Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union within the Association Council set up by the Agreement establishing an association between the European Economic Community and Turkey with regard to the provisions on the coordination of social security systems
Date: 2012-03-30
Institutions: European Commission
Subjects: Türkiye, administrative check, equal treatment, social security legislation, social-security harmonisation

EUROPEAN COMMISSION 

Brussels, 30.3.2012  
COM(2012) 152 final 

2012/0076 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union within the Association 
Council set up by the Agreement establishing an association between the European 
Economic Community and Turkey with regard to the provisions on the coordination of 
social security systems 

 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

It follows from Article 12 of the Agreement establishing an association between the European 
Economic  Community  and  Turkey1  ("the  Ankara  Agreement")  and  Article  36  of  the 
Additional  Protocol  to  the  Ankara  Agreement2  ("the  Additional  Protocol")  that  freedom  of 
movement for workers between the Union and Turkey is to be secured by progressive stages. 
Article  9  of  the  Ankara  Agreement  provides  that  within  the  scope  of  the  Agreement  any 
discrimination  on  grounds  of  nationality  shall  be  prohibited.  Article  39  of  the  Additional 
Protocol  lays  down  that  the  Association  Council  shall  adopt  social  security  measures  for 
workers of Turkish nationality moving within the Union and for their families residing in the 
Union, and lists some coordination principles which those measures should implement. 

As a first step towards the implementation of these social security coordination principles in 
the  Ankara  Agreement  and  its  Additional  Protocol,  Decision  No  3/80  of  the  Association 
Council  on  the  application  of  the  social  security  schemes  of  the  Member  States  of  the 
European Communities to Turkish workers and members of their families was adopted by the 
Association Council on 19 September 19803 ("Decision No 3/80"). The second step, namely 
the  adoption  of  a  Regulation  to  implement  the  provisions  of  Decision  No  3/80,  was  never 
taken. 4 

In  the  meantime,  the  Court  of  Justice  has  held  that  Article  3(1)  of  Decision  No  3/80,  the 
principle  of  non-discrimination,  and  Article  6  of  this  Decision,  the  requirement  to  waive 
residence clauses in respect of benefits payable under the Decision, have direct effect and can 
be relied upon before the national courts.5  

In  order  to  provide  legal  certainty  and  to  give  full  effect  to  the  principles  of  social  security 
coordination contained in the Ankara Agreement and its Additional Protocol, it is necessary 
that a new decision is adopted by the Association Council, to replace Decision No 3/80. The 
Commission's  previous  proposal  to  implement  Decision  No  3/80  will  be  withdrawn,  as  it  is 
envisaged  that  the  new  Association  Council  decision  will  implement  in  one  step  the 
obligations in the Agreement and its Protocol. 

General context 

The  provisions  of  the  Ankara  Agreement  and  the  Additional  Protocol  on  the  freedom  of 
movement of workers and the measures adopted to implement them, in particular Association 
Council Decision No 1/80, should be accompanied by appropriate social security coordination 
measures.  Moreover,  Article  39  of  the  Additional  Protocol  contains  explicit  provisions  for 

1 
2 
3 
4 

5 

OJ 217, 29.12.1964, p. 3687/64. 
OJ L293, 29.12.1972, p.3. 
OJ C110, 25.4.1983, p.60. 
The  Commission  presented  on  2.2.1983  a  proposal  for  a  regulation  to  implement  Decision  No  3/80, 
COM(83) 13 . 
ECJ, Case C-262/96, Sürül, Case C-485/07, Akdas. 

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coordination between the social security systems, which need to be implemented. A Decision 
of the Association Council is required to that effect. 

A number of other Association Agreements with third countries contain also provisions on the 
coordination of social security systems. This proposal is part of a package of proposals which 
includes similar proposals with regard to the Agreements with Albania, Montenegro and San 
Marino.  A  first  package  with  similar  proposals  in  respect  of  Algeria,  Morocco,  Tunisia, 
Croatia, the former Yugoslav Republic of Macedonia and Israel was adopted by the Council 
in October 2010.6 

In  order  to  establish  the  position  to  be  taken  by  the  Union  in  the  Association  Council,  a 
Council Decision is necessary.  

Existing provisions in the area of the proposal 

At the level of the European Union, Member States' social security systems are coordinated 
by Regulation (EC) No 883/20047 and its implementing Regulation (EC) No 987/20098.  

Council  Regulation  (EU)  No  1231/20109  extends  the  provisions  of  Regulation  (EC)  No 
883/2004  and  Regulation  (EC)  No  987/2009  to  nationals  of  third  countries  who  are  not 
already  covered  by  those  provisions  solely  on  the  grounds  of  their  nationality.  This 
Regulation  already  covers  the  principle  of  aggregation  of  insurance  periods  acquired  by 
Turkish workers in the various Member States regarding entitlement to certain benefits, as set 
out in Article 39 (2) of the Additional Protocol to the Agreement with Turkey.  

Consistency with other policies and objectives of the Union 

Turkey has been associated with the European integration project ever since the signature of 
the  Ankara  Association  Agreement  in  1963,  which  was  supplemented  in  1970  with  an 
Additional  Protocol.  These  agreements  provide  as  an  aim,  to  be  achieved  by  progressive 
stages,  the  free  movement  of  workers  between  Turkey  and  the  EU.  As  a  corollary  to  these 
provisions  that  set  out  a  programme,  Article  39  of  the  Additional  Protocol  lays  down 
provisions  on  social  security  coordination.  Full  implementation  of  these  provisions  will 
enhance  the  special  relationship  with  Turkey,  as  envisaged  in  Article  8  TEU.  At  the  same 
time, it will permit Turkey to align its policies on social security coordination with those of 
the EU in preparation for future accession to the EU. 

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

Consultation of interested parties 

6 
7 
8 
9 

OJ L306, 23.11.2010. 
OJ L 166, 30.4.2004, p. 1.  
OJ L 284, 30.10.2009, p. 1.  
OJ  L  344,  29.12.2010,  p.  1.  In  accordance  with  Protocols  Nos  21  and  22,  Denmark  and  the  United 
Kingdom are not bound by or subject to the application of Regulation (EU) No 1231/2010. However, 
the United Kingdom continues to be bound by and subject to the application of the previous Regulation 
(EC) No 859/2003, OJ L124, 20.5.2003, p.1.  

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This  proposal  for  coordination  of  the  social  security  systems  of  the  Member  States  and 
Turkey  will  replace  Decision  No  3/80.  The  proposal  is  modelled  almost  identically  on  the 
package of six draft Association Council Decisions, respectively Stabilisation and Association 
Council  Decisions,  in  respect  of  Algeria,  Morocco,  Tunisia,  Croatia,  the  former  Yugoslav 
Republic  of  Macedonia  and  Israel,  in  respect  of  which  the  European  Union  position  was 
decided by the Council in October 2010. Detailed negotiation took place in Council in 2010 
on the content of such decisions. These negotiations were preceded by an intensive discussion 
with  all  Member  States  in  the  Administrative  Commission  for  the  Coordination  of  Social 
Security Systems. 

Collection and use of expertise 

There was no need for external expertise. 

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Impact assessment 

Article  39  of  the  Additional  Protocol  to  the  Agreement  with  Turkey  contains  provisions  on 
coordination between the social security systems of Member States and Turkey. A number of 
other  agreements  with  third  countries  contain  also  provisions  on  the  coordination  of  social 
security  systems.  All  of  them  require  a  Decision  of  the  relevant  body  set  up  by  these 
agreements so that the principles, as set out in Article 39, can take effect. 

The  aim  of  the  provisions  on  social  security  in  such  agreements  is  that  a  worker  from  the 
associated country concerned can receive certain social security benefits provided under the 
legislation  of  the  Member  State(s)  to  which  he  is  or  has  been  subject.  This  also  applies,  by 
way of reciprocity, to an EU national working in the associated country. 

As  all  the  provisions  included  in  the  current  package  of  proposals  with  regard  to  the  four 
associated  countries  (Albania,  Montenegro,  San  Marino  and  Turkey)  are  almost  identical  – 
and also almost identical to the first package of six decisions in respect of Algeria, Morocco, 
Tunisia,  Croatia,  the  former  Yugoslav  Republic  of  Macedonia  and  Israel  adopted  by  the 
Council  in  2010,  this  will  facilitate  the  application  of  these  provisions  by  Member  States' 
social  security  institutions.  There  might  be  some  financial  implications  for  national  social 
security  institutions  resulting  from  the  application  of  these  proposals,  since  they  have  to 
provide,  for  example,  the  benefits  as  described  in  Article  39  of  the  Additional  Protocol. 
However, this Article only concerns persons who are or have been contributing to the national 
social security system of the country concerned, as provided for under its national legislation. 
In any case, it may be difficult to gauge the precise impact of these proposals on the national 
social security systems at this stage. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the proposed action 

This  proposal  consists  of  a  Council  Decision  on  the  position  to  be  taken  on  behalf  of  the 
Union within the Association Council established by the Agreement with Turkey and, in the 
Annex, of a draft Decision of the Association Council in the social security field. 

The  proposed  Association  Council  Decision  fulfils  the  requirement  of  Article  39  of  the 
Additional Protocol for such a Decision, in order to put in place the social security principles 
contained  therein.  The  Decision  contains  moreover  implementing  provisions  with  regard  to 
those provisions of Article 39 of the Additional Protocol to the Agreement with Turkey which 
are not already covered by Regulation (EU) No 1231/2010. In addition, specific provision is 
made – as was made in Decision No 3/80 - to implement Article 9 of the Agreement in the 
field of social security coordination.  

Moreover,  the  proposed  Decision  of  the  Association  Council  ensures  that  the  provisions  on 
the export of benefits and the granting of family benefits also apply, by way of reciprocity, to 
EU  workers  legally  employed  in  Turkey  and  to  their  family  members  legally  resident  in 
Turkey.  As  the  Association  Council  Decision  would  in  doing  so  go  beyond  the  scope  of 
Article 39 of the Additional Protocol, the draft Association Council Decision is also based on 
Article 22(3) of the Ankara Agreement.  

Legal basis 

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The Council Decision on the position to be taken in the Association Council should be based 
on  Article  218(9)  of  the  Treaty  on  the  Functioning  of  the  European  Union  (TFEU)  in 
conjunction with Article 48 TFEU. 

Indeed, the Ankara Agreement and the Additional Protocol provide for a legal situation which 
has  to  be  distinguished  from  the  legal  situation  set  by  the  other  relevant  Association 
Agreements with social security provisions, since – in contrast with these other agreements - 
the Ankara Agreement and the Additional Protocol clearly provide for the free movement of 
workers  as  a  goal  to  be  secured  in  progressive  stages.  In  this  context,  the  notion  of  free 
movement  of  workers  has  to  be  understood  in  the  same  way  as  in  the  relevant  Union 
provisions (cf. Article 12 of the Ankara Agreement).  

It is true that the free movement of workers between Turkey and the EU has not at all been 
achieved,  and  that  it  is  therefore  not  possible  to  describe  the  current  legal  situation  as  an 
extension of the internal market with respect to free movement of persons (as is the case for 
the  EEA  and  Switzerland).  Nevertheless,  in  view  of  the  different  perspective  set  by  the 
Association Agreement and the Additional Protocol, which aim at extending so far as possible 
to  Turkish  nationals  the  principles  laid  down  in  the  Union  provisions  on  free  movement  of 
workers10, the implementation of the social security provisions, which constitute a necessary 
corollary to the movement of workers, must in the same way find its legal basis in Article 48 
TFEU.  

Subsidiarity principle 

The  Additional  Protocol  provides  for  principles  on  coordination  of  social  security  systems 
which  have  to  be  applied  equally  by  all  Member  States.  The  implementation  of  these 
principles should therefore be submitted to uniform conditions, which can be better achieved 
at Union level.. 

Proportionality principle 

The proposal complies with the proportionality principle for the following reasons. 

Member  States  continue  to  have  exclusive  competence  in  determining,  organising  and 
financing their national social security systems. 

The proposal only organises the coordination of social security systems of Member States and 
Turkey  for  the  benefit  of  the  citizens  of  these  countries.  Moreover,  the  proposal  does  not 
affect any rights and obligations arising from bilateral social security agreements concluded 
between  the  Member  States  and  Turkey  where  the  latter  provide  for  more  favourable 
treatment of the persons concerned. 

The proposal minimises the financial and administrative burden for national authorities as it is 
part of a package of similar proposals which ensure a uniform application of social security 
provisions contained in Association Agreements with third countries. 

Choice of instruments 

10 

cf. ECJ, Case C-275/02, Ayaz, paragraphs 44-45, Case C-467/02, Cetinkaya, paragraphs 42-43. 

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Proposed  instruments:  Council  Decision  (containing  in  Annex  a  draft  Association  Council 
Decision). 

Other means would not be adequate for the following reasons. 

There is no alternative option to the proposed action. Article 39 of the Additional Protocol to 
the Agreement requires a Decision of the respective Association Council. Article 218 (9) of 
the Treaty provides for a Council Decision for the purpose of establishing the positions to be 
adopted on behalf of the Union in a body set up by an Agreement, when that body is called 
upon to adopt decisions having legal effects. 

4. 

BUDGETARY IMPLICATION  

The proposal has no implications for the Union budget. 

5. 

OPTIONAL ELEMENTS  

Simplification 

The  proposal  will  lead  to  simplification  of  administrative  procedures  for  national  public 
authorities, and simplification of administrative procedures for private parties. 

Detailed explanation of the proposal 

A.  Council  Decision  on  the  position  to  be  taken  on  behalf  of  the  Union  within  the 
Association Council created by the Association Agreement with Turkey with regard to 
the provisions on the coordination of social security systems. 

Article 1 

This  Article  provides  for  the  adoption  of  the  EU  position  in  the  EU  -  Turkey  Association 
Council. 

B. Annexed draft Decision of the Association Council with regard  to the  provisions on 
the coordination of the social security systems contained in the Agreement. 

Part I: General provisions 

Article 1 

This Article defines, for the purposes of the legislation of a Member State and for the purpose 
of  the  legislation  of  Turkey,  the  terms  "Agreement",  "Regulation",  "implementing 
Regulation", "Member State", "worker", "member of the family", "legislation", "benefits" and 
"exportable benefits", and refers to the Regulation and implementing Regulation for the other 
terms used in the annexed Decision. 

Article 2 

In  line  with  the  wording  of  Article  39  of  the  Additional  Protocol  to  the  Agreement  with 
Turkey, this Article defines the persons covered by the annexed Decision. 

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Article 3 

This  Article  provides  for  non-discriminatory  treatment  of  all  persons  covered  by  the 
Agreement with regard to the social security benefits covered by it. 

Part II 

Relations between the Member States and Turkey 

This  Part  of  the  annexed  Decision  covers  the  principles  contained  in  Article  39(4)  of  the 
Additional Protocol with Turkey as well as the reciprocity clause with regard to EU nationals 
and the members of their family. 

Article 4 

This  Article  contains  the  principle  of  the  export  of  cash  benefits  as  provided  for  in  Article 
39(4) of the Additional Protocol with Turkey and makes it clear that this principle is limited 
to  the  benefits  contained  in  Article  1(1)(i)  of  the  annexed  Decision  which  lists  the  benefits 
referred to in this paragraph. 

Part III 

Miscellaneous provisions 

Article 5 

This  Article  contains  general  provisions  for  cooperation  between  Member  States  and  their 
institutions,  of  the  one  part,  and  Turkey  and  its  institutions,  of  the  other  part,  as  well  as 
between the beneficiaries and the institutions concerned. These provisions are similar to those 
of Article 76 (3), (4), first and third sub-paragraphs, and (5) of Regulation (EC) No 883/2004. 

Article 6 

This  Article  lays  down  the  procedures  for  administrative  checks  and  medical  examinations 
similar  to  those  contained  in  Article  87  of  Regulation  (EC)  No  987/2009.  Moreover,  it 
provides for the possibility to adopt other implementing provisions in this area. 

Article 7 

This Article refers to the possiblity to use the conflict settlement procedure laid down in the 
Agreement. 

Article 8 

This  Article  refers  to  Annex  II  to  the  annexed  Decision  which  is  similar  to  Annex  XI  to 
Regulation  (EC)  No  883/2004,  and  which  is  necessary  in  order  to  lay  down  the  necessary 
special  provisions  for  the  application  of  Turkish  legislation  with  regard  to  the  annexed 
Decision. 

Article 9 

This  Article  allows  administrative  proedures  from  existing  agreements  between  a  Member 
State and Turkey to continue to apply under certain conditions. 

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Article 10 

This  Article  provides  for  the  possibility  to  conclude  supplementary  administrative 
Agreements. 

Article 11 

The  transitional  provisions  provided  for  under  this  Article  are  similar  to  the  transitional 
provisions in Article 87 (1), (3), (4), (6) and (7) of Regulation (EC) No 883/2004. In addition, 
there is a provision to protect the rights of Turkish workers who, as a result of the judgment of 
the  Court  of  Justice  in  Case  C-485/07  Akdas  concerning  the  direct  effect  of  Article  6(1)  of 
Decision  No  3/80,  are  prior  to  the  entry  into  force  of  the  Decision  being  provided  with  a 
pension or benefit by a Member State. 

Article 12 

This  Article  clarifies  the  legal  status  of  the  Annexes  to  the  annexed  Decision  and  the 
procedure for amending them. 

Article 13 

This Article clarifies the date of entry into force of the annexed Decision. 

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2012/0076 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union within the Association 
Council set up by the Agreement establishing an association between the European 
Economic Community and Turkey with regard to the provisions on the coordination of 
social security systems 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 48, in conjunction with Article 218(9), thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The  Agreement  establishing  an  association  between  the  European  Economic 
Community  and  Turkey1  ("the  Agreement")  and  the  Additional  Protocol  to  the 
Agreement  of  23  November  19702  ("the  Additional  Protocol")  provide  that  the 
freedom of movement for workers between the Union and Turkey is to be secured by 
progressive stages. 

Article  9  of  the  Agreement  provides  that  within  the  scope  of  the  Agreement  any 
discrimination on grounds of nationality shall be prohibited. 

Article 39 of the Additional Protocol provides that the Association Council shall adopt 
social  security  measures  for  workers  of  Turkish  nationality  moving  within  the 
Community and for their families residing in the Community.  

As a first step towards the implementation of Article 39 of the Additional Protocol and 
of Article 9 of the Agreement in the field of social security, Decision No 3/80 on the 
application  of  the  social  security  schemes  of  the  Member  States  of  the  European 
Communities  to  Turkish  workers  and  members  of  their  families  was  adopted  by  the 
Association Council on 19 September 19803 ("Decision No 3/80"). 

(5) 

It is necessary to ensure that in the field of social security Article 9 of the Agreement 
and Article 39 of the Additional Protocol are fully implemented. 

1 
2 
3 

OJ 217, 29.12.1964, p.3687/64. 
OJ L 293, 29.12.1972, p.3. 
OJ C110, 25.4.1983, p.60. 

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(6) 

(7) 

There is a need to update the content of Decision No 3/80 so that its provisions reflect 
developments in the field of European Union social security coordination4. 

Decision  No  3/80  should  therefore  be  repealed  and  replaced  with  a  decision  of  the 
Association Council that in one single step implements the relevant provisions of the 
Agreement  and  the  Additional  Protocol  regarding  the  coordination  of  social  security 
systems, 

HAS ADOPTED THIS DECISION:  

Article 1 

The position to be taken on behalf of the European Union within the Association Council set 
up by the Agreement establishing an association between the European Economic Community 
and Turkey, with regard to the provisions for the coordination of social security systems, shall 
be based on the draft decision of the Association Council attached to this Decision. 

Minor changes to the draft decision may be agreed to by the representatives of the Union in 
the Association Council without further decision of the Council. 

The  Decision  of  the  Association  Council  shall  be  published  in  the  Official  Journal  of  the 
European Union. 

Article 2 

Article 3 

This Decision shall enter into force on the day of its adoption.  

Done at Brussels,  

For the Council 
The President 

4 

Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the 
coordination of social security systems, OJ L166, 30.4.2004, p.1; Regulation (EC) No 987/2009 of the 
European  Parliament  and  of  the  Council  of  16  September  2009,  OJ  L284,  30.10.09,  p.1;  Regulation 
(EU)  No  1231/10  of  the  European  Parliament  and  of  the  Council  extending  Regulation  (EC)  No 
883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered 
by these Regulations solely on the ground of their nationality, OJ L344, 29.12.2010, p.1. 

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ANNEX 

Draft 

DECISION No.../…. OF THE EU - TURKEY ASSOCIATION COUNCIL 

of ... 

with regard to the provisions on the coordination of social security systems 

THE ASSOCIATION COUNCIL, 

Having regard to the Agreement establishing an association between the European Economic 
Community and Turkey1, and in particular Article 22(3) thereof, 

Having regard to the Additional Protocol of 23 November 19702, and in particular Article 39 
thereof, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

The  Agreement  establishing  an  association  between  the  European  Economic 
Community  and  Turkey  ("the  Agreement")  and  the  Additional  Protocol  to  the 
Agreement of 23 November 1970 ("the Additional Protocol") provide that freedom of 
movement for workers between the Union and Turkey is to be secured by progressive 
stages. 

Article  9  of  the  Agreement  provides  that  within  the  scope  of  the  Agreement  any 
discrimination on grounds of nationality shall be prohibited. 

Article  39  of  the  Additional  Protocol  provides  for  the  coordination  of  the  social 
security  systems  of  Turkey  and  the  Member  States  and  lays  down  the  principles  for 
such coordination. 

Article 39 of the Additional Protocol provides that the Association Council shall adopt 
social  security  measures  for  workers  of  Turkish  nationality  moving  within  the 
Community and for their families residing in the Community.  

As  a  first  step  towards  the  implementation  of  Article  39  of  the  Additional  Protocol, 
Decision No 3/80 of the Association Council on the application of the social security 
schemes of the Member States of the European Communities to Turkish workers and 
members of their families was adopted by the Association Council on 19 September 
19803 ("Decision No 3/80").  

(6) 

It is necessary to ensure that in the field of social security Article 9 of the Agreement 
and Article 39 of the Additional Protocol are fully implemented. 

1 
2 
3 

OJ 217, 29.12.1964, p.3687/64. 
OJ L 293,29.12.1972, p.3. 
OJ C110, 25.4.1983, p.60. 

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(7) 

(8) 

(9) 

It is necessary to update the content of Decision No 3/80 so that its provisions reflect 
recent developments in the field of European Union social security coordination.  

Council Regulation (EU) No 1231/20104 already extends the provisions of Regulation 
(EC)  No  883/2004  and  Regulation  (EC)  No  987/2009  to  nationals  of  third  countries 
who  are  not  already  covered  by  those  provisions  solely  on  the  grounds  of  their 
nationality. Regulation (EU) No 1231/2010 already covers the principle of aggregation 
of  insurance  periods  acquired  by  Turkish  workers  in  the  various  Member  States 
regarding entitlement to certain benefits, as set out in Article 39(2) of the Additional 
Protocol. 

Decision  No  3/80  should  therefore  be  repealed  and  replaced  with  a  decision  of  the 
Association  Council  that  in  one  single  step  implements  all  principles  on  the 
coordination  of  social  security  systems  contained  in  the  Agreement  and  in  the 
Additional Protocol. 

(10)  With  regard  to  the  application  of  the  non-discrimination  principle,  this  Decision 
should not give any additional rights arising from certain facts or events occurring on 
the  territory  of  the  other  Contracting  Party,  where  such  facts  or  events  are  not  taken 
into account under the legislation of the first Contracting Party, other than the right to 
export certain benefits. 

(11) 

In applying this Decision, the right of workers to family benefits should be subject to 
the  condition  that  their  family  members  legally  reside  with  these  workers  in  the 
Member  State  where  the  workers  are  employed.  This  Decision  should  not  give  any 
entitlement  to  family  benefits with  respect to  members  of  their  family  who  reside  in 
another state, for instance Turkey. 

(12) 

It might be necessary to lay down special provisions which correspond to the specific 
characteristics of the legislation of Turkey, in order to facilitate the application of the 
coordination rules. 

(13)  To ensure the smooth functioning of the coordination of the social security systems of 
the  Member  States  and  of  Turkey,  it  is  necessary  to  provide  for  specific  provisions 
regarding the cooperation between the Member States and Turkey as well as between 
the person concerned and the institution of the competent State. 

(14)  Transitional  provisions  should  be  adopted  to  protect  the  persons  covered  by  this 

Decision and to ensure that they do not lose rights as a result of its entry into force, 

HAS ADOPTED THIS DECISION:  

4 

OJ L 344, 29.12.2010, p. 1. 

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PART I 

GENERAL PROVISIONS 

Article 1 

Definitions 

1. 

(a) 

(b) 

(c) 

(d) 

(e) 

For the purposes of this Decision 

"Agreement"  means  the  Agreement  establishing  an  association  between  the 
European Economic Community and Turkey; 

"Regulation"  means Regulation (EC) No 883/2004 of the European Parliament and 
of  the  Council  of  29  April  2004  on  the  coordination  of  social  security  systems5  as 
applicable in the Member States of the European Union; 

"implementing  Regulation"  means  Regulation  (EC)  No  987/2009  of  the  European 
Parliament and of the Council of 16 September 2009 laying down the procedure for 
implementing  Regulation  (EC)  No  883/2004  on  the  coordination  of  social  security 
systems6; 

"Member State" means a Member State of the European Union; 

"worker" means, 

(i) 

(ii) 

for the purposes of the legislation of a Member State, a person pursuing 
an activity as an employed person within the meaning of Article 1(a) of 
the Regulation; 
for the purposes of the legislation of Turkey, a person pursuing an 
activity as an employed person within the meaning of that legislation; 

(f) 

"member of the family" means, 

(i) 

(ii) 

for  the  purposes  of  the  legislation  of  a  Member  State,  a  member  of  the 
family within the meaning of Article 1(i) of the Regulation; 
for  the  purposes  of  the  legislation  of  Turkey,  a  member  of  the  family 
within the meaning of that legislation; 

(g) 

"legislation" means, 

(i) 

(ii) 

in  relation  to  the  Member  States,  legislation  within  the  meaning  of 
Article  1(1)  of  the  Regulation  as  applicable  to  the  benefits  covered  by 
this Decision; 
in  relation  to  Turkey,  the  relevant  legislation  as  applicable  in  Turkey 
relating to the benefits covered by this Decision; 

(h) 

"benefits" means, 

5 
6 

OJ L 166, 30.4.2004, p.1. 
OJ L 284, 30.10.2009, p. 1. 

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(i) 

in relation to the Member States, benefits within the meaning of Article 3 
of the Regulation; 

(ii) 

in relation to Turkey, the corresponding benefits applying within Turkey; 

(i) 

"exportable benefits" means, 

(i) 
– 
– 
– 
– 

in relation to the Member States: 
old-age pensions, 
survivors' pensions,  
pensions in respect of accidents at work and occupational diseases, 
invalidity pensions, 

within the meaning of the Regulation, with the exception of special non-contributory 
cash benefits as listed in Annex X to the Regulation; 

(ii) 

in  relation  to  Turkey,  the  corresponding  benefits  provided  under  the 
legislation of Turkey, with the exception of special non-contributory cash 
benefits as set out in Annex I to this Decision; 

2. 

(a) 

(b) 

Other terms used in this Decision shall have the meaning which is assigned to them: 

in relation to the Member States, in the Regulation and the implementing Regulation; 

in relation to Turkey, in the relevant legislation as applicable in Turkey. 

Article 2 

Persons covered 

This Decision shall apply: 

(a) 

(b) 

(c) 

(d) 

to  Turkish  workers  who  are  or  have  been  legally  employed  in  the  territory  of  a 
Member  State  and  who  are  or  have  been  subject  to  the  legislation  of  one  or  more 
Member States, and their survivors; 

to the members of the family of workers referred to in point (a) provided that these 
family members are or have been legally resident with the worker concerned while 
the worker is employed in a Member State; 

to  workers  who  are  nationals  of  a  Member  State  who  are  or  have  been  legally 
employed  in  the  territory  of  Turkey  and  who  are  or  have  been  subject  to  the 
legislation of Turkey and their survivors; and 

to the members of the family of workers referred to in point (c) provided that these 
family members are or have been legally resident with the worker concerned while 
the worker is employed in Turkey. 

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Article 3 

Equality of Treatment  

1. 

2. 

1. 

(i) 

(ii) 

2. 

3. 

Turkish workers who are legally employed in a Member State and any members of 
their  families  legally  residing  with  them  shall  enjoy,  with  regard  to  the  benefits 
within the meaning of Article 1(1)(h), treatment free from any discrimination based 
on nationality relative to nationals of the Member States in which those workers are 
employed. 

Workers  who  are  nationals  of  a  Member State  and  are  legally  employed  in  Turkey 
and any members of their families legally residing with them shall enjoy, with regard 
to  the  benefits  within  the  meaning  of  Article  1(1)(h),  treatment  free  from  any 
discrimination based on nationality relative to nationals of Turkey. 

Part II 

RELATIONS BETWEEN THE MEMBER STATES AND TURKEY 

Article 4 

Waiving of residence clauses 

Exportable  benefits  within  the  meaning  of  Article  1(1)(i)  to  which  the  persons  as 
referred to in Article 2(a) and (c) are entitled shall not be subject to any reduction, 
modification,  suspension,  withdrawal  or  confiscation  by  reason  of  the  fact  that  the 
beneficiary is residing, 

for the purpose of a benefit under the legislation of a Member State, within the 
territory of Turkey, or 
for the purpose of a benefit under the legislation of Turkey, within the territory of a 
Member State. 

Family members of a worker as referred to in Article 2(b) are entitled to exportable 
benefits  within  the  meaning  of  Article  1(1)(i)(i)  in  the  same  way  as  the  family 
members of a worker who is a national of the Member State concerned when these 
family members reside within the territory of Turkey. 

Family members of a worker as referred to in Article 2(d) are entitled to exportable 
benefits  within  the  meaning  of  Article  1(1)(i)(ii)  in  the  same  way  as  the  family 
members of a worker who is a national of Turkey when these family members reside 
within the territory of a Member State. 

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PART III 

MISCELLANEOUS PROVISIONS 

Article 5 

Cooperation  

1. 

2. 

3. 

4. 

5. 

6. 

7. 

The  Member  States  and  Turkey  shall  communicate  to  each  other  all  information 
regarding  changes  in  their  legislation  which  may  affect  the  implementation  of  this 
Decision. 

For  the  purposes  of  this  Decision,  the  authorities  and  institutions  of  the  Member 
States  and  of  Turkey  shall  lend  one  another  their  good  offices  and  act  as  though 
implementing their own legislation. The administrative assistance given by the said 
authorities and institutions shall, as a rule, be free of charge. However, the competent 
authorities of the Member States and of Turkey may agree to certain expenses being 
reimbursed. 

The  authorities  and  institutions  of  the  Member  States  and  of  Turkey  may,  for  the 
purposes  of  this  Decision,  communicate  directly  with  one  another  and  with  the 
persons involved or their representatives. 

The  institutions  and  persons  covered  by  this  Decision  shall  have  a  duty  of  mutual 
information and cooperation to ensure the correct implementation of this Decision. 

The persons concerned must inform the institutions of the competent Member State 
or  Turkey,  where  the  latter  is  the  competent  state,  and  of  the  Member  State  of 
residence or Turkey, where the latter is the State of residence, as soon as possible of 
any change in their personal or family situation which affects their right to benefits 
under this Decision. 

Failure to respect the obligation of information referred to in paragraph 5 may result 
in  the  application  of  proportionate  measures  in  accordance  with  national  law. 
Nevertheless,  these  measures  shall  be  equivalent  to  those  applicable  to  similar 
situations  under  domestic  law  and  shall  not  make  it  impossible  or  excessively 
difficult  in  practice  for  claimants  to  exercise  the  rights  conferred  on  them  by  this 
Decision. 

The  Member  States  and  Turkey  may  provide  for  national  provisions  that  establish 
conditions for verification of the entitlement to benefits to take into account the fact 
that the beneficiaries are staying or residing outside the territory of the State where 
the debtor institution is located. Such provisions shall be proportionate, free from any 
discrimination  based  on  nationality  and  in  accordance  with  the  principles  of  this 
Decision. Such provisions shall be notified to the Association Council. 

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Article 6 

Administrative checks and medical examinations 

This  Article  shall  apply  to  the  persons  as  referred  to  in  Article  2  and  in  receipt  of 
exportable  benefits  as  referred  to  in  Article  1(1)(i),  as  well  as  to  the  institutions  in 
charge of the implementation of this Decision. 

Where a recipient or a claimant of benefits, or a member of his family, is staying or 
residing within the territory of a Member State when the debtor institution is located 
in Turkey or in Turkey when the debtor institution is located in a Member State, the 
medical  examination  shall  be  carried  out,  at  the  request  of  that  institution,  by  the 
institution  of  the  beneficiary’s  place  of  stay  or  residence  in  accordance  with  the 
procedures laid down by the legislation applied by that institution.  

The debtor institution shall inform the institution of the place of stay or residence of 
any special requirements, if necessary, to be followed and points to be covered by the 
medical examination.  

The institution of the place of stay or residence shall forward a report to the debtor 
institution that requested the medical examination.  

The debtor institution shall reserve the right to have the beneficiary examined by a 
doctor of its choice, either in the territory where the recipient or claimant of benefit is 
staying or residing or in the country where the debtor institution is located. However, 
the beneficiary may be asked to return to the State of the debtor institution only if he 
or  she  is  able  to  make  the  journey  without  prejudice  to  his  health  and  the  cost  of 
travel and accommodation is paid for by the debtor institution.  

Where a recipient or a claimant of benefits, or a member of his family, is staying or 
residing in the territory of a Member State when the debtor institution is located in 
Turkey  or  in  Turkey  when  the  debtor  institution  is  located  in  a  Member  State,  the 
administrative check  shall,  at the  request of the debtor institution,  be performed by 
the institution of the beneficiary’s place of stay or residence.  

The institution of the place of stay or residence shall forward a report to the debtor 
institution that requested the administrative check. 

The debtor institution shall reserve the right to have the situation of the beneficiary 
examined by a professional of its choice. However, the beneficiary may be asked to 
return  to  the  State  of  the  debtor  institution  only  if  he  or  she  is  able  to  make  the 
journey without prejudice to his health and the cost of travel and accommodation is 
paid for by the debtor institution. 

One  or  more  Member  States  and  Turkey  may  agree  on  other  administrative 
provisions, subject to their informing the Association Council thereof. 

As  an  exception  to  the  principle  of  free-of-charge  mutual  administrative  assistance 
set out in Article 5(2) of this Decision, the effective amount of the expenses of the 
checks  referred  to  in  paragraphs 2 and 3  of  this  Article  shall  be  refunded  to  the 

1. 

2. 

3. 

4. 

5. 

EN 

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institution  which  was  requested  to  carry  them  out  by  the  debtor  institution  which 
requested them. 

Article 7 

Application of Article 25 of the Agreement 

Article 25 of the Agreement shall apply in case either Party considers that the other Party has 
not complied with the obligations as laid down in Articles 5 and 6. 

Article 8 

Special provisions for the application of the legislation of Turkey 

The Association Council may, if necessary, lay down special provisions for the application of 
the legislation of Turkey in Annex II. 

Article 9 

Administrative procedures from existing bilateral agreements 

Administrative procedures contained in existing bilateral agreements between a Member State 
and Turkey may continue to apply provided that these procedures do not adversely affect the 
rights or obligations of the persons concerned established by this Decision. 

Article 10 

Agreements supplementing the procedures for implementing this Decision 

One  of  more  Member  States  and  Turkey  may  conclude  agreements  designed  to  supplement 
the  administrative  procedures  for  implementing  this  Decision,  especially  with  regard  to 
preventing and combating fraud and error. 

EN 

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PART IV 

TRANSITIONAL AND FINAL PROVISIONS 

Article 11 

Transitional provisions 

1. 

2. 

3. 

4. 

5. 

6. 

No rights shall be acquired pursuant to this Decision for the period before its entry 
into force. 

Subject to paragraph 1, a right shall be acquired under this Decision even if it relates 
to a contingency arising before its date of entry into force. 

Any benefit which has not been awarded or which has been suspended by reason of 
the nationality or place of residence of the person concerned shall, at the request of 
that person, be provided or resumed with effect from the date of entry into force of 
this  Decision,  provided  that  the  rights  for  which  benefits  were  previously  provided 
have not given rise to a lump-sum payment. 

If a request as referred to in paragraph 3 is submitted within two years from the date 
of  entry  into  force  of  this  Decision,  the  rights  acquired  in  accordance  with  this 
Decision shall have effect from the date of entry into force of this Decision, and the 
legislation of any Member State or Turkey concerning the forfeiture or limitation of 
rights may not be invoked against the persons concerned. 

If a request as referred to in paragraph 3 is submitted after the expiry of the two-year 
period following the date of entry into force of this Decision, rights not forfeited or 
not time-barred shall have effect from the date on which the request was submitted, 
subject to any more favourable provisions under the legislation of any Member State 
or Turkey. 

The rights of a person to whom a pension or special non-contributory cash benefit is 
being  provided  by  a  Member  State  prior  to  the  date  of  entry  into  force  of  this 
Decision  as  a  result  of  the  direct  effect  of  Article  6(1)  of  Decision  No  3/80  of  the 
Association Council shall not be limited or forfeited as a result of this Decision. 

Article 12 

Annexes to this Decision 

The Annexes to this Decision constitute an integral part thereof. 

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Article 13 

Repeal 

Decision No 3/80 of the Association Council of 19 September 1980 shall be repealed from the 
date of entry into force of this Decision. 

Article 14 

Entry into force 

This Decision shall enter into force on the day following that of its publication in the Official 
Journal of the European Union. 

Done at Brussels, 

For the Association Council 

The President 

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LIST OF TURKISH SPECIAL NON-CONTRIBUTORY CASH BENEFITS 

ANNEX I 

EN 

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ANNEX II 

SPECIAL PROVISIONS FOR THE APPLICATION OF THE LEGISLATION OF 
TURKEY 

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