for a specified purpose and for a limited duration, that, in order to receive family allowances for his child who resides with him in that Member State, he must be in possession of a residence entitlement or a residence permit, whereas for that purpose nationals of that State are required only to be resident there.
2. The direct effect of Article 3(1) of Decision No 3/80 may not be relied on in support of claims relating to benefits in respect of periods prior to the date of this judgment except as regards those persons who, before that date, initiated proceedings or made an equivalent claim.
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Rodríguez Puissochet Hirsch Jann
Mointinho de Almeida Gulmann Murray Edward
Ragnemalm
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Delivered in open court in Luxembourg on 4 May 1999.
R. Grass G.C. Rodríguez Iglesias
Registrar President
1: Language of the case: German.
