Wählergruppe "Gemeinsam Zajedno/Birlikte Alternative und Grüne GewerkschafterInnen/UG", and Bundesminister für Wirtschaft und Arbeit and Others.
Date: 2003-05-08
20.  Articles 7 and 8 of Regulation No 1612/68 are contained in Part I, dealing with   "Employment and Workers' Families"  , of Title II, entitled   "Employment and equality of treatment"  .
37.  The list of candidates lodged by Wählergruppe Gemeinsam originally comprised 26 candidates, including five Turkish nationals who, the parties agree, fulfilled all the conditions laid down in the third indent of Article 6(1) of Decision No 1/80 and were in possession of a   "Befreiungsschein"   (a certificate exempting the holder from the national provisions on the employment of foreigners) in accordance with Paragraph 4c of the Ausländerbeschäftigungsgesetz (Law on employment of foreigners).
53.  In order to provide a helpful answer to the question whether a provision in an agreement concluded between the Community and a non-member country which lays down a prohibition on discrimination on the grounds of nationality precludes a Member State from refusing, within the scope of the agreement, to grant a national of the non-member country a benefit on the sole ground that that person is a national of the non-member country, it is necessary to consider, first, whether the provision in question is, by its nature, such as to confer directly on an individual rights which he may assert before a court of a Member State and, if so, to determine, second, the scope of the prohibition of discrimination laid down by that provision (see, to that effect, Case C-18/90   Kziber   [1991] ECR I-199, paragraph 14; Case C-416/96   Eddline El-Yassini   [1999] ECR I-1209, paragraph 24; Case C-262/96   Sürül   [1999] ECR I-2685, paragraph 47; and Case C-162/00   Pokrzeptowicz-Meyer   [2002] ECR I-1049, paragraph 18).
The direct effect of Article 10(1) of Decision No 1/80
54.  According to the settled case-law of the Court, a provision in an agreement concluded by the Community with a non-member country must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure (see,   inter alia  , Case 12/86   Demirel   [1987] ECR 3719, paragraph 14; and the judgments, cited above, in   Kziber  , paragraph 15;   Eddline El-Yassini  , paragraph 25;   Sürül  , paragraph 60; and   Pokrzeptowicz-Meyer  , paragraph 19).
55.  In Case C-192/89   Sevince   [1990] ECR I-3461, paragraphs 14 and 15, the Court stated that the same conditions apply in determining whether the provisions of a decision of the EEC-Turkey Association Council may have direct effect.
58.  That rule of equal treatment lays down a precise obligation of result and, by its nature, can be relied on by an individual before a national court as a basis for requesting it to disapply the discriminatory provisions of the legislation of a Member State under which the grant of a right is subject to a condition not imposed on nationals. No further implementing measures are required (see, by analogy,   Sürül  , paragraph 63).
60.  The above interpretation is also confirmed by the case-law of the Court (see   Eddline El-Yassini  , paragraph 27, and   Pokrzeptowicz-Meyer  , paragraphs 21 and 22) relating to the principle of equal treatment as regards conditions of work laid down in the first paragraph of Article 40 of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 27 April 1976 and approved on behalf of the Community by Council Regulation (EEC) No 2211/78 of 26 September 1978 (OJ 1978 L 264, p. 1) and Article 37(1) of the Europe Agreement establishing an association between the European Communities and their Member States and the Republic of Poland, concluded and approved on behalf of the Communities by Decision 93/743/Euratom, ECSC, EC of the Council and the Commission of 13 December 1993 (OJ 1993 L 348, p. 1).
64.  Decision No 1/80 was adopted by the Association Council in order to implement Article 12 of the Association Agreement and Article 36 of the Additional Protocol. According to the third recital in the preamble, it seeks to improve, in the social field, the treatment accorded to workers and members of their families in relation to the arrangements introduced by Decision No 2/76, which the Council of Association adopted on 20 December 1976. The provisions of Section 1 of Chapter II of Decision No 1/80, of which Article 10(1) forms part, thus constitute a further stage in securing freedom of movement for workers on the basis of Articles 48, 49 and 50 of the EEC Treaty, which became Articles 48 and 49 of the EC Treaty (now, after amendment, Articles 39 EC and 40 EC) and Article 50 of the EC Treaty (now Article 41 EC). The fact that, as the Court recognised in   Demirel  , cited above, the abovementioned provisions of the Association Agreement and the Additional Protocol essentially set out a programme therefore does not prevent the decisions of the Council of Association which give effect in specific respects to the programmes envisaged in that agreement from having direct effect (see, to that effect,   Sevince  , paragraph 21, and Case C-1/97   Birden   [1998] ECR I-7747, paragraph 52, and the case-law cited there).
65.  Finally, the fact that the Association Agreement is intended essentially to promote the economic development of Turkey and therefore involves an imbalance in the obligations assumed by the Community towards the non-member country concerned is not such as to prevent recognition by the Community of the direct effect of certain of its provisions or,   a fortiori  , of those intended to implement that agreement (see, to that effect,   Sürül  , paragraph 72, and the case-law cited there).
66.  That conclusion applies in particular to Article 10(1) of Decision No 1/80, which, far from being purely programmatic in nature, establishes, in the field of working conditions and remuneration, a clear and unconditional principle which is sufficiently practical to be applied by national courts and is therefore capable of directly governing the legal situation of individuals (see, by analogy,   Eddline El-Yassini  , paragraph 31, and   Sürül  , paragraph 74).
68.  First of all, it should be observed that it is undisputed that the five Turkish nationals who were removed from the list of candidates of Wählergruppe Gemeinsam for the election to the general assembly of the chamber of workers of the   Land   of Vorarlberg are workers duly registered as belonging to the labour force of a Member State within the meaning of Article 10(1) of Decision No 1/80, as that term is explained in the case-law of the Court (see, most recently, with respect to the same term   "duly registered as belonging to the labour force"   in Article 6(1) of Decision No 1/80, Case C-188/00   Kurz   [2002] ECR I-0000, paragraphs 37 and 39 to 41).
72.  Since   Bozkurt   (cited above), paragraphs 14, 19 and 20, the Court has consistently inferred from the wording of Article 12 of the Association Agreement and Article 36 of the Additional Protocol, as well as from the objective of Decision No 1/80 ─ which is progressively to secure freedom of movement for workers, guided by Articles 48, 49 and 50 of the Treaty ─ that the principles laid down in those articles must be extended, so far as possible, to Turkish nationals who enjoy the rights conferred by Decision No 1/80 (see,   inter   alia  , Case C-340/97   Nazli   [2000] ECR I-957, paragraphs 50 to 55, and the references cited therein).
77.  As was pointed out in paragraphs 73 and 74 of this judgment, Article 10(1) of Decision No 1/80 imposes on each Member State, as regards the conditions of work for Turkish workers duly registered as belonging to its labour force, obligations analogous to those applying to nationals of other Member States.
78.  Consequently, in the light of the principles laid down in connection with the freedom of movement for workers who are nationals of a Member State and applicable by analogy to Turkish workers enjoying the rights conferred by Decision No 1/80, national legislation which makes eligibility for election to a body representing and defending the interests of workers, such as the chambers of workers in Austria, subject to possession of the nationality of the host Member State must be considered to be incompatible with Article 10(1) of that decision.
79.  Moreover, as the Commission rightly pointed out, the above interpretation is the only one consistent with the aim and broad logic of Decision No 1/80, which is intended to secure progressively freedom of movement for workers and to promote the integration in the host Member State of Turkish workers who satisfy the conditions laid down in that decision and thus enjoy the rights conferred on them by it (see   Kurz  , paragraphs 40 and 45). Granting Turkish workers legally employed in the territory of a Member State entitlement to the same conditions of work as those enjoyed by workers who are nationals of the Member States is an important step towards creating an appropriate framework for the gradual integration of migrant Turkish workers.
81.  That argument cannot be upheld.
82.  It is clear, first of all, that Regulation No 1612/68 was adopted on the basis of Article 49 of the Treaty, according to which the Council is to adopt the measures necessary to secure progressively freedom of movement for workers, which is defined in Article 48 of the Treaty.
83.  The aim of Regulation No 1612/68 is therefore solely to clarify the requirements of Article 48; as secondary legislation, it cannot supplement the rules of the Treaty which it is intended to implement and which are its legal basis.
84.  The first paragraph of Article 8 of that regulation must thus be regarded as constituting merely a particular expression of the prohibition of discrimination laid down by Article 48(2) of the Treaty in the specific field of workers' participation in trade-union and similar activities, which are guaranteed by any organisation representing and defending workers' interests (see, to that effect,   ASTI I  , paragraph 15).
85.  Next, it must be emphasised that, given that Article 48(2) of the Treaty ─ which is likewise simply a particular expression of the fundamental rule, laid down in the first paragraph of Article 7 of the Treaty, that discrimination on the basis of nationality is prohibited ─ must be regarded as a general principle, the term   "conditions of work"   within the meaning of Article 48(2) must be interpreted as having a broad scope in so far as that article provides for equal treatment in all matters directly or indirectly related to the exercise of activity as an employee in the host Member State. As is clear from paragraphs 82 to 84 of the present judgment, that rule was, subsequently, merely implemented and given particular expression by the more specific provisions of Regulation No 1612/68.
86.  Accordingly, Article 48(2) of the Treaty and the first paragraph of Article 8 of Regulation No 1612/68 are an expression of that general principle of non-discrimination on the basis of nationality, which is one of the fundamental principles of Community law.
87.  That finding is supported by paragraph 11 of the   ASTI I   judgment, according to which the fundamental principle of non-discrimination on grounds of nationality   "laid down"   in Article 48(2) of the Treaty is   "restated"   in several   "individual"   provisions of Regulation No 1612/68, including, in particular, Articles 7 and 8. It is likewise confirmed by the fact that, in   ASTI II  , the Court found that the Member State concerned had failed to fulfil its obligations on the double basis of those two articles read in conjunction.
89.  Although Article 10(1) of Decision No 1/80 does not establish a principle of freedom of movement for Turkish workers within the Community, whilst Article 48 of the Treaty lays down for the benefit of Community nationals the principle of freedom of movement for workers, Article 10(1) lays down for workers of Turkish nationality, once they are legally employed within the territory of a Member State, a right to equal treatment as regards conditions of work and remuneration of the same extent as that conferred in similar terms by Article 48(2) of the Treaty on nationals of the Member States (see, by analogy,   Pokrzeptowicz-Meyer  , paragraphs 40 and 41).
92.  It must be added that, in any event, it is settled case-law that the non-application of the rules laid down in Article 48 of the Treaty to activities which constitute participation in the exercise of powers conferred by public law is an exception to a fundamental freedom and must therefore be interpreted in such a way as to limit its scope to that which is strictly necessary in order to safeguard the interests which that exception allows the Member States to protect. It follows that that exception cannot permit a Member State to submit generally any participation in a public-law institution such as the chambers of work in Austria to a condition of nationality but merely permits foreign workers to be excluded, where appropriate, from certain specific activities of the institution in question which, in themselves, actually entail direct participation in the exercise of public-law powers conferred (see,   inter alia  ,   ASTI I  , paragraph 19).
93.  It follows that, with respect to foreign workers enjoying equal treatment as regards remuneration and other conditions of work, the denial of the right to stand as a candidate for election to a body representing and defending the interests of workers, such as the chambers of workers in Austria, can be justified neither by the legal nature of the body in question under national law nor by the fact that certain of its functions could involve participation in the exercise of powers conferred by public law (see   ASTI I  , paragraph 20).