CELEX: 62001CC0317
Language: en
Date: 2003-05-13 00:00:00
Title: Opinion of Mr Advocate General Mischo delivered on 13 May 2003. # Eran Abatay and Others (C-317/01) and Nadi Sahin (C-369/01) v Bundesanstalt für Arbeit. # Reference for a preliminary ruling: Bundessozialgericht - Germany. # EEC-Turkey Association - Interpretation of Article 41(1) of the Additional Protocol and Article 13 of Decision No 1/80 - Abolition of restrictions on the freedom of movement for workers, on the freedom of establishment and on the freedom to provide services - Standstill clauses - Direct effect - Scope - Legislation of a Member State requiring a work permit in the international road haulage sector. # Joined cases C-317/01 and C-369/01.

OPINION OF ADVOCATE GENERALMISCHO delivered on 13 May 2003  (1)
         Joined Cases C-317/01 and C-369/01 Eran Abatay and OthersvBundesanstalt für Arbeit (C-317/01)andNadi Sahin, Internationale TransportevBundesanstalt für Arbeit (C-369/01)(Reference for a preliminary ruling from the Bundessozialgericht, Germany)
            ((EEC-Turkey Association – Interpretation of Article 41(1) of the Additional Protocol and Article 13 of Decision No 1/80 of the Association Council – Abolition of restrictions on the freedom of movement of workers, on the freedom of establishment and on the freedom to provide
               services – Standstill clause – Scope – New legislation requiring a work permit in the international road transport sector))
            
            
      
         
      1.  The Seventh and Eleventh Chambers of the Bundessozialgericht (Federal Social Court, Germany) have referred questions to the
      Court for a preliminary ruling on the interpretation of Article 41(1) of the Additional Protocol of 23 November 1970 to the
      Agreement establishing an Association between the European Economic Community and Turkey of 1963, 
      
         			(2)
         		 and of Article 13 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association
      Council established by the abovementioned Agreement. 
      
         			(3)
         		 I ─ Legal background
      
      
      
      A ─
       The EEC-Turkey Association  
      
      2.  The Agreement establishing an Association between the European Economic Community and the Republic of Turkey (hereinafter
       
      the Agreement) was signed on 12 September 1963 in Ankara by the Republic of Turkey, of the one part, and by the Member States of the European
      Economic Community and the Community, of the other part, and concluded, approved and confirmed on behalf of the Community
      by Council Decision 64/732/EEC of 23 December 1963 on the conclusion of the Agreement establishing an Association between
      the European Economic Community and Turkey. 
      
         			(4)
         		
      3.  Article 2(1) of the Agreement provides that its aim is to promote the continuous and balanced strengthening of trade and economic
      relations between the contracting parties, including relations in the employment sector, by progressively securing freedom
      of movement for workers (Article 12), as well as by the abolition of restrictions on the freedom of establishment (Article 13)
      and the freedom to provide services (Article 14). 
      
      4.  Article 6 of the Agreement provides for the creation of an Association Council which is to act within the powers conferred
      upon it by the Agreement.
      
      5.  Article 12 of the Agreement states: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.
      
      6.  Article 14 of the Agreement provides:The Contracting Parties agree to be guided by Articles 55, 56 and 58 to 65 of the Treaty establishing the Community for the
      purpose of abolishing restrictions on the freedom to provide services between them.
      
      7.  In terms of Article 22(1) of the Agreement:1. 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. ...
      
      8.  The Additional Protocol includes a Title II, headed  
      Movement of persons and services, Chapter I of which relates to  
      [w]orkers and Chapter II of which to  
      [r]ight of establishment, services and transport. Article 36, which forms part of Chapter I, lays down timescales for securing freedom of movement for workers between the
      Member States of the Community and the Republic of Turkey by progressive stages in accordance with the principles laid down
      by Article 12 of the Agreement, and states in its second paragraph that the Association Council is to decide on the rules
      necessary to that end. 
      
      9.  In terms of Article 41 of the Additional Protocol, which forms part of Title II of Chapter II of the Protocol: 
      1.  The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment
      and the freedom to provide services.
      
      2.  The Council of Association shall, in accordance with the principles set out in Articles 13 and 14 of the Agreement of Association,
      determine the timetable and rules for the progressive abolition by the Contracting Parties, between themselves, of restrictions
      on freedom of establishment and on freedom to provide services. The Council of Association shall, when determining such timetable and rules for the various classes of activity, take into
      account corresponding measures already adopted by the Community in these fields and also the special economic and social circumstances
      of Turkey. Priority shall be given to activities making a particular contribution to the development of production and trade.
      
      
      10.  On 19 September 1980, the Association Council adopted Decision No 1/80.
      
      11.  Article 6 of Decision No 1/80 establishes, for the benefit of Turkish workers, a system of progressive access to employment
      which enables them, after one year's legal employment, to obtain the renewal of their permit to work for the same employer,
      after three years and subject to the priority to be given to workers of Member States of the Community, to respond to another
      offer of employment for the same occupation and, after four years, to enjoy free access to any paid employment. Paragraph
      3 states that the procedures for applying the article are to be established under national rules. 
      
      12.  Article 8(1) provides that,  
      should it not be possible in the Community to meet an offer of employment by calling on the labour available on the employment
      market of the Member States and should the Member States, within the framework of their provisions laid down by law, regulation
      or administrative action, decide to authorise a call on workers who are not nationals of a Member State of the Community in
      order to meet the offer of employment, they shall endeavour in so doing to accord priority to Turkish nationals.
      
      13.  Article 13 of Decision No 1/80, which forms part of Chapter II, headed  
      Social provisions, Section 1, headed  
      Questions relating to employment and the free movement of workers, states that:The Member States of the Community and Turkey may not introduce new restrictions on the conditions of access to employment
      applicable to workers and members of their families legally resident and employed in their respective territories.
      
      
      
      B ─
       National legislation
      
      14.  Under Paragraph 9 of the Verordnung über die Artbeitserlaubnis für nichtdeutsche Arbeitnehmer (Work Permit Regulation for
      Non-German Workers, hereinafter the  
      AEVO) of 2 March 1971 (BGBl. I, p. 152), in the version in force on 1 January 1973: There shall be exempted from the requirement to obtain work permits ...
      2.  Travelling personnel in the international carriage of passengers and goods ... for employers with registered offices in the
      territory of application of this regulation.
      
      
      15.  The 10th regulation amending the AEVO, which was adopted and came into force on 1 September 1993 (BGBl. I, p. 1527), amended
      Paragraph 9(2) by restricting the right to a dispensation from work permits to travelling personnel working in the international
      carriage of passengers and goods  
      for employers with registered offices abroad.
      
      16.  On 30 September 1996 (BGBl. I, p. 1491), a further amendment was made to Paragraph 9(2) of the AEVO. The version in force
      from 10 October 1996 reads as follows: 
      2.  Travelling personnel working in the international carriage of passengers and goods for employers with registered offices abroad,
      where
      (a) the vehicle is registered in the State of the employer's registered office;
      ...
      
      
      17.  Paragraph 9(3) of the Verordnung über die Arbeitsgenehmigung für ausländische Arbeitnehmer (Work Permit Regulation for Foreign
      Workers, hereinafter  
      the ArGV) of 17 September 1998 (BGBl. I, p. 2899), which replaced the AEVO, adopted the text of Paragraph 9(2) of the AEVO without
      amendment. 
       II ─ Facts and main proceedings
      
      
      
      A ─
       Case C-317/01
      
      18.  Messrs Eran Abatay, Abdulgam Balikci, Ismail Birer and Refik Günes (hereinafter  
      Mr Abatay and Others) are Turkish nationals residing in Turkey and work mainly as drivers engaged in international haulage of goods. They are
      employed and paid by Baqir Dis Tic. Ve Paz. Ltd, which has its registered office in Mersin, Turkey (hereinafter  
      Baqir Ltd), which is a subsidiary of Baqir GmbH, which has its registered office in Stuttgart, Germany. Baqir Ltd and Baqir GmbH import
      fruit and vegetables, mostly self-grown, into Germany. The goods are transported from Turkey to Germany by means of lorries
      registered in Germany in the name of Baqir GmbH and driven by (among others) Mr Abatay and Others. 
      
      19.  After the coming into force of the new regulation, the Bundesanstalt für Arbeit (Federal Labour Office, Germany) continued
      to issue, on a temporary basis, a work permit to the drivers valid until 30 September 1996. However, after that date, it refused
      to issue further permits.
      
      20.  In proceedings brought by Mr Abatay and Others, the Sozialgericht, Nürnbert (Social Court,  Nuremberg, Germany), found that
      the claimants did not require work permits. This judgment was confirmed on appeal by the Bayerisches Landessozialgericht (Higher
      Social Court, Bavaria, Germany). Those courts held, in essence, that the restriction imposed by the new German provisions,
      requiring Mr Abatay and Others to be the holders of such permits, amounted to a restriction contrary to the  
      standstill clause of Article 13 of Decision No 1/80.
      
      21.  The Bundesanstalt für Arbeit brought an appeal on a point of law, challenging the interpretation given by the appeal court
      of Article 13 of Decision No 1/80. 
      
      22.  Proceedings having been raised before it, the Eleventh Chamber of the Bundessozialgericht asks in its order for reference
      whether the claimants have a valid claim to be exempt from the requirement to obtain a work permit, based on Article 13 of
      Decision No 1/80 or Article 41(1) of the Additional Protocol. The amendments to the AEVO brought into force on 1 September
      1993 and 10 October 1996 could be construed as amounting to new restrictions on the conditions of access to employment within
      the meaning of Article 13 of Decision No 1/80 or new restrictions on the freedom to provide services within the meaning of
      Article 41(1) of the Additional Protocol.
      
      23.  There is no doubt in this regard that these provisions are directly applicable in Member States, but their scope raises a
      number of problems. 
      
      24.  I shall set out below the questions referred for a preliminary ruling put by the Eleventh Chamber in this regard, as well
      as the substance of the commentary which accompanies them. 
      
      
      
      B ─
       Case C-369/01
      
      25.  Mr Nadi Sahin, a former Turkish national who has been a German national since 1991, runs the transport undertaking  
      Sahin Internationale Transporte in Göppingen, Germany. He is also the proprietor of a subsidiary of the latter, called Anadolu Dis Ticaret AS (hereinafter
       
      Anadolu AS), which has its registered office in Istanbul, Turkey. The Göppingen undertaking owns several lorries, which it uses for
      international haulage, operating between Germany, Turkey, Iran and Iraq. All the lorries are registered in Germany. According
      to the national court, there is an  
      agency agreement between Mr Sahin's German firm and its Turkish subsidiary, under which Anadolu AS uses Mr Sahin's lorries for international
      haulage operations.
      
      26.  However, the document called  
      Agency Agreement (
      Agenturvertrag) which is to be found in the file transmitted by the national court merely provides that the Turkish subsidiary is authorised
       
      to load and unload our vehicles as well as those of transport undertakings used by us, and to carry out the customs formalities
      and other administrative formalities associated with that (
      ist berechtigt, unsere Fahrzeuge sowie die Fahrzeuge der von uns eingesetzten Transportunternehmer zu ent- und beladen, die
      damit im Zusammenhang stehenden zollamtlichen und behördlichen Tätigkeiten vorzunehmen).
      
      27.  The national court also indicates that even before 1 September 1993 Mr Sahin had used some 17 employees as drivers of the
      lorries registered in Germany. Those employees are Turkish nationals, live in Turkey and had concluded their contracts of
      employment with Anadolu AS before that date. For each journey to Germany, a German visa was issued to them by the appropriate
      consulate general. The Seventh Chamber adds however that the necessary findings of fact which would enable a conclusion to
      be reached as to who the drivers' employer is have so far been lacking.
      
      28.  By application of 29 May 1996, Mr Sahin sought a declaration that the workers in question did not require work permits for
      their activities. He obtained an interim order from the Sozialgericht Ulm (Germany), on 9 December 1996, that required the
      Bundesanstalt für Arbeit to issue work permits to the drivers pending a final decision on the substance of the case. 
      
      29.  However, in a final judgment delivered on 10 February 1998, the Sozialgericht Ulm held that the 17 drivers in question did
      not need to obtain a work permit. 
      
      30.  The appeal raised by the Bundesanstalt für Arbeit was dismissed by decision of 27 July 2000 of the Landessozialgericht, Baden-Württemberg
      (Germany), which based its reasoning in essence on Article 41(1) of the Additional Protocol, holding that the legal rules
      in force on 1 January 1973 remained relevant. 
      
      31.  The Bundesanstalt für Arbeit brought an appeal on a point of law against that judgment, claiming in particular that there
      had been a breach of Paragraph 9(2) of the AEVO. 
      
      32.  In seeking to have the appeal dismissed, Mr Sahin argues that both Article 41(1) of the Additional Protocol and Article 13
      of Decision No 1/80 contain a  
      standstill clause which prohibits the creation of new restrictions relating to work permits for Turkish workers.
      
      33.  The Seventh Chamber of the Bundessozialgericht has raised questions on the scope of Article 41 of the Additional Protocol,
      on the relationship between this article and Article 13 of Decision No 1/80 and on the scope of the latter provision. That
      court has referred several questions for a preliminary ruling to the Court in order to resolve these issues. 
       III ─ Consideration of the questions referred for a preliminary ruling
      
      34.  While recognising that the way in which the Commission has regrouped and reformulated the different questions is useful, my
      preference is to retain their original wording.
      
      
      
      A ─
       The first question referred for a preliminary ruling in Case C-317/01
      
      35.  This question is worded as follows:(1) Is Article 13 of Decision No 1/80 ... to be interpreted as prohibiting a Member State of the Community from introducing
      national provisions which, in comparison with the position under national law on 1 December 1980, lay down new restrictions
      on access to the employment market for Turkish workers generally, or does the prohibition on introducing new restrictions
      under Article 13 of Decision No 1/80 relate only to the time when a worker is first legally employed?
       1. Opinion of the national court and arguments raised before the Court
      
      36.  The  
       national court   observes that the wording of Article 13 suggests that the prohibition on the introduction of new restrictions under Article 13
      should be interpreted as meaning that it applies only to the time from which the worker's residence and employment in the
      territory of the State concerned first became lawful, and not the time from which the provision first became applicable. However,
      that interpretation of Article 13 is not mandatory. 
      
      37.   Mr Abatay and Others   construe the first question in Case C-317/01 as meaning that the national court asks whether Article 13 of Decision No 1/80
      prohibits, in the abstract, the adoption of any provision by which access to employment is made subject to a new restriction
      or whether the intention of the provision is to set the point of departure by reference in each actual case to the date of
      first residence and first legal employment of the worker.
      
      38.  They argue that Article 13 of Decision No 1/80 prohibits the introduction of new national legislation relating to access to
      employment which is more restrictive than is that applying on the date on which that article came into force. They claim that
      the requirement under this provision that Turkish nationals be legally resident and employed in the territory of the host
      Member State means only that persons living or working illegally in a Member State cannot make use of rights arising under
      the article.
      
      39.  Mr Abatay and Others also challenge the relevance of this question to the result of the case where the claimants in the main
      proceedings were already legally resident in the Member State in question or were legally employed there at the date on which
      the new national legislation came into force. Employment and residence in the Member State are lawful as soon as they comply
      with the legal and regulatory requirements in force in that State. 
      
         			(5)
         		 The employment of the claimants in the main proceedings was accordingly lawful before the amendment of the AEVO which came
      into force on 10 October 1996 and came within the scope of protection of Article 13. The first question does not therefore
      require to be answered. 
      
      40.  Mr Abatay and Others rely in the alternative on Article 6 of Decision No 1/80, which gives a Turkish worker duly registered
      as belonging to the labour force of a Member State the right of free access in that Member State to any paid employment of
      his choice after four years of legal employment.
      
      41.  According to  
       Mr Sahin , the proprietor of an international haulage business and claimant in the main proceedings in Case C-369/01, the  
      standstill applied from the date of the coming into force, on 20 December 1976, of Decision No 2/76, which preceded Decision No 1/80.
      Article 7 of the earlier decision contained a provision relating to workers that was similar to Article 13 of the later decision.
      To interpret these articles as meaning that the prohibition on introducing new restrictions on access to employment refers
      to the date of first legal residence and employment of the workers concerned (as the Bundesanstalt für Arbeit and the Member
      States do) would be illogical, in that a person who already formed part of the labour market of a Member State would no longer
      have any need to benefit from a rule prohibiting further restrictions on access to employment. 
      
      42.  For Mr Sahin, the interpretation he proposes is supported by the wording of Article 13. The family members whom this article
      seeks to benefit plainly could not be in employment, as otherwise they would already benefit from the rights available to
      workers. This legislation therefore also favours employment seekers who have not yet been taken on. A person who is working
      has no need for access to the labour force, because he is already part of it. The provision in question is intended to assist
      access to the market, and it follows that, as far as the application of the clause is concerned, the time when legal employment
      is first taken up is of no relevance. Nor is the critical factor the date of first legal residence, as there is one point
      behind the provision in question, namely that illegal residence can never form a basis for access to employment rights. 
      
         			(6)
         		
      43.  The  
       German Government   considers that the prohibition on introducing new restrictions contained in Article 13 of Decision No 1/80 only applies from
      the date of first legal residence and first legal employment of the workers concerned in the host Member State. It takes the
      view that this analysis is supported by a comparison with Article 41(1) of the Additional Protocol. While that provision is
      of general application, the terms of Article 13 of Decision No 1/80 are more limited in scope, and relate only to workers
      and members of their families who are legally resident. 
      
      44.  For the German Government, this conclusion is also consistent with the objective of Article 13 of Decision No 1/80. It does
      not seek to regulate the free movement of workers between Turkey and the Member States on a long-term basis, but aims only
      to ensure the progressive consolidation of the position of Turkish workers who have regularly formed part of the labour force
      in a Member State. Every worker is entitled to be certain that his rights existing at the time of his entry to the territory
      could not be adversely affected. That consolidating objective of Decision No 1/80 does not however affect the power of national
      authorities to control the entry of Turkish nationals into the territory of the Member State concerned and their first employment
      in that State. The same logic underlies Article 6 of Decision No 1/80. 
      
      45.  The  
       French Government   largely adopts the point of view of the German Government. For the French Government, Article 13 of Decision No 1/80 does
      not seek to regulate the free movement of workers between Turkey and the Member States on a long-term basis, but aims only
      to ensure the progressive consolidation of the position of Turkish workers who have regularly formed part of the labour force
      in a Member State. That consolidating objective of Decision No 1/80 does not however affect the power of national authorities
      to control the entry of Turkish nationals into the territory of the Member State concerned and their first employment in that
      State. The same logic underlies Article 6 of Decision No 1/80. 
      
      46.  The  
       Netherlands Government   argues that the wording itself of Article 13 of Decision No 1/80 shows that the prohibition which it contains relates solely
      to  
      legal workers who are already in employment. The  
      standstill obligation applies only to workers who already form part of the labour force. The provision does not however regulate the
      conditions applying to entry of these workers to the labour force. The Member States have therefore retained the power to
      adopt new restrictions as regards entry to the labour force, but they cannot introduce restrictions which would affect workers
      who already form part of it. 
      
      47.  This also follows if one reads Article 13 consistently with other parts of the same decision. Thus, Articles 6, 7, 8, 9, 10
      and 11 of Decision No 1/80 each refer to  
      duly registered as belonging to the labour force and  
      legal employment, but nowhere refer to entry to the labour force itself. 
      
      48.  That interpretation is also confirmed by settled case-law (see  
       inter alia  the judgments in  
       Tetik , 
      
         			(7)
         		 at paragraph 21, and  
       Savas , 
      
         			(8)
         		 at paragraph 58), according to which Member States retain the competence to regulate entry to the labourforce. 
      
      49.  The  
       Commission   notes that  
      Decision No 1/80 confers ... no right of freedom of movement to Turkish workers. In the current state of the law governing
      the EEC-Turkey Association, the establishment of conditions governing entry to the territory of a member of the European Union
      remains within the exclusive competence of that State. Workers enjoy no rights under Decision No 1/80 until they have entered
      the labour market in a Member State. 
       2. Assessment
      
      50.  The Commission's observations are plainly correct, as are the corresponding views of the Governments of the Member States.
      
      51.  In its judgment in the  
       Savas   case, cited above, the Court moreover held that: 
      
      58
         
       ... the provisions concerning the EEC-Turkey Association do not encroach upon the competence retained by the Member States
      to regulate both the entry into their territories of Turkish nationals and the conditions under which they may take up their
      first employment, but merely regulate the situation of Turkish workers  
       already lawfully integrated  
      
         			(9)
         		 into the labour force of Member States (see, in particular, Case C-171/95  
       Tetik   v  
       Land Berlin   [1997] ECR I-329, paragraph 21).
      
      
      59
         
       Next, the Court has repeatedly held that, unlike nationals of Member States, Turkish workers are not entitled to move freely
      within the Community but benefit only from certain rights in the host Member State whose territory they have lawfully entered
      and where they have been in legal employment for a specific period (see, in particular,  
       Tetik,   paragraph 29).
      
      
      52.  The  
       Savas   judgment refers generally  
      to the provisions of the EEC-Turkey Association Agreement. 
      
      53.  It would thus be incorrect to interpret Article 13 of Decision No 1/80 in a different sense, for example by retaining only
      the first part (
      The Member States of the Community and Turkey may not introduce new restrictions on the conditions of access to employment
      applicable to workers and members of their families), while leaving aside the second part (
      legally resident and employed in their respective territories).
      
      54.  It is also wrong to maintain, as the claimants in the main proceedings do, that no new restrictions could be introduced after
      1 December 1980 that might affect Turkish workers who were not on the territory of a Member State on that date, but that such
      restrictions could only be effective if they related to Turkish workers who were there unlawfully.
      
      55.  I therefore suggest to the Court that it should hold that even after 1 December 1980 Member States could introduce new restrictions
      relating to the entry into their territory of Turkish workers who wished to take up paid employment there. 
      
      56.  However, by reason of Article 13, such restrictions cannot affect workers who have already obtained legal employment and a
      right of residency in the Member State in question at a time which preceded the introduction of these new restrictions.
      
      57.  Those persons will continue to benefit fully from the rights given to them by Article 6 (or, for members of their family,
      Article 7). 
      
         			(10)
         		
      58.  The judgment in the  
       Kurz   case 
      
         			(11)
         		 set out what should be understood by the expressions  
      worker and  
      registration as duly belonging to the labour force of a Member State. 
      
      59.  The words  
      conditions of access to employment which appear in Article 13 simply refer to rights arising by virtue of Article 6. 
      
      60.  It should be noted that an employee is given the right, after one year's legal employment, to obtain the renewal of his permit
      to work for the same employer, if the latter has a job available, the right, after three years, to move to another employer
      in the same occupation, and, after four years of legal employment, the right to enjoy any paid employment of his choice. 
      
      61.  As the German, French and Netherlands Governments have pointed out, the sole purpose of Article 13 is therefore to strengthen
      the position of Turkish workers (under Articles 6 and 7) who have already taken up legal employment. 
      
      62.  The objection might be raised that in those conditions Article 13 is superfluous, because under the principle  
       pacta sunt servanda,   the Member States are already prohibited from interfering with rights acquired by the workers under Articles 6 and 7. 
      
         			(12)
         		
      63.  I consider none the less that this provision serves a useful purpose in that it confirms the right of workers in a lawful
      situation not to be affected by new restrictions which, moreover, the Member States are always in a position to impose. 
      
      64.  To seek to confer a wider effectiveness on Article 13 would be contrary to its wording and the interpretation given by the
      Court in the  
       Savas   judgment of  
      the provisions of the EEC-Turkey Association Agreement.
      
      65.  I therefore suggest that the first question raised in Case C-317/01 be answered as follows:Article 13 of Decision No 1/80 ... must be interpreted as meaning that where, at any time after 1 December 1980, a Member
      State of the Community introduces new restrictions on access to the employment market for Turkish workers, those restrictions
      will not apply to Turkish workers who, at the time when the restrictions come into force, are already on the territory of
      and legally resident and employed in that Member State.
      
      
      
      B ─
       The second question referred for a preliminary ruling in Case C-317/01 and the third question referred for a preliminary ruling
      in Case C-369/01
      
      66.  The wording of these questions, which refer to the particular situation of Turkish drivers engaged in international haulage,
      is almost identical. They fall to be analysed and answered in the same way. They are respectively worded as follows:Case C-317/01:Is Article 13 of Decision No 1/80 ... also to be applied to workers employed in Turkey, who, as long-distance lorry drivers
      engaged in international haulage, regularly pass through a Member State of the Community without belonging to the legitimate
      labour force of that Member State?Case C-369/01:Is Article 13 of Decision No 1/80 ... also to be applied to Turkish employees of an employer with its seat in Turkey who,
      as long-distance lorry drivers engaged in international haulage, regularly pass through a Member State of the Community without
      belonging to the (legitimate) labour force of that Member State?
       1. Opinion of the national court and arguments raised before the Court
      
      67.  It appears appropriate as regards these questions to mention the analysis of the Eleventh Chamber of the Bundessozialgericht
      (the national court in the case of Abatay and Others), to which the Seventh Chamber refers.
      
      68.  The Eleventh Chamber states as follows: ... it is doubtful whether Article 13 of Decision No 1/80 must also be applied to workers such as the claimants, who are employed
      in Turkey and who all, as travelling personnel, merely pass through a Member State such as Germany in the course of international
      haulage operations without belonging to the legitimate labour force in Germany (Question 2).In order to ascertain whether a worker belongs to the legitimate labour force, it must be determined whether the legal relationship
      of employment can be located within the territory of the Member State or retains a sufficiently close connection with that
      territory, taking account in particular of the place where the Turkish national was hired, the territory on or from which
      the paid employment is pursued and the applicable national legislation in the field of employment and social security law
      (operative part of the judgment in Case C-434/93  
       Bozkurt   [1995] ECR I-1475; Case C-36/96  
       Günaydin   [1997] ECR I-5143; Case C-98/96  
       Ertanir   [1997] ECR I-5179, SozR 3-6935 Allg. No 3). According to those criteria, workers such as the claimants, who are employed as
      long-distance lorry drivers in Turkey,  
       do not belong to the legitimate labour force in Germany , 
      
         			(13)
         		 at any event, if, as must be assumed in the present case, they are paid in Turkey and are subject to Turkish employment and
      social legislation.The position of Article 13 within Section 1 of Chapter II of Decision No 1/80 (
      Questions relating to employment and the free movement of workers) and of other provisions of that section (in particular Articles 6, 7, 10 and 11) supports the view that Article 13 of Decision
      No 1/80 applies only to workers who belong to the legitimate labour force of a Member State ... . The fact that the activity
      engaged in by foreign long-distance lorry drivers, which affects German territory to only a limited extent, is not covered
      by the provisions of Section 1 of Chapter II of Decision No 1/80, and thus not by Article 13, could stem,  
       inter alia,   from the fact that the provisions of that section are aimed at the progressive integration of Turkish workers and members
      of their families into the labour force. The right to take up further employment and, therefore, the right of residence in
      the territory of the State concerned (see  
       Sevince,   cited above, and Case C-237/91  
       Kus   [1992] ECR I-6781) are greater the longer and more continuously legal employment has been engaged in beforehand. It is questionable
      whether such rights can properly be conferred on long-distance lorry drivers who regularly enter the territory of a State
      only for a limited time and then always leave it again. Thus, for example, the fact of their continuing employment by a foreign
      employer ─ a necessary condition for work permit exemption under German law ─ clearly shows that long-distance lorry drivers
      such as the claimants do not aspire to any such progressively strengthened integration into the German labour force, for which
      reason, moreover, the claimants may likewise not rely on Article 6 of Decision No 1/80 (free access to any employment after
      legal employment). The limitation of the scope of Article 13 of Decision No 1/80 to workers belonging to the legitimate labour force is nevertheless
      not the only possibility, as the view taken by the Landessozialgericht shows. However, the Chamber does not share the Landessozialgericht's
      reasoning that the protection contemplated by Article 13 of Decision No 1/80 must also extend to Turkish workers employed
      in international transport on the ground that in circumstances such as those of the present case the domestic employment market
      is only marginally affected and therefore a restrictive interpretation of the standstill clause is not appropriate. That line
      of reasoning would needlessly restrict the Member States and Turkey in their scope for taking effective action against abuses
      in their employment and economic markets. Moreover, it is doubtful whether, in circumstances of the present kind, the German
      employment market is only marginally affected if, as submitted by the defendant before the courts deciding on the facts in
      the present case, the employment of drivers from low-wage countries using vehicles registered in Germany has the effect that
      unemployed drivers resident in Germany are not recruited.
      
      69.  For their part, Mr Abatay and Others argue that employment and residence in a Member State are lawful as soon as they comply
      with the legal and regulatory requirements in force in that State. 
      
         			(14)
         		 Seen from that point of view, the employment of the claimants was lawful before the German legislation was amended. 
      
      70.  The fact that the centre of gravity of the claimants' activities is not located on the territory of a Member State does not
      harm their case. On the contrary, according to Article 13, protection is given to a job as such, without regard to the question
      of whether it is international or otherwise.
      
      71.  The claimants also dispute the argument that only activities that are subject to the employment law and social law of a Member
      State (that is to say those that are undertaken in the  
      legal employment market) are protected. 
      
      72.  The German Government for its part considers that Article 13 of Decision No 1/80 does not apply to lorry drivers who are employed
      in Turkey and who are engaged, from that country, in international haulage operations, because they do not form part of the
       
      legitimate employment market of the Member State in question. 
      
      73.  The position of Article 13 within the body of Section 1 of Chapter II  
      Questions relating to employment and free movement of workers, its interrelationship with other provisions of that section, in particular Articles 6, 7, 10 and 11, together with the objective
      of progressive integration of Turkish workers and members of their families into the labour market, support this point of
      view. 
      
      74.  None of the connections specified in the judgment in the  
       Bozkurt   case, cited above, are present in this case.
      
      75.  For the Commission, the  
      standstill provision in Article 13 of Decision No 1/80 does not prevent the adoption of national legislation abolishing the exemption
      from the requirement to obtain a work permit previously available to drivers working for an employer having its registered
      office in Turkey and engaged in the international haulage of goods using lorries registered in the Member State concerned.
      Such workers do not display a sufficiently close connection with the territory of that Member State.
       2. Assessment
      
      76.  It follows from the wording of both of these questions as well as from the observations made by the national courts that the
      latter have already formed the view that the Turkish workers in question did not belong to the legitimate labour force in
      Germany, as they did not meet the requirement of a sufficiently close connection set out in the  
       Bozkurt   judgment. 
      
         			(15)
         		
      77.  The two questions under consideration thus ask in effect whether persons whose working relationships do not involve a close
      connection with the territory of a Member State may, none the less, rely on Article 13.
      
      78.  To answer this question in the affirmative would presuppose, first of all, that the concept of a  
      worker ... legally resident and employed which appears in Article 13 of Decision No 1/80 has a different meaning than that of a  
      worker ... duly registered as belonging to the labour force of a Member State used in the first subparagraph of Article 6(1) of that decision, or that of  
      legal employment which is used in each of the three indents of Article 6(1). 
      
      79.  I am of the view that it is not possible to give a different meaning to these more or less identical concepts depending on
      whether they appear in the one or the other article of the same section of the decision.
      
      80.  It should also be emphasised that in the  
       Bozkurt   judgment the Court used the expressions  
      existence of legal employment (paragraph 25),  
      legality of employment (paragraphs 26, 27 and 29),  
      Turkish nationals who are already duly integrated into the labour force (paragraph 30) and  
      existence of legal employment (paragraph 31) interchangeably. 
      
      81.  It plainly considered, therefore, that the expressions used in Article 6 and Article 13 were synonymous.
      
      82.  The  
       Bozkurt   judgment should be referred to for another reason. At paragraph 31 of the judgment, the Court held that in the case of a Turkish
      worker who was not required under the relevant national legislation to hold a work permit or a residence permit issued by
      the authorities of the host State in order to carry out his work, the existence of legal employment  
      can be established. It follows from the context that what the Court had in mind was  
      by other means. 
      
      83.  But as regards the evidence by which the existence of legal employment is to be established, the judgment only refers to the
      three points already referred to, namely the place of employment, the territory from which the paid activities are carried
      out and the legislation governing employment and social security law.
      
      84.  The national courts clearly state that  
      according to those criteria, workers such as the claimants, who are employed as long-distance lorry drivers in Turkey, do
      not in any event belong to the legitimate labour force in Germany if, as must be assumed in the present case, they are paid
      in Turkey and are subject to Turkish employment and social legislation. 
      
      85.  It therefore follows from paragraph 31 of the  
       Bozkurt   judgment that the fact that legislation in force in a Member State does not require the possession of a work permit does not
      mean that workers are automatically to be treated as legally employed within the meaning of Article 13, as the claimants in
      the main proceedings suggest. 
      
      86.  It might however be tempting to disregard entirely the textual arguments set out above, as well as the Court's case-law requiring
      that sufficiently close connections be in place, in order to find an  
       ad hoc  solution to the problem of the Turkish drivers in question, based on the following considerations:
      
      
      ─
         the drivers carried out their activities in compliance with German legislation until the introduction of the new, more restrictive,
         legislation; 
      
      
      
      ─
         they were, for a time, issued with work permits and the Member State thus recognised them as forming part of its labour force;
         
      
      
      
      ─
         the lorries they drive are registered in Germany; 
      
      
      
      ─
         they are in any event in an unusual position, as their activities  
         affect Germany to only a limited extent and they  
         do not aspire in any way to a progressively strengthened integration into the German labour force (according to the expressions used by the national courts).  
      
      
      
      87.  I am of the view, however, that such an approach is incorrect.
      
      88.  The fact that the drivers in question drive lorries registered in Germany should immediately be disregarded.
      
      89.  The  
       Bozkurt   case cited above also involved a Turkish driver who drove a lorry registered in the Netherlands, but that did not prevent
      the Court from setting other criteria. 
      
         			(16)
         		 It is true that in the  
       Lopes da Veiga  
      
         			(17)
         		 judgment the Court mentioned the fact that the claimant, a Portuguese national, worked on board a vessel registered in the
      Netherlands, but it indicated five other  
      circumstances to the national court to be taken into account when deciding whether the employment relationship of the applicant had a sufficiently
      close connection with the territory of the Netherlands to justify the grant of a work permit, namely the fact that the applicant
      worked for a shipping company whose registered office was in the Netherlands, that he had been hired in the Netherlands, that
      the employment relationship between him and his employer was subject to Netherlands law, that he was insured under the social
      security system of the Netherlands and that he paid income tax there. 
      
      90.  Nor, in my opinion, does the fact that the activities of the Turkish drivers had previously been in compliance with German
      legislation justify an  
       ad hoc  solution.
      
      91.  They benefited from the special regime granted by the Federal Republic of Germany to all drivers in international haulage
      and not just to drivers of Turkish nationality.
      
      92.  As regards work permits, these were only issued on a temporary basis to allow the undertaking to adapt to the new legislation.
      
      
      93.  For all these reasons, I suggest to the Court that the second question raised in Case C-317/01 and the third question raised
      in Case C-369/01 be answered as follows:Article 13 of Decision No 1/80 does not apply to Turkish workers employed by an employer with its seat in Turkey and who,
      as long-distance lorry drivers engaged in international haulage, regularly pass through a Member State of the Community without
      belonging to the legitimate labour force of that Member State.
      
      
      
      C ─
       Part (b) of the third question referred for a preliminary ruling in Case C-317/01 and of the first question referred in Case
      C-369/01
      
      94.  The wording of these questions is almost identical. They fall to be analysed and answered in the same way. They are respectively
      worded as follows:Case C-317/01: Is Article 41(1) of the Additional Protocol ... to be interpreted as meaning that:...(b) a new restriction on the freedom to provide services also exists where a Member State of the Community, from the entry
      into force of the Additional Protocol, restricts the access of Turkish workers to the employment market and thereby impedes
      the freedom to provide services of businessmen employing the workers?Case C-369/01: Is Article 41(1) of the Additional Protocol ... to be interpreted as meaning: ...(b) that there is also a restriction on the freedom to provide services where a Member State of the Community abolishes an
      existing work permit exemption for Turkish drivers engaged in international haulage who are employed by a (Turkish) employer
      with its seat in Turkey?
       1. Opinion of the national courts and arguments raised before the Court
      
      95.  The  
       Eleventh Chamber   of the Bundessozialgericht considers that it is uncertain whether there is a restriction on the freedom to provide services
      within the meaning of Article 41(1), even if the introduction of provisions such as those in question indirectly impedes the
      freedom of undertakings employing those workers to provide services.
      
      96.  The  
       Seventh Chamber   of the Bundessozialgericht asks whether measures of the kind at issue in the case are generally to be regarded as  
      restrictions within the meaning of Article 41. It adds that it could also be relevant in the present case to know whether the inability
      of the workers to rely on Article 41 presupposes that the workers concerned are employees of a Turkish employer only or whether
      another (German) employer may also be involved, in whatever form, in the employment relationship. It takes the view that a
      measure cannot automatically be regarded as a new restriction if it affects, as a businessman, only a German national who
      is resident in Germany. The question in the case is whether Mr Sahin, who has been a German citizen since 1991, has the right
      to take on Turkish drivers who no longer have work permits. 
      
      97.  The  
       Turkish long-distance lorry drivers,   who are the claimants in Case C-317/01, take the view that the imposition of a requirement for a work permit for an activity
      that had previously been exempted restricts the freedom of Turkish haulage undertakings to provide services in the territory
      of a Member State. 
      
      98.  For his part,  
       Mr Sahin   considers that the freedom to provide services must include the possibility for an undertaking to assign personnel to carry
      out its activities and that the introduction into national legislation of more restrictive measures such as those in issue
      in the present case is capable of imposing an obstacle to the provision of services, in breach of Article 41(1) of the Protocol.
      Mr Sahin claims that the activity of an undertaking, seen from an international perspective, does not consist only in the
      intervention of the provider of services in person, but also in the carrying-out of an activity by employees. 
      
      99.  Mr Sahin goes on to analyse the particular characteristics of the market in the international haulage of goods sector, in
      particular to the Middle East. He maintains that long-distance international goods haulage inevitably involves the carrying-out
      of activities in a market that is split between undertakings subject to different legal regimes and which, accordingly, provide
      their employees with different income and social benefits depending on the legal rules and factual conditions applying in
      the State they come under. Undertakings in third countries may rely on having lower salary overheads, but can more easily
      find a workforce in the labour markets to which they have access which, in light of national economic difficulties, is ready
      to accept being separated from family members during lengthy periods and which has the knowledge of languages necessary for
      journeys going as far as Turkey, or even to countries such as Iran, Jordan or Egypt.
      
      100.  For its part, the  
       German Government   considers that Article 41(1) of the Protocol does not preclude amending legislation of the kind in issue in the main proceedings,
      the provisions governing the freedom to provide services under the EEC-Turkey Association having a narrower scope than the
      rules applying in this respect in the European Union. 
      
      101.  The  
       French Government   considers that the provisions relating to the freedom to provide services in Article 41(1) do not apply in a situation where
      a Turkish haulage undertaking which is a subsidiary of a company registered in Germany uses vehicles registered in Germany
      in its parent's name to provide haulage services between Turkey and Germany. As the Turkish undertaking used vehicles registered
      in Germany, the authorities of that Member State were entitled to take the view that the international haulage in question
      had in reality been provided by the German parent company and that, as a result, the Turkish long-distance lorry drivers were
      required to have a work permit in Germany. Article 41(1) of the Protocol does not apply to such a situation. Moreover, any
      other interpretation would, in the French Government's opinion, allow German haulage companies to avoid German employment
      law by allowing their Turkish subsidiaries to use the parent's vehicles to provide haulage to Germany. 
      
      102.  The  
       Netherlands Government   considers that Article 41 of the Additional Protocol is not the right reference point for the present case, which relates
      to transport services. In the EC Treaty, these services are expressly excluded from the freedom to provide services and are
      subject to a separate regime. The Court has recognised that the provisions on services do not apply to transport services. 
      
         			(18)
         		 Article 42 of the Additional Protocol, which states that  
      [t]he Council of Association shall extend to Turkey ... the transport provisions of the Treaty ..., confirms that the general regime relating to the provision of services does not apply to transport.
      
      103.  Even if Article 41 were to apply to the present cases, the Netherlands Government takes the view that Article 41(1) must be
      interpreted so as not to render illusory the powers of Member States in the field of the free movement of workers. Member
      States have reserved all powers to regulate the access of Turkish nationals both to their territory and to their labour market,
      so as to protect the stability of their labour markets. These powers would become illusory if measures that Member States
      can take in the context of the free movement of workers were to be prohibited in the context of the freedom to provide services.
      
      104.  For the  
       Commission,   on the other hand, the standstill clause under Article 41 of the Protocol precludes the adoption of national legislation which
      abolishes an exemption from the requirement to obtain work permits previously enjoyed by Turkish drivers engaged in international
      goods haulage using lorries registered in the Member State concerned. The requirement to obtain a work permit for each driver,
      and,  
       a fortiori   the refusal of such a permit, would hinder the freedom to provide services.
      
      105.  The Commission also does not accept that the present case involves transport services.
       2. Assessment
      
      106.  I shall first consider the argument put forward by the Netherlands Government and shall then turn to the other arguments discussed
      during the proceedings before the Court.(a) Does Article 41(1) apply to transport services? Is this sector covered by these measures?
      
      107.  As mentioned above, the Netherlands Government considers that Article 41(1) of the Additional Protocol is not the right reference
      point for the present case, given that the legislation in question relates to the transport sector. In the EC Treaty, those
      activities are expressly excluded from the freedom to provide services. Article 61(1) of the EC Treaty (now, after amendment,
      Article 51(1) EC) states that:Freedom to provide services in the field of transport shall be governed by the provisions of the Title relating to transport.
      
      108.  Even as regards relations between Member States it is not possible purely and simply to apply the provisions of the Treaty
      relating to the freedom to provide services to the transport sector.
      
      109.  As regards relations with the Turkish Republic, the relevant texts are Articles 14 and 15 of the Association Agreement and
      Article 42 of the Additional Protocol. 
      
      110.  In terms of Article 14,  
      [t]he Contracting Parties agree to be guided by Articles 55, 56 and 58 to 65 of the Treaty establishing the Community for
      the purpose of abolishing restrictions on the freedom to provide services between them.
      
      111.  Article 61 of the Treaty thus appears among the provisions by which the Contracting Parties are to be guided. It follows that
      an analogy should not be drawn that does not also take this article into account. 
      
      112.  Article 15 of the Association Agreement states that:The rules and conditions for extension to Turkey of the transport provisions contained in the Treaty establishing the Community,
      and measures adopted in implementation of those provisions shall be laid down with due regard to the geographical situation
      of Turkey.
      
      113.  Lastly, Article 42(1) of the Additional Protocol reads as follows:The Council of Association shall extend to Turkey, in accordance with rules which it shall determine, the transport provisions
      of the Treaty establishing the Community with due regard to the geographical situation of Turkey. In the same way it may extend
      to Turkey the measures taken by the Community in applying those provisions in respect of transport by rail, road and inland
      waterway.
      
      114.  No measure of which I am aware has been adopted by the Association Council on the basis of these provisions. 
      
      115.  Faced with this situation, it would be possible to object that, even if the abolition of restrictions on the freedom to provide
      services in the transport sector must be carried out by way of an extension of the common transport policy to Turkey, the
       
      standstill clause nevertheless applies to this sector.
      
      116.  However, that is not the case. This clearly follows from the judgment in the  
       Corsica Ferries France   case, 
      
         			(19)
         		 to which the Netherlands Government has drawn attention. 
      
      117.  That case involved a tax levied on passengers disembarking and embarking and passengers in transit at Corsican ports. The
      ferry company was liable for payment of the tax. Ships plying between Corsica and ports in continental France were required
      to pay the tax only when leaving the Corsican port, whereas ships plying between Corsica and ports situated in another State
      were liable to the tax both on arrival at and departure from the Corsican port. 
      
      118.  At paragraphs 14 and 15 of the judgment, the Court stated that: 
      
      14
         
       ... in 1981 and 1982, the period at issue in the main proceedings, freedom to provide services in maritime transport had not
      yet been implemented and ... consequently the Member States were entitled to apply provisions such as those at issue in the
      main proceedings.
      
      
      15
         
       That conclusion is not weakened by the fact that those rules were  
       reintroduced   into the French code des ports maritimes ...  
       after having been repealed   in 1969. In light of the existence of Article 61(1) of the Treaty, Article 62, which  
       prohibits   the Member States from introducing  
       any new restrictions   on the freedom to provide services which had in fact been attained at the date of entry into force of the Treaty,  
       does not apply .
       
      
         			(20)
         		
      119.  It can therefore likewise be concluded that the  
      standstill clause in Article 41(1) of the Additional Protocol has no application to the transport sector.
      
      120.  It remains to be discussed whether the provision in dispute falls within that sector.
      
      121.  The Commission objects that the German legislation in dispute has no connection with the transport sector given that, in reality,
      what is involved is the making available of drivers or the hiring of lorries. The connection with the transport sector is
      no more direct than it would be in the case of the purchase of a lorry. 
      
      122.  In my opinion, however, there are serious objections to this argument.
      
      123.  It should be noted first of all that if, in the  
       Corsica Ferries France   case, cited above, the Court was able to hold that a tax fell within the transport sector which was not levied on passengers
      disembarking in Corsica from continental France, while it was levied on all other disembarkations and embarkations, the same
      should  
       a fortiori   apply to a rule concerning  
      travelling personnel in the international carriage of passengers and goods. 
      
      124.  There is no doubt that the exemption from the requirement to obtain a work permit under the German regulation of 1971, by
      way of exception to the rules normally applying to nationals of third countries, arose because of the particular features
      of international transport and in particular because non-German  
      travelling personnel only spend a limited time in Germany and do not aspire to be integrated into the local labour market. 
      
         			(21)
         		
      125.  In other words, the people in question only benefited from those particular rules because they were directly involved in a
      transport activity. 
      
      126.  Secondly, the matter which gave rise to the problem for the claimants in the main proceedings was the fact that, from 1996,
      the exemption from the requirement to have a work permit was no longer granted where the  
       lorry   used was not registered in the State in which the employer was established, but in Germany. A rule which depends on the place
      where lorries are registered relates, in my opinion, to the transport sector. 
      
      127.  Thirdly, there require to be taken into account the implications of Regulation (EC) No 484/2002 of the European Parliament
      and of the Council of 1 March 2002 amending Council Regulations (EEC) No 881/92 and (EEC) No 3118/93 for the purposes of establishing
      a driver attestation. 
      
         			(22)
         		
      128.  Council Regulation (EEC) No 881/92 of 26 March 1992 concerns access to the market in the carriage of goods by road within
      the Community to or from the territory of a Member State or passing across the territory of one or more Member States. 
      
         			(23)
         		
      129.  This regulation, and Regulation No 484/2002 are both based on Article 75 of the EC Treaty (now, after amendment, Article 71
      EC) which appears in the title relating to transport (Title IV, now Title V).
      
      130.  As amended by Regulation No 484/2002, Regulation No 881/92 provides, in summary, at Article 3(1) that international carriage
      is to be carried out subject to Community authorisation in conjunction with a driver attestation if the driver is a national
      of a non-member country. 
      
      131.  Article 3(3) of Regulation No 881/92, inserted by Regulation No 484/2002, states that: 
      3.  A driver attestation shall be issued by a Member State ... to any haulier who:
      
      
      ─
      is the holder of a Community authorisation,  
      
      
      
      ─
      in that Member State lawfully  
      employs  drivers who are nationals of non-member countries or lawfully uses drivers who are nationals of non-member countries  
      put at his disposal  in accordance with the conditions of employment and of vocational training laid down in that same Member State: 
      
      
      
      24
      Author's emphasis. 
      
      
      
      ─
      by laws, regulations or administrative provisions, and, as appropriate,  
      
      
      
      ─
      by collective agreements, in accordance with the rules applicable in that Member State. 
      
      
      
      132.  This regulation not only creates an attestation (which will only become compulsory from 19 March 2003), but also lays down
      the principle that drivers who are nationals of third countries put at the disposal of a haulier in a Member State must be
      used lawfully, that is to say by observing the conditions of employment laid down by the same Member State for drivers of
      its own nationality or residing in its territory. I shall return to this point below.
      
      133.  I should emphasise that this regulation was adopted on the basis of Article 71 EC. It follows that legislation such as that
      at issue in the present case also comes within the transport sector. 
      
      134.  I therefore suggest that the Court makes as its primary finding that Article 41(1) of the Additional Protocol does not apply
      to national legislation covering the transport sector, of the kind in issue in the main proceedings. 
      
      135.  It is only in the alternative that I shall consider the other arguments raised in debate and which are based on the opposite
      hypothesis.
       (b) Concerning the existence of a new restriction on the freedom to provide services
      
      136.  It should first of all be noted what the principle of the freedom to provide services represents. According to Article 60
      of the EC Treaty (now Article 50 EC),  
      the person providing a service may, in order to do so, temporarily pursue his activity in the State where the service is provided,
      under the same conditions as are imposed by that State on its own nationals. 
      
      137.  Considered in conjunction with the  
      standstill clause, this principle means, in the first place, that the Turkish Republic may not impose new restrictions on temporary
      activities that German undertakings wish to carry out in Turkey. However, this issue does not arise in the present cases.
      
      
      138.  For its part, the Federal Republic of Germany cannot create new impediments to activities that Turkish road haulage undertakings
      wish to carry out in Germany. 
      
      139.  It is not however clear whether, in the main proceedings, the international haulage services are provided in the name and
      under the responsibility of Turkish undertakings that are subsidiaries of German companies or under the responsibility of
      the German companies themselves. I therefore need to consider both possibilities. 
       (i) Carriage is provided in the name and under the responsibility of a Turkish undertaking
      
      140.  Two possibilities may be distinguished.
       ─ The Turkish undertaking provides carriage using its own lorries and its own drivers
      
      141.  This is a typical example of the provision of cross-border haulage services.
      
      142.  The Federal Republic of Germany does not impose any obstacles to this as it grants an exemption from the requirement to have
      a work permit to  
      travelling personnel working in ... international carriage ... for employers with registered offices abroad, where the vehicle
      is registered in the State of the employer's registered office. 
      
         			(25)
         		
      143.  It should however be noted that a Turkish undertaking providing carriage using its own lorries may be faced with a limit on
      the number of journeys it may make each year. The bilateral treaties usually provide that limits are to be calculated on an
      annual basis. Limits such as these also applied between Member States until the entry into force of Regulation No 881/92.
      
      
      144.  Since then, however, owners of lorries registered in a Member State may obtain licences authorising them to undertake an unlimited
      number of journeys each year. That may explain the attraction of these lorries for Turkish undertakings.
       ─ The Turkish undertaking provides carriage using its own drivers but with lorries which belong to a German undertaking and
      which are registered in Germany
      
      145.  This corresponds to one of the two possible situations which, according to the Commission, may arise in the present case,
      namely that of a hiring of the lorries by the German undertaking to the Turkish undertaking.
      
      146.  In that case, according to the German legislation in question, drivers who are nationals of third countries are no longer
      entitled to an exemption from the requirement to have a work permit in Germany, because the lorry is not registered in the
      State in which the employer has its registered office.
      
      147.  At the hearing, the German Government emphasised that from a time well before the entry into force of the Additional Protocol
      undertakings established in third countries had not been granted authorisation to provide haulage services on German territory
      if their lorries were not registered in the country in which they were established. The Federal Republic of Germany had therefore
      not introduced any  
       new   restriction as regards rights relating to Turkish undertakings, but was instead better able subsequently to enforce, through
      the medium of work permits, an old rule that had often been disregarded in the past.
      
      148.  If the Court does not share my primary conclusion, it would be a matter for the national courts to reach a finding in fact
      in relation to this question, which is clearly a decisive one. 
      
      149.  In the same context, it should be pointed out that if a German undertaking were to put its lorry at the disposal of a Turkish
      undertaking together with the corresponding licence, it would be in breach of Community law. 
      
      150.  In its recent judgment in  
       Bourrasse and Perchicot , 
      
         			(26)
         		 the Court confirmed that, even inside the Community, the free movement of a lorry hired by an undertaking in a Member State
      to an undertaking established in another Member State is permitted only under certain conditions. The same must apply  
       a fortiori   where the hiring is made to a transport undertaking established in a non-member country.
      
      151.  In that judgment, the Court stated as follows: 
      
      34
         
       As regards carriage authorisations, according to the combined provisions of Articles 1(1) and 3(1) of Regulation No 881/92,
      a Community authorisation is required to carry out the international carriage of goods by road for hire or reward within the
      territory of the Community and, pursuant to Article 5(1) and (2) of the same regulation, that authorisation is to be issued
      by the authorities of the Member State in which the transport undertaking is established, which will issue the holder with
      the original and the number of certified true copies of the authorisation corresponding to the number of vehicles at the disposal
      of the holder, including those held under hire contracts. Consequently, it is for the lessee not the lessor to obtain a Community
      authorisation for the hired vehicles from the authorities of the Member State in which he is established. 
      
      
      35
         
       Furthermore, under Article 5(4) of Regulation No 881/92, the Community authorisation is to be made out in the haulier's name
      and he may not transfer it to any third party. It follows that where vehicles originally used by a road haulier holding a
      Community authorisation are then hired out to another road haulier, the lessor is not entitled to transfer the benefit of
      his own Community authorisation to the lessee.
      
      
      152.  In its further reasoning in that judgment, the Court went on to state that under Article 2(1) of Council Directive 84/647/EEC
      of 19 December 1984 on the use of vehicles hired without drivers for the carriage of goods by road, 
      
         			(27)
         		 as amended by Council Directive 90/398/EEC of 24 July 1990, 
      
         			(28)
         		each Member State is to allow the use within its territory of vehicles hired by undertakings established on the territory
      of another Member State provided that,  
       inter alia , the vehicles are registered or put into circulation in compliance with the laws in the Member State in which the haulier
      lessee is established (paragraph 40 of the judgment). 
      
      153.  The French Government has pointed out also that the agreements entered into between the Community and third countries such
      as the Republic of Hungary 
      
         			(29)
         		 also provide that a transport company established in Hungary which provides transport services between Hungary and the Community
      must use motor vehicles that are registered in Hungary. 
      
      154.  It therefore appears that if the legal relationship in the main proceedings involved the hiring of lorries by a German undertaking
      to a Turkish undertaking ─ which is a matter for the national courts to determine ─ the use of these lorries by the Turkish
      undertaking on German territory would amount to an illegal practice. 
      
      155.  The principle of the freedom to provide services may not be relied upon in support of illegal activities and the fact that
      Turkish workers driving those lorries would be required to obtain a German work permit could not amount to a restriction on
      the freedom to provide services. Article 41(1) of the Additional Protocol would quite simply not apply.
       (ii) Carriage is provided in the name and under the responsibility of a German undertaking
      
      156.  In that case, the status of the drivers may be covered by two possible situations.
       ─ The Turkish drivers are taken on by the German undertaking directly
      
      157.  It appears from the second question raised in Case C-317/01 and the third question raised in Case C-369/01 that the national
      courts are of the view that the Turkish workers do not belong to the legitimate labour force in Germany.
      
      158.  In its statement of grounds, the Seventh Chamber of the Bundessozialgericht states however that  
      the necessary findings of fact which would enable a conclusion to be reached as to who the drivers' employer is have so far
      been lacking. It goes on to ask whether it is relevant  
      whether the workers concerned are employees of a Turkish employer only or whether another (German) employer may be involved,
      in whatever form, in the employment relationship. 
      
      159.  I should point out in that regard that according to the Court's settled case-law the essential feature of an employment relationship
      is that for a certain period of time a person performs services for and under the direction of another person in return for
      which he receives remuneration. 
      
         			(30)
         		
      160.  In the present case, it may be assumed that the true position is that the drivers are principally given their instructions
      by German undertakings, but it has not been suggested that they are also paid by them.
      
      161.  It is therefore unlikely that they may be considered to be employees of German undertakings. However, as there is a doubt,
      it is necessary to consider the situation that would arise if the Turkish drivers were in fact employees of the German undertaking.
      
      162.  The question therefore is whether the fact that the German authorities require the Turkish drivers to have a work permit amounts
      to a restriction on the freedom to provide services  
       to the prejudice of the German haulage undertaking   if the latter is the employer of the drivers.
      
      163.  I am of the view that this question falls to be answered in the negative.
      
      164.  It should be noted in this regard that, to the extent that the requirement to have a work permit, imposed by the German authorities,
      affects German haulage undertakings, that can, seen from the perspective of the freedom to provide services, amount at its
      highest to an obstacle to the  
       exporting   of services by those undertakings. 
      
      165.  An obstacle to the freedom to export services was in issue in the  
       Corsica Ferries France   case, cited above. Before addressing the question dealt with above of the application of the provisions relating to the freedom
      to provide services to the transport sector, the Court held that  
      ... the French legislation at issue in the main proceedings may constitute a restriction on freedom to provide services within
      the Community within the meaning of the first paragraph of Article 59 of the EEC Treaty in so far as it  
       discriminates   between persons providing transport services between a port situated in national territory and a port situated in another
      Member State of the Community and persons providing transport services between two ports situated in national territory. 
      
         			(31)
         		
      166.  In the present case, the German legislation is not discriminatory. The requirement to have a work permit affects haulage operations
      in the same way, whether the German undertaking is providing transport within Germany, to another Member State or to Turkey.
      
      167.  A measure of this kind, adopted by a Member State, which affects without distinction the provision by its own nationals of
      services within the Member State, on the one hand, and the export by the same nationals of the same services to another Member
      State or, as in the present case, to Turkey, on the other hand, does not constitute an obstacle to the freedom to provide
      services.
      
      168.  I am of the view that it is appropriate to apply by analogy the case-law of the Court relating to the free movement of goods.
      
      
      169.  As regards Article 30 of the EC Treaty (now, after amendment, Article 28 EC), which relates to restrictions on imports, the
      Court held at paragraph 5 of the  
       Dassonville  
      
         			(32)
         		 judgment that  
      [a]ll trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially,
      intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions. The same broad definition of the concept of restrictions applies to the freedom to provide services, including imports of
      services, as is shown  
       inter alia  by paragraph 29 of the  
       De Coster  
      
         			(33)
         		 judgment, which states that  
      Article 59 of the Treaty requires not only the elimination of all discrimination on grounds of nationality against providers
      of services who are established in another Member State, but also the abolition of any restriction, even if it applies without
      distinction to national providers of services and to those of other Member States, which is liable to prohibit or further
      impede the activities of a provider of services established in another Member State where he lawfully provides similar services
      (see Case C-76/90  
       Säger  [1991] ECR I-4221, paragraph 12; Case C-43/93  
       Vander Elst  [1994] ECR I-3803, paragraph 14).
      
      170.  On the other hand, as regards Article 34 of the EC Treaty (now, after amendment, Article 29 EC), which deals with restrictions
      on exports, the Court held in the  
       Groenveld  
      
         			(34)
         		 judgment that  
      [t]hat provision concerns national measures which have as their specific object or effect the  
       restriction of patterns of exports   and thereby the establishment of a difference in treatment between the domestic trade of a Member State and its export trade
      in such a way as to provide a particular advantage for national production or for the domestic market of the State in question
      at the expense of the production or of the trade of other Member States .... 
      
         			(35)
         		
      171.  Similarly, it is wrong in my opinion to treat national legislation as imposing an obstacle to the freedom to provide services
      unless it affects the import of services in a different way from that in which it affects the provision of services within
      the Member State.
      
      172.  Any other interpretation would have the result that the smallest obligation imposed by a Member State on its own nationals
      who are involved in the provision of services would amount to an obstacle to the freedom to provide services, as every one
      of those nationals would be a potential exporter of services. Such an argument would leave no place for situations confined
      to the territory of a single Member State, whereas it is settled case-law that  
      ... the provisions of the Treaty on freedom to provide services cannot apply to activities whose relevant elements are confined
      within a single Member State .... 
      
         			(36)
         		
      173.  It follows from all the above that the fact that the German authorities require that Turkish drivers obtain a work permit
      cannot amount to an obstacle to the provision of cross-border services by German carriers who employ the drivers in question.
      Article 41(1) of the Additional Protocol does not apply in the circumstances considered above. 
       ─ The Turkish drivers are taken on and paid by a Turkish undertaking
      
      174.  Since we are proceeding on the assumption of haulage operations for which the German undertaking is responsible, now dealing
      with another form of the provision of services, which may be termed the making available of drivers. This is the second possible
      situation which the Commission suggests may arise in the main proceedings in this case. 
      
      175.  The Turkish undertaking would act, so to speak, as an employment agency. I say  
      so to speak intentionally, as it became clear at the hearing that there are, in fact, neither contracts for the provision of drivers
      nor contracts for the hiring of lorries. According to the claimants in the main proceedings, the actual circumstances may
      simply be analysed from either point of view.
      
      176.  The question is therefore whether the exemption from the requirement to obtain a work permit, coupled with a systematic refusal
      to grant one, creates a new restriction on the freedom to provide services, which consist in the provision of drivers of Turkish
      nationality by a Turkish undertaking to a German haulage company. 
      
      177.  In this regard, the German Government stated at the hearing that until 1972 there was in Germany a prohibition on making workers
      available (
      Leiharbeit) to an undertaking. This prohibition was subsequently removed, subject to certain conditions as far as German workers and
      workers from other Member States were concerned. It was retained for workers from third countries, including Turkish workers.
      
      
      178.  According to the German Government, it follows that as the making available of Turkish workers by a Turkish undertaking to
      a German undertaking was prohibited before the entry into force of the Additional Protocol, no  
       new   restriction was introduced by the abolition of the exemption of the requirement to obtain a work permit and a systematic refusal
      to grant one. Even when a work permit was not required, the making available of Turkish workers was not lawful. 
      
      179.  If that were indeed the case, and it will be a matter for the national court to verify the point, if relevant, the question
      whether the requirement to obtain a work permit constitutes a restriction does not arise. I do not see in what way the requirement
      to have a work permit could constitute a restriction if the activity has always been prohibited and remains prohibited. 
      
      180.  In the alternative, and supposing that the making available of drivers were, nevertheless, allowable in principle, the question
      still arises as to whether, in fact, the circumstances involve the provision of services within the meaning of Article 50
      EC.
      
      181.  It is necessary to ask whether the making available of drivers was really carried out  
      temporarily (following the expression used in Article 50 EC). It will be for the national courts to carry out the necessary factual analysis.
      
      
      182.  They could refer in this regard to the  
       Gebhard  
      
         			(37)
         		 judgment, where the Court stated that  
      the temporary nature of the activities in question has to be determined in the light, not only of the duration of the provision
      of the service, but also of its regularity, periodicity or continuity.
      
      183.  The Court's case-law also allows Member States to prevent the pseudo-provision of services. Thus,  
      ... a Member State cannot be denied the right to take measures to prevent the exercise by a person providing services whose
      activity is entirely or principally directed towards its territory of the freedom guaranteed by Article 59 for the purpose
      of avoiding the professional rules of conduct which would be applicable to him were he established in that State .... 
      
         			(38)
         		
      184.  Reference should also be made to the judgment in the  
       Rush Portuguesa  
      
         			(39)
         		 case. This states:It should be stated that, since the concept of the provision of services as defined by Article 60 of the Treaty covers very
      different activities, the same conclusions are not necessarily appropriate in all cases. In particular, it must be acknowledged,
      as the French Government has argued, that an undertaking engaged in the making available of labour, although a supplier of
      services within the meaning of the Treaty, carries on activities which are specifically intended to enable workers to gain
      access to the labour market of the host State. In such a case, Article 216 of the Act of Accession would preclude the making
      available of workers from Portugal by an undertaking providing services.
      
      185.  In the present case, the Turkish undertaking admittedly does not seek to gain access for the workers to the German labour
      market in the sense of integrating them into that market, but the situation is quite close to this, as German lorries are
      being driven under instructions given by a German undertaking. As the Netherlands Government pointed out, Article 41(1) needs
      to be interpreted so as not to render illusory the powers retained by Member States to regulate access by Turkish nationals
      both to their territory and to their labour market.
      
      186.  Lastly, in this context, the Court's case-law should not be overlooked,  according to which  
      ... Community law does not preclude Member States from extending their legislation, or collective labour agreements entered
      into by both sides of industry, to any person who is employed, even temporarily, within their territory, no matter in which
      country the employer is established; nor does Community law prohibit Member States from enforcing those rules by appropriate
      means (Joined Cases 62/81 and 63/81  
       Seco and Desquenne  [1982] ECR 223). 
      
         			(40)
         		
      187.  Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in
      the framework of the provision of services 
      
         			(41)
         		 provides for its part that where workers are posted from one Member State to another, and whatever the law applicable to
      the employment relationship, there shall be applied to those workers the terms and conditions of employment, including the
      national minimum rates of pay, which, in the Member States where the work is carried out, are laid down:
       ─ by law, regulation or administrative action, and/or
      ─ by collective agreements.Article 1(4) of that directive states, moreover, that  
      [u]ndertakings established in a non-member State must not be given more favourable treatment than undertakings established
      in a Member State.
      188.  Although those rules did not become binding until 16 December 1999, there was nothing to prevent a Member State from applying
      them voluntarily before that date. As is stated in the  
       Rush Portuguesa   judgment, the terms of which are repeated word for word in the 12th recital of that directive,  
      Community law does not preclude Member States from applying their legislation. 
      
      189.  Reference should finally be made once again to Regulation No 484/2002, which expressly applies the same principles to road
      transport operations.
      
      190.  It follows that, to the extent that the requirement to obtain a work permit represents a method of verification of compliance
      with national legislation in the field of employment law and social law, compliance which Member States are entitled to demand
      under the case-law and legislation referred to above, this requirement is in my view equally justified by an overriding reason
      relating to the public interest.
      
      191.  I should point out again, however, that the foregoing line of reasoning has been provided in the alternative. I propose therefore
      to reply to part (b) of the third question raised in Case C-317/01 and to the first question raised in Case C-369/01 to the
      effect that Article 41(1) of the Additional Protocol must be interpreted as meaning that it does not apply to national legislation
      in the field of road transport operations of the kind in issue in the main proceedings.
      
      
      
      D ─
       Part (a) of the third question referred for a preliminary ruling in Case C-317/01 and part (a) of the first question referred
      for a preliminary ruling in Case C-369/01
      
      192.  These questions are identical and fall to be answered in the same way. The wording is as follows: Is Article 41(1) of the Additional Protocol ... to be interpreted as meaning that(a) a Turkish worker is entitled to plead a restriction on the freedom to provide services which is contrary to the Additional
      Protocol ...?
      
      193.  The Turkish drivers take the view that they may rely on Article 41(1) of the Additional Protocol, on the basis that the measure
      restricts the freedom of Turkish transport undertakings to provide services in the territory of a Member State and to that
      extent also affects the legal situation of the employees of those undertakings. 
      
      194.  For the German Government and for the Commission, Article 41(1) of the Protocol cannot be relied on by the workers. In the
      Commission's opinion, only an employer established in Turkey may raise a breach of this provision of the EEC-Turkey Agreement
      before a national court. Such a right is not available to Turkish workers whose employer is established in Turkey nor to an
      undertaking established in the Member State concerned and which is connected to the Turkish employer through a contract for
      services. 
      
      195.  The Netherlands Government considers for its part that it follows by analogy with the judgment in the  
       Clean Car Autoservice   case 
      
         			(42)
         		 that a measure having direct effect, such as Article 41 of the Protocol, may be relied on not only by the direct beneficiaries
      of rights under it (in the present case, as far as the freedom to provide services is concerned, the employers), but also
      by others, and in particular by workers employed by those employers. 
      
      196.  The French Government doubts that the Court's reasoning in the  
       Clean Car Autoservice   case 
      
         			(43)
         		 may be applied in these cases, and that a worker who is employed in Turkey is entitled to rely on the  
      standstill clause relating to the freedom to provide services appearing in the Additional Protocol to the Agreement. Firstly, Community
      law does not regulate the terms and conditions on which Turkish workers are taken on by employers in that country. Secondly,
      the taking-on of the workers in question by Turkish employers is not necessarily connected to the right the latter have to
      provide services to the Community. As it is of the view that Article 41(1) of the Additional Protocol only applies to freedom
      of establishment and the freedom to provide services, and not to access to employment, the French Government considers that
      the provision applies primarily to undertakings and not to their employees.
      
      197.  I mentioned above that in my opinion Article 41(1) did not apply to circumstances such as those arising in the main proceedings.
      
      198.  It is therefore only in the alternative that I shall consider this question.
      
      199.  It follows from the Court's judgment in the  
       Savas   case 
      
         			(44)
         		 that  
      Article 41(1) has direct effect in Member States. Were it to apply in circumstances such as those arising in the main proceedings, it could therefore be relied upon by Turkish
      undertakings which make drivers available to German undertakings.
      
      200.  I am of the view that it may also be relied upon by those drivers. 
      
      201.  In the  
       Clean Car Autoservice   judgment, the Court held that an employer who wishes to take on as a manager a person previously residing in another Member
      State could rely on the principle of equal treatment in the field of the freedom of movement for workers, laid down under
      Article 48 of the EC Treaty (now, after amendment, Article 39 EC) equally as much as the manager himself. 
      
      202.  The Court stated in this regard that: 
      
      20
         
       ... in order to be truly effective, the right of workers to be engaged and employed without discrimination  
       necessarily   entails  
       as a corollary   the employer's entitlement to engage them in accordance with the rules governing freedom of movement for workers. 
      
      
      21
         
       Those rules could easily be rendered nugatory if Member States could circumvent the prohibitions which they contain merely
      by imposing on employers requirements to be met by any worker whom they wish to employ which, if imposed directly on the worker,
      would constitute restrictions on the exercise of the right to freedom of movement to which that worker is entitled under Article 48
      of the Treaty.
      
      
      203.  I consider that an analogous reasoning, which might be termed  
      mirror reasoning, may apply where a person providing services is unable to undertake a cross-border activity by reason of obstacles
      imposed in relation to the workers he may employ. 
      
      204.  To paraphrase the  
       Clean Car Autoservice   judgment, one might say that in order to be truly effective, the right of undertakings to provide services without discrimination
      necessarily entails as a corollary the workers' entitlement to carry out the duties entrusted to them in the field of service
      provision. The rules relating to the freedom to provide services could easily be rendered nugatory if Member States could
      circumvent the prohibitions which they contain merely by imposing on workers requirements to be met in order to carry out
      their duties as employees which, if imposed directly on the undertakings which employed them, would constitute restrictions
      on the exercise of the right to the freedom to provide services to which they are entitled.
      
      205.  In the circumstances, however, no intra-Community dimension is involved. The freedom to provide services is not exercised
      between the Community and the Republic of Turkey. It follows that Turkish workers may not rely on their employer's entitlement
      not to have imposed on them a  
       new   restriction on the provision of cross-border services they might wish to offer.
      
      206.  I therefore propose that the Court should answer the question raised by finding that to the extent that Article 41(1) of the
      Additional Protocol applies in circumstances such as those arising in the main proceedings, it must be interpreted as meaning
      that a Turkish worker is entitled to plead a new restriction on the freedom to provide services which his employer wishes
      to make available.
      
      
      
      E ─
       The second question referred for a preliminary ruling in Case C-369/01
      
      207.  This question reads as follows:Does such a restriction concern exclusively the freedom to provide services or does it also or solely concern conditions of
      access to employment within the meaning of Article 13 of Decision No 1/80 ...?
      
      208.  It follows from the reasoning set out above that neither Article 41(1) of the Additional Protocol nor Article 13 of Decision
      No 1/80 may be relied on in the present case. It is therefore unnecessary to answer this question.
      
      209.  I would add by way of  
       obiter dictum   that there is a solution that would avoid the Turkish drivers becoming unemployed and German undertakings having to take on
      drivers who are familiar neither with the Turkish language nor with local customs. It would consist in giving those drivers
      a work permit limited to the situation where they were employed by German undertakings under German employment and social
      security law.
       
      
      
      IV ─
       Conclusion
      
      210.  For the foregoing reasons, I propose that the Court should reply as follows to the questions referred by the Seventh and the
      Eleventh Chambers of the Bundessozialgericht:
      (1) Article 13 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council
      established by the EEC-Turkey Association Agreement of 1963, signed on 23 November 1970, must be interpreted as meaning that
      where, at any time after 1 December 1980, a Member State of the Community introduces new restrictions on access to the employment
      market for Turkish workers, those restrictions will not apply to Turkish workers who, at the time when the restrictions come
      into force, are already on the territory of and legally resident and employed in that Member State.  
      
      (2) Article 13 of Decision No 1/80 of the Association Council does not apply to Turkish workers employed by an employer with its
      seat in Turkey and who, as long-distance lorry drivers engaged in international haulage, regularly pass through a Member State
      of the Community without belonging to the legitimate labour force of that Member State. 
      
      (3) Article 41(1) of the Additional Protocol to the Agreement establishing an Association between the European Economic Community
      and Turkey must be interpreted as meaning that it does not apply to national legislation in the field of road transport operations
      of the kind in issue in the main proceedings. 
      
      (4) To the extent that Article 41(1) of the Additional Protocol applies in circumstances such as those arising in the main proceedings,
      it must be interpreted as meaning that a Turkish worker is entitled to plead a new restriction on the freedom to provide services
      which his employer wishes to make available. 
      
      
      
       1 –
         
           Original language: French.
      
      2 –
         
         The Additional Protocol was concluded, approved and confirmed by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ
            1972 L 293, p. 1).
         
      
      3 –
         
         The decision came into force on 1 July 1980. It was not published in the Official Journal, but may be consulted in a publication
            by the Office for the Official Publications of the European Communities:  
             Association Agreement and Protocols between the European Economic Community and Turkey and other basic texts , Brussels, 1992.
         
      
      4 –
         
         OJ 1973 C 113, p. 1.
      
      5 –
         
         Case C-1/97  
             Birden   [1998] ECR I-7747.
         
      
      6 –
         
         See Case C-192/89  
             Sevince   [1990] ECR I-3461. 
         
      
      7 –
         
         Case C-171/95 [1997] ECR I-329.
      
      8 –
         
         Case C-37/98 [2000] ECR I-2927.
      
      9 –
         
         Author's emphasis.
      
      10 –
         
         Subject always to the safeguards laid down by Article 12 of Decision No 1/80, which reads as follows: Where a Member State of the Community or Turkey experiences or is threatened with disturbances on its employment market which
            might seriously jeopardise the standard of living or level of employment in a particular region, branch of activity or occupation,
            th e State concerned may refrain from automatically applying Articles 6 and 7. The State concerned shall inform the Association
            Council of any such temporary restriction.
         
      
      11 –
         
         Case C-188/00 [2002] ECR I-10691 paragraph 68. 
      
      12 –
         
         . Kurz   judgment, cited above in footnote 10, paragraph 68. 
         
      
      13 –
         
         Author's emphasis.
      
      14 –
         
         See the judgment in the  
             Birden   case, cited above.
         
      
      15 –
         
         Cited above at point 68. In fact, the application of the rules set out in the  
             Bozkurt   judgment leads to the conclusion that these drivers belonged to the legitimate labour force in Turkey.
         
      
      16 –
         
         Paragraph 3 of the judgment mentions that in the intervals between his journeys and during his periods of leave, that driver
            lived in the Netherlands.
         
      
      17 –
         
         Case 9/88  [1989] ECR 2989, paragraph 17.
      
      18 –
         
         See Case C-49/89  
             Corsica Ferries France  [1989] ECR 4441. 
         
      
      19 –
         
         Cited above in footnote 18. 
      
      20 –
         
         Author's emphasis.
      
      21 –
         
         In the Netherlands as well, international lorry drivers were not covered by the general policy on aliens. See the  
             Bozkurt   judgment, cited above, paragraphs 4 and 5.
         
      
      22 –
         
         OJ 2002 L 76, p. 1.
      
      23 –
         
         OJ 1992 L 95, p. 1.
      
      24 –
         
         Author's emphasis.
      
      25 –
         
         Paragraph 9(2) of the AEVO, as amended, cited above at point 16. 
      
      26 –
         
         Joined Cases C-228/01 and C-289/01 [2002] ECR I-10213.
      
      27 –
         
         OJ 1984 L 335, p. 72. 
      
      28 –
         
         OJ 1990 L 202, p. 46.
      
      29 –
         
         That was also the interpretation of that regulation adopted by Advocate General Van Gerven in his Opinion in  
             Corsica Ferries Italia   (Case C-18/93 [1994] ECR I-1783, point 25).
         
      
      30 –
         
         See, in particular, Case 66/85  
             Lawrie-Blum   [1986] ECR 2121, paragraphs 16 and 17; Case C-85/96  
             Martínez Sala   [1998] ECR I-2691, paragraph 32; Case C-337/97  
             Meeusen   [1999] ECR I-3289; and  
             Kurz , cited above.
         
      
      31 –
         
         Paragraph 7 of the judgment, cited in footnote 18; author's emphasis.
      
      32 –
         
         Case 8/74 [1974] ECR 837.
      
      33 –
         
         Case C-17/00 [2001] ECR I-9445.
      
      34 –
         
         Case 15/79 [1979] ECR 3409, paragraph 7.
      
      35 –
         
         Author's emphasis. See also  
             inter alia  Case 237/82  
             Jongeneel Kaas and Others   [1984] ECR 483, paragraph 22; Case C-47/90  
             Delhaize and Le Lion   [1992] ECR I-3669, paragraph 12; and Case C-3/91  
             Exportur   [1992] ECR I-5529, paragraph 21.
         
      
      36 –
         
         Case 52/79  
             Debauve and Others   [1980] ECR 833, paragraph 9. See also Case C-41/90  
             Höfner and Elser   [1991] ECR I-1979, paragraph 37, and Case C-70/95  
             Sodemare and Others   [1997] ECR I-3395, paragraph 38.
         
      
      37 –
         
         Case C-55/94 [1995] ECR I-4165, paragraph 27.
      
      38 –
         
         Case 33/74  
             Van Binsbergen   [1974] ECR 1299, paragraph 13. See also Case 130/88  
             Van de Bijl   [1989] ECR 3039, paragraph 26; Case C-211/91  
             Commission   v  
             Belgium   [1992] ECR I-6757, paragraph 12; Case C-148/91  
             Veronica Omroep Organisatie   [1993] ECR I-487, paragraph 12; and Case C-23/93  
             TV 10   [1994] ECR I-4795, paragraph 20.
         
      
      39 –
         
         Case C-113/89  [1990] ECR I-1417, paragraph 16. 
      
      40 –
         
         Judgment in the  
             Rush Portuguesa   case, cited above in footnote 39.
         
      
      41 –
         
         OJ 1997 L 18, p. 1.
      
      42 –
         
         Case C-350/96 [1998] ECR I-2521.
      
      43 –
         
         Cited above in footnote 42. 
      
      44 –
         
         Cited above in footnote 8.