Eran Abatay and Others (C-317/01) and Nadi Sahin (C-369/01) v Bundesanstalt für Arbeit.
Date: 2003-10-21
38.  First, the question arises whether Article 13 of Decision No 1/80, like Article 41(1) of the Additional Protocol to the Association Agreement, is to be understood as prohibiting Member States generally from introducing any new national restriction on the conditions of access to employment as from December 1980, in accordance with Article 16(1)) of the section of that decision concerning questions relating to employment and the free movement of workers. However, the wording of Article 13, which differs in certain respects from that of Article 41(1) of the Additional Protocol, suggests, rather, the interpretation that the prohibition on introducing new restrictions relates only to the time when a worker is first legally resident and employed in the territory of the Member State concerned.
58.  The direct effect of both Article 41(1) of the Additional Protocol and Article 13 of Decision No 1/80 is clear from the case-law of the Court of Justice (see, as regards Article 41(1), Joined Cases C-37/98   Savas   [2000] ECR I-2927, paragraphs 54 and 71, and, as regards Article 13, Case C-192/89   Sevince   [1990] ECR I-3461, paragraph 26). Those provisions lay down, clearly, precisely and unconditionally, unequivocal   "standstill"   clauses, which contain an obligation entered into by the contracting parties which amounts in law to a duty not to act (see   Savas  , cited above, paragraphs 46 and 47).
59.  It follows that those two provisions may be relied on before the national courts by the Turkish nationals to whom they apply to prevent the application of inconsistent rules of national law.
62.  First, as regards Article 41(1) of the Additional Protocol, it is clear from paragraphs 64 and 67 of   Savas   that the   "standstill"   clause contained in that provision cannot confer upon a Turkish national either a right of establishment or a right of residence derived directly from Community provisions.
63.  On that point the Court based its view on its own settled case-law, according to which, as Community law stands at present, the provisions concerning the Association between the European Economic Community and the Republic of Turkey ( "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 who are already lawfully integrated into the host Member State as a result of lawful employment over a certain period, in accordance with the conditions laid down in Article 6 of Decision No 1/80 (see   inter alia   the judgment in   Savas  , paragraph 58).
64.  In paragraph 59 of   Savas  , the Court 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.
65.  Accordingly, a Turkish national's first admission to the territory of a Member State is, as a rule, governed exclusively by that State's own domestic law, and the person concerned may claim certain rights under Community law in relation to holding paid employment or exercising self-employed activity, and, correlatively, in relation to residence, only in so far as his position in the Member State concerned is regular (see   Savas  , paragraph 65).
66.  However, it is clear from paragraph 69 of   Savas   that the   "standstill"   clause in Article 41(1) of the Additional Protocol precludes a Member State from adopting any new measure having the object or effect of making the establishment and, as a corollary, the residence of a Turkish national in its territory subject to stricter conditions than those which applied at the time when the Additional Protocol entered into force with regard to the Member State concerned.
70.  None the less the   "standstill"   clauses contained in each of those two provisions must be acknowledged to have the same meaning.
71.  As the Court held in paragraph 50 of   Savas   the two provisions at issue are of the same kind.
72.  Moreover, they pursue the same objective, which is to create conditions conducive to the gradual establishment of freedom of movement for workers, of the right of establishment and of freedom to provide services by prohibiting national authorities from creating new obstacles to those freedoms so as not to make the gradual achievement of those freedoms more difficult between the Member States and the Republic of Turkey.
73.  No argument has been put forward which would justify giving the   "standstill"   clause relating to freedom of movement for workers a narrower scope than that given to the same clause relating to freedom of establishment and freedom to provide services.
74.  Consequently, the interpretation by the Court set out in paragraph 69 of   Savas   and in paragraphs 66 to 68 of this judgment regarding Article 41(1) of the Additional Protocol must also be valid for Article 13 of Decision No 1/80, which therefore prevents Member States generally from treating Turkish nationals less favourably than they were treated at the time of the entry into force of the   "standstill"   clause, that is to say, 1 December 1980.
75.  In that connection, the Court cannot uphold the argument, relied on by the German Government   inter alia  , that Article 13 does not affect the right of the Member States to adopt, even after 1 December 1980, new restrictions on access to employment for Turkish nationals, but merely entails that they are not applicable to those Turkish nationals who are already lawfully employed and thereby have a right of residence in the host Member State when those restrictions are introduced. The German Government infers that interpretation from the wording   "workers and members of their families legally resident and employed in their respective territories"   which appears in Article 13 of Decision No 1/80.
76.  However, that interpretation disregards the system set up by Decision No 1/80 and would deprive Article 13 thereof of its effect.
77.  Thus, in the wake of Decision No 2/76 on the implementation of Article 12 of the Association Agreement, adopted by the Association Council on 20 December 1976, the social provisions of Decision No 1/80 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) (see   inter alia   Case C-1/97   Birden   [1998] ECR I-7747, paragraph 52, and Case C-188/00   Kurz   [2002] ECR I-10691, paragraph 40).
78.  In particular, Article 6(1) of Decision No 1/80 grants Turkish migrant workers meeting its conditions clear rights as regards taking up employment. Those rights, which are progressively extended in proportion to the duration of lawful paid employment and are intended to consolidate progressively the position of the person concerned in the host Member State, are directly conferred by Community law and the national authorities have no option to attach conditions to or restrict the application of such rights, as they would otherwise undermine the effect of that decision (see Case C-36/96   Günaydin   [1997] ECR I-5143, paragraphs 37 to 40 and 50).
79.  It follows from the foregoing that Article 13 of Decision No 1/80 cannot have as its purpose the protection of the rights of Turkish nationals as regards employment since those rights are already fully covered by Article 6 of that decision.
80.  However, as is clear from its wording, Article 13 prohibits national authorities from making more stringent the conditions on access to employment for Turkish nationals through the introduction of fresh measures restricting such access. The rationale for that provision is the fact, noted in paragraphs 63 and 65 of this judgment, that the Member States have retained the power to authorise Turkish nationals to enter their territory to take up employment.
81.  Therefore the interpretation mentioned in paragraph 75 of this judgment is paradoxical and liable to deprive Article 13 of Decision No 1/80 of any meaning, since a Turkish national who is already lawfully employed in a Member State no longer needs the protection of a   "standstill"   clause as regards access to employment, as such access has already been allowed and the person concerned subsequently enjoys, for the rest of his career in the host Member State, the rights which Article 6 of that decision expressly confers on him. On the other hand, the   "standstill"   requirement as regards conditions of access to employment is intended to ensure that the national authorities refrain from taking measures likely to compromise the achievement of the objective of Decision No 1/80, which is to allow freedom of movement for workers, even if, initially, with a view to the gradual introduction of that freedom, existing national restrictions as regards access to employment may be retained (see, for comparison, Case 77/82   Peskeloglou   [1983] ECR 1085, paragraph 13).
82.  Moreover, as is clear from its wording, Article 13 applies not only to Turkish workers but also to members of their families. Decision No 1/80 does not make the access to the territory of a Member State of family members of a Turkish worker already legally present in that state in order to join the rest of the family conditional on the exercise of paid employment.
83.  In the light of all the foregoing observations it cannot be maintained that Article 13 of Decision No 1/80 is only applicable to Turkish nationals already integrated into the employment market of a Member State.
84.  If the scope of Article 13 of Decision No 1/80 is thus not limited to Turkish nationals already integrated into the employment market of a Member State, that provision none the less refers to workers and members of their families   "legally resident and employed in their respective territories"  . It is clear from the use of those terms that the   "standstill"   clause can benefit a Turkish national only if he has complied with the rules of the host Member State as to entry, residence and, where appropriate, employment and if, therefore, he is legally resident in the territory of that State (see, as regards the definition of the related term   "legal employment"  , used in several Articles in Chapter II, Section 1, of Decision No 1/80,   Birden  , cited above, paragraph 51; Case C-340/97   Nazli and Others   [2000] ECR I-957, paragraph 31, and   Kurz  , cited above, paragraph 39).
85.  The competent national authorities are therefore entitled, even after the entry into force of Decision No 1/80, to introduce more stringent measures to deal with Turkish nationals whose position is not lawful.
The applicability of Article 41(1) of the Additional Protocol and Article 13 of Decision No 1/80
86.  As a preliminary point it must be observed that, although those two provisions have the same meaning, each of them has been given a very specific scope, with the result that they cannot be applied concurrently.
87.  First, as regards Article 13 of Decision No 1/80, it is of course clear from the files sent to the Court of Justice by the referring court that the Turkish nationals at issue in the main proceedings are in a   "lawful"   position within the meaning of the settled case-law of the Court in so far as they have complied with the conditions laid down by law and regulation in the host Member State governing entry into its territory and employment and are thus entitled to pursue an occupation in that State (see, as regards Article 6(1) of that Decision,   Birden  , paragraph 51,   Nazli  , paragraph 31, and   Kurz  , paragraph 39).
90.  It is clear from the structure and the purpose of Decision No 1/80 that, at the current stage of the development of freedom of movement for workers under the EEC-Turkey Association and without prejudice to the particular position of family members authorised to join a Turkish worker already legally present in the territory of a Member State, that decision is essentially aimed at the progressive integration of Turkish workers into that territory through the pursuit of lawful employment which should be uninterrupted for one, three or four years, as the case may be, save in the cases of interruption of the employment relationship set out in Article 6(2) of that decision.
92.  Second, as regards Article 41(1) of the Additional Protocol, the Netherlands Government essentially argues that the provisions on freedom to provide services in general and Article 41(1) in particular are not applicable in the transport sector which, because of its particular nature, is regulated only by Article 42 of the Additional Protocol. Therefore, under the Treaty, services in the transport sector are excluded from the freedom to provide services and a specific set of rules is applicable to such services.
93.  However, that argument cannot be upheld.
96.  It must be emphasised in that connection that, unlike the principles enshrined in the Treaty relating to competition, taxation and the approximation of laws which, under Article 16 of the Association Agreement, must be made applicable as such within the EEC-Turkey Association, it is clear from the wording of Article 15 of that agreement and Article 42 of the Additional Protocol that the Association Council enjoys a considerably wider discretion in the field of transport. Those articles provide that   "the rules and conditions for extension"   to the Republic of Turkey of the transport provisions of the Treaty are to be laid down   "with due regard to the geographical situation of Turkey"  , with the result that, in the context of the Association, the rules to be adopted on transport are not necessarily the same as those applicable under the Treaty.
97.  Moreover, as regards the measures taken by the Community pursuant to the Treaty provisions for the various types of transport, it is clear from the use of the verb   "may"   in Article 42 of the Additional Protocol that the extension to the Republic of Turkey of the Treaty provisions on transport is merely optional.
101.  It is thus clear that, like the comparable provisions of the Association Agreement applicable to workers (see, as regards Article 12 of the Agreement, Case C-434/93   Bozkurt   [1995] ECR I-1475, paragraphs 19 and 20) and the self-employed (see Article 13 of the Agreement), Article 14 thereof cannot be interpreted as entailing the application of principles accepted in connection with comparable provisions of Community law to achieve the opposite result to that intended by the EEC-Turkey Association Agreement.
105.  In that regard, it is clear that that provision may be relied on by an undertaking established in Turkey which lawfully provides services in a Member State.
106.  However, for reasons explained more fully by the Advocate General in points 201 to 204 of his Opinion, Turkish lorry drivers like Mr Abatay and Others, who are employed by an undertaking such as that described in the previous paragraph, may also invoke the protection of Article 41(1) (see, to that effect, for comparison, Case C-350/96   Clean Car Autoservice   [1998] ECR I-2521, paragraphs 19 to 21). The paid employees of the provider of services are indispensable to enable him to provide his services.
107.  However, although it is settled case-law that the right freely to provide services may be relied on by a provider as against the State in which he is established, those services must then be provided for persons established in another Member State (see Case C-384/93   Alpine Investments   [1995] ECR I-1141, paragraph 30, and Case C-60/00   Carpenter   [2002] ECR I-6279, paragraph 30).
110.  In order to determine whether the   "standstill"   requirement in Article 41(1) of the Additional Protocol, as interpreted in paragraphs 66 to 68 of this judgment, precludes national legislation such as the AEVO and the ArGV, it must be considered whether it entails a restriction on the freedom to provide services and, if so, whether that restriction must be considered to be a new one.
111.  As to the question whether the national legislation entails a restriction on the freedom to provide services, it must be observed that, first, according to settled case-law, national legislation which makes the provision of certain services on national territory by an undertaking established in another Member State subject to the issue of an administrative authorisation such as a work permit constitutes a restriction on the fundamental principle enshrined in Article 59 of the EC Treaty (now, after amendment, Article 49 EC) (see Case C-113/89   Rush Portuguesa   [1990] ECR I-1417, paragraph 12; Case C-76/90   Säger   [1991] ECR I-4221, paragraph 14; Case C-43/93   Vander Elst   [1994] ECR I-3803, paragraph 15, and Case C-355/98   Commission   v   Belgium   [2000] ECR I-1221, paragraph 35).
112.  Second, it is clear from the wording of Article 14 of the Association Agreement, as well as from the objective of the EEC-Turkey Association, that the principles enshrined in Articles 55 of the EC Treaty (now Article 45 EC) and 56 of the EC Treaty (now, after amendment, Article 46 EC), and in the provisions of the Treaty relating to the freedom to provide services, must be extended, so far as possible, to Turkish nationals to eliminate restrictions on the freedom to provide services between the contracting parties (see, as regards Article 12 of that agreement,   Nazli  , paragraph 55, and   Kurz   paragraph 30).
115.  It must be added that a work permit, which is intended to regulate the access of foreign workers to the national employment market, does not appear to be an appropriate measure for workers employed by an undertaking established in a non-member country who are temporarily sent to a Member State to provide services but do not in any way seek access to the labour market in that second State, as they return to their country of origin or residence after completion of their work (see   Rush Portuguesa  , cited above, paragraph 15 and   Vander Elst  , cited above, paragraph 21).
116.  As regards the question whether the legislation at issue in the main proceedings constitutes a new restriction, it is for the national courts, which alone have jurisdiction to interpret national law, to determine whether that legislation has a new aspect in that it results in a worse position for Turkish lorry drivers than their position under the rules applicable to them in Germany on the date of the entry into force of the Additional Protocol for that Member State, that is to say, 1 January 1973.
117.  In the light of the foregoing considerations, the answer to be given to the referring court is that Article 41(1) of the Additional Protocol and Article 13 of Decision No 1/80 must be interpreted as meaning that:
─  those two provisions have direct effect in the Member States so that Turkish nationals to whom they apply are entitled to rely on them before the national courts to prevent the application of inconsistent rules of national law;
─  Article 41(1) and Article 13 prohibit generally the introduction of new national restrictions on the right of establishment and the freedom to provide services and freedom of movement for workers from the date of the entry into force in the host Member State of the legal measure of which those articles are part;
─  Article 13 of Decision No 1/80 is applicable to Turkish nationals only if their residence in the territory of the host Member State is not only lawful but for a sufficient period to allow them progressively to become integrated there;
─  in circumstances such as those in the cases in the main proceedings, Article 41(1) of the Additional Protocol is applicable to international road haulage of goods originating in Turkey, where those services are carried out in the territory of a Member State;
─  the protection of Article 41(1) can be relied on not only by an undertaking established in Turkey which performs services in a Member State, but also by the employees of such an undertaking, to preclude a new restriction on the freedom to provide services; however, it may not be relied on to that end by an undertaking established in a Member State where those using the services are established in the same Member State;
─  Article 41(1) precludes the introduction into the national legislation of a Member State of a requirement of a work permit in order for an undertaking established in Turkey to provide services in the territory of that State, if such a permit was not already required at the time of the entry into force of the Additional Protocol;
─  it is for the national court to determine whether the national legislation applied to Turkish nationals such as the applicants in the main proceedings is less favourable than that applicable at the time of the entry into force of the Additional Protocol.