Opinion of the Advocate General — ECLI:EU:C:1998:610
Date: 1998-12-17
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. International agreements — Agreements concluded by the Community — Direct effect — 
Conditions — Decision No 3/80 of the Council of Association, set up under the EEC-Turkey 
Association Agreement, on social security for migrant workers — Principle of non-discrimination 
on grounds of nationality 
(Decision No 3/80 of the EEC-Turkey Council of Association, Art. 3(1)) 
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SUMMARY — CASE C-262/96 
2. International agreements — EEC-Turkey Association Agreement — Social security for migrant 
workers — 'Worker' — Meaning for the purposes of Decision No 3/80 of the Council of Asso­
ciation 
(Decision No 3/80 of the EEC-Turkey Council of Association, Art. 1) 
3. International agreements — EEC-Turkey Association Agreement — Sodai security for migrant 
workers — Family allowances — Entitlement subject to residence authorisation requirements 
not applied to own nationals — Discrimination on grounds of nationality — Not permissible 
(Decision No 3/80 of the EEC-Turkey Association Agreement, Art. 3(1)) 
4. Preliminary rulings — Interpretation — Temporal effects of judgments ruling on interpreta­
tion — Retroactive effect — Limits — Legal certainty — Power of assessment of the Court 
(EC Treaty, Art. 177 (now Art. 234 EC)) 
1. In common with provisions of agreements 
concluded by the Community with non-
member countries, a provision adopted by 
an association council set up under an 
association agreement to implement the 
provisions thereof must be regarded as 
being directly applicable when, regard 
being had to its wording and the purpose 
and nature of the agreement itself, the 
provision contains a clear and precise obli­
gation which is not subject, in its imple­
mentation or effects, to the adoption of 
any subsequent measure. 
Those conditions are not satisfied by cer­
tain provisions of Decision N o 3/80 of the 
EEC-Turkey Council of Association on 
the application of the social security 
schemes of the Member States to Turkish 
workers and members of their families, 
the implementation of which requires addi­
tional measures. The position is different, 
however, with respect to Article 3(1) of 
that Decision, which lays down the rule 
assimilating persons who are covered by 
the Decision and reside in the host Member 
State to nationals of that State, by prohib­
iting any discrimination based on nation­
ality and resulting from the legislation of 
that Member State. Indeed, Article 3(1) of 
Decision N o 3/80 establishes, in the area 
in which that decision applies, a precise 
and unconditional principle capable of 
being applied by a national court and, 
therefore, of governing the legal situation 
of individuals. The direct effect which must 
therefore be accorded to that provision 
means that the persons to whom it applies 
are entitled to rely on it before the courts 
of the Member States. 
2. A person has the status of 'worker' — 
within the meaning given in Article 1(b) 
of Decision N o 3/80 of the EEC-Turkey 
Council of Association on the application 
of the social security schemes of the 
Member States to Turkish workers and 
members of their families — where he is 
covered, even if only in respect of a single 
risk, compulsorily or on an optional basis, 
by a general or special social security 
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SÜRÜL v BUNDESANSTALT FÜR ARBEIT 
scheme referred to in that provision, ir­
respective of the existence of an em­
ployment relationship. That condition is 
satisfied where the person is covered 
by statutory pension insurance or by 
statutory insurance against accidents at 
work. 
3. On a proper construction of Article 3(1) 
of Decision No 3/80 of the EEC-Turkey 
Council of Association on the application 
of the social security schemes of the 
Member States to Turkish workers and 
members of their families, a Member State 
may not require of a Turkish national cov­
ered by that Decision whom it has autho­
rised to reside in its territory, but who 
holds in that host State only a conditional 
residence authorisation issued for a speci­
fied 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 resi­
dent there. 
First, the legislation of the host Member 
State cannot impose upon Turkish nationals 
covered by that Decision conditions addi­
tional to or more stringent than those 
applicable to its own nationals. Secondly, 
the requirement that a person possess a 
residence entitlement or a residence permit 
in order to qualify for family allowances 
is not applicable to nationals of the host 
State and thus by its nature covers aliens 
only. Its application therefore leads to 
unequal treatment on grounds of nation­
ality. 
4. The interpretation which, in the exercise 
of the jurisdiction conferred on it by 
Article 177 of the Treaty (now Article 234 
EC), the Court gives to a rule of Com­
munity law clarifies and defines where 
necessary the meaning and scope of that 
rule as it must be or ought to have been 
understood and applied from the time of 
its entry into force. It follows that the rule 
so interpreted may, and must, be applied 
by the courts even to legal relationships 
which arose and were established before 
the judgment ruling on the request for 
interpretation, provided that in other 
respects the conditions for bringing a dis­
pute relating to the application of that rule 
before the competent courts are satisfied. 
It is only exceptionally that, in application 
of a general principle of legal certainty 
which is inherent in the Community legal 
order, the Court may decide to restrict the 
right of interested parties to rely upon a 
provision which it has interpreted, with a 
view to calling in question legal relations 
established in good faith. Such a restric­
tion may be allowed only in the actual 
judgment ruling upon the interpretation 
sought. 
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SUMMARY — CASE C-262/96 
Since this is the first time that the Court 
has been called on to rule on the direct 
effect of Article 3(1) of Decision N o 3/80 
of the EEC-Turkey Council of Associa­
tion on the application of the social secu­
rity schemes of the Member States to 
Turkish workers and members of their 
families — which lays down the principle 
of non-discrimination on grounds of 
nationality — and since the Court's earlier 
case-law on the direct effect of that Deci­
sion may well have created a situation of 
uncertainty as to the right of individuals 
to rely on that provision before the national 
courts, pressing considerations of legal cer­
tainty preclude any reopening of the ques­
tion of legal relationships which have been 
definitively determined before the delivery 
of the judgment confirming that Article 
3(1) has direct effect, where that would 
retroactively throw the financing of the 
social security systems of the Member 
States into confusion. 
It must therefore be held that the direct 
effect of Article 3(1) of Decision N o 3/80 
may not be relied on in support of claims 
relating to benefits in respect of periods 
prior to the date of that judgment except 
as regards those persons who, before that 
date, initiated proceedings or made an 
equivalent claim. 
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