WRITTEN QUESTION E-1794/96 by Richard Balfe (PSE) to the Council (5 July 1996)

Subject: 1963 EEC-Turkey Association Agreement - Austria

Last May, Austria's highest court in administrative matters, the 'VwGH', made public two rulings which it had handed down earlier, in January and February 1996 respectively, which support the view that provisions decided by the Association Council set up under the 1963 EEC-Turkey Association Agreement, in particular Decision No 1/80 and Decision No 3/80, have a direct effect in Austria since the day of its accession to the European Union (see Migration News Sheet, June 1996). The Austrian Ministry of Foreign Affairs apparently holds this view as well, but not the Austrian Ministry of the Interior. Referring to the opinion of the service on constitutional matters of the Federal Chancellery, the latter argues that the aforementioned Decisions will come into force in Austria only after Vienna has signed and ratified the protocol to be appended to the Association Agreement between the Community and Turkey to take account of the accession of Austria.

1. What is the Council's view on this matter as to whether or not ratification is necessary before these Decisions can have direct legal effect in a Member State?

2. Does it hold the view that these Decisions are part of the 'acquis communautaire' and therefore apply to EVERY Member State, new and old, regardless of whether it has ratified the said protocol?

3. If such an issue can be decided in a definitive and binding way only by the European Court of Justice (ECJ), is the Council, acting on its own initiative, competent to request the ECJ to give its preliminary ruling on it? If yes, does the Council intend to do so, and if not, why?

Answer (13 February 1997)

Those international agreements concluded by the Community which are still current, together with the decisions taken by the bodies set up under those agreements, as in the case of EC-Turkey Association Council Decisions Nos 1/80 and 3/80, form an integral part of the Community legal order. They may, where appropriate, be directly applicable in a Member State. The Court of Justice has evoked this principle on a number of occasions, such as in the Demirel ((Judgment of 30 September 1987 in Case 12/86, ECR 3719. )) and Sevince ((Judgment of 20 September 1990 in Case C-192/89, ECR I-3451. )) judgments. As regards Decision No 3/80, however, reference should be made to the judgment handed down by the European Court of Justice on 10 September 1996 in Case C-277/94.

Accession negotiations are based on the prinicple that newly acceding States will take over the acquis communautaire in its entirety.

Article 5 of the Act of Accession stipulates that the agreements concluded by any of the Communities with a third State are under the conditions laid down in the original Treaties and in that Act, binding on the new Member States. In addition, the new Member States undertake to accede to the agreements concluded by the present Member States and any of the Communities, acting jointly.

Under Articles 76 and 77 of the Act of Accession, moreover, as from 1 January 1995 Austria is to apply the provisions of the agreements concluded with a number of third countries, including Turkey.

The obligations incumbent upon Austria as regards the Association Agreement with Turkey pursuant to the Act of Accession are without prejudice to any adjustments to that Agreement subsequently negotiated and concluded with Turkey to take account of Austria's accession. Those adjustments may be the subject of an additional protocol as stipulated in Article 76 of the Act of Accession.

As to the possibility of referring the matter to the Court of Justice, the course referred to by the Honourable Member is not one of those provided for in the Treaty.