Sema Sürül v Bundesanstalt für Arbeit.
Date: 1999-05-04
47 In order to provide a helpful answer to the questions so reformulated, it is necessary first to consider whether Article 3(1) of Decision No 3/80 is, by its nature, such as to confer directly on an individual rights which he may assert before a court of a Member State.  If so, the question is then whether that decision covers the situation of a Turkish national such as the plaintiff in the main proceedings who seeks, in the Member State in which he has been authorised to reside, the benefit of an allowance of the kind at issue in this case and, finally, whether the principle of non-discrimination in the field of social security embodied in that provision of Decision No 3/80 precludes the host Member State from making the grant of that benefit subject to more restrictive conditions for Turkish migrants than for nationals.
The direct effect of Article 3(1) of Decision No 3/80
49 In that judgment, the Court held that, by its nature, Decision No 3/80 is intended to be supplemented and implemented in the Community by a subsequent act of the Council (paragraph 33) and that, even though some of its provisions are clear and precise, that decision cannot be applied so long as supplementary implementing measures have not been adopted by the Council (paragraph 37).
50 It follows, those Governments maintain, that no provision of Decision No 3/80 can have direct effect in the territory of any Member State until the supplementary measures essential for the concrete implementation of that decision, such as those set out in the proposal for a regulation submitted by the Commission, have been adopted by the Council.
51 It should be observed that, in Taflan-Met the Court held, in paragraphs 21 and 22, that it follows from the binding character which the Agreement attaches to decisions of the EEC-Turkey Association Council that Decision No 3/80 entered into force on the date on which it was adopted, that is to say, 19 September 1980, and that, since then, the Contracting Parties have been bound by that decision.
52 In the same judgment, the Court ruled that, so long as the supplementary measures essential for implementing Decision No 3/80 have not been adopted by the Council, Articles 12 and 13 of that decision do not have direct effect in the territory of the Member States and are therefore not such as to entitle individuals to rely on them before the national courts.
53 In Taflan-Met the plaintiffs in the main proceedings claimed invalidity or survivors' pensions on the basis of the coordination rules laid down in Articles 12 and 13 of Decision No 3/80.  That case thus concerned the right of Turkish migrant workers, employed successively in more than one Member State, or the right of survivors of those workers, to certain social security benefits on the basis of technical provisions for the coordination of the different national laws applicable thereto referred to in Chapter 2, entitled `Invalidity', and Chapter 3, entitled `Old age and death (pensions)', of Title III of that decision.
54 It was in that context that the Court observed, in paragraphs 29 and 30 of Taflan-Met, comparing Regulations No 1408/71 and its implementing regulation, No 574/72, with Decision No 3/80, that, even though the Decision refers specifically to certain provisions of the two regulations, the Decision does not contain a large number of precise, detailed provisions, deemed indispensable for the purpose of implementing Regulation No 1408/71 within the Community. It emphasised in paragraph 32 in particular that, whilst Decision No 3/80 sets out the fundamental principle of aggregation for the branches sickness and maternity, invalidity, old age, death grants and family benefits by reference to Regulation No 1408/71, supplementary implementing measures of the kind set out in Regulation No 574/72 must be adopted before that principle can be applied.  The Court pointed out, at paragraphs 35 and 36, that such measures as well as detailed provisions relating, inter alia, to prevention of overlapping benefits and to determination of the applicable legislation, appear only in the proposal for a Council (EEC) Regulation implementing within the European Economic Community Decision No 3/80 submitted by the Commission on 8 February 1983, which has not yet been adopted by the Council.  It concluded that, until adoption of those implementing measures, the coordinating rules in Decision No 3/80 on which the plaintiffs had based their claims could not be relied on by them directly before the national courts of a Member State.
55 In contrast, this case is not concerned with those coordinating provisions in Title III of Decision No 3/80. Mrs Sürül relies solely on the principle of non-discrimination on grounds of nationality laid down in Article 3(1) of that decision, with a view to obtaining, in the Member State of her residence and solely under the legislation of that State, entitlement to a social security benefit under the same conditions as those laid down for the nationals of the host Member State.
56 Moreover, the proposal for a regulation submitted by the Commission for the implementation of Decision No 3/80 in the Community contains no provision concerning the application of Article 3(1), which is taken word for word from Regulation No 1408/71, whose implementing regulation, No 574/72, likewise contains no measures for giving effect to that provision.
57 The reasoning which led the Court to hold that, as Community law stands, Articles 12 and 13 of Decision No 3/80 do not have direct effect, must apply by analogy to all the other provisions of that decision which require additional measures for their application in practice. That reasoning cannot, however, be transposed to the principle of equal treatment in the field of social security, embodied in Article 3(1) of that decision.
58 Circumstances such as those in the main proceedings are not such as to give rise to problems of a technical nature relating in particular to the aggregation of periods completed in different Member States, to non-overlapping of benefits paid by different competent institutions or to determination of the applicable national legislation, since the plaintiff in the main proceedings merely invokes for the combined application of the legislation of the host Member State and of the principle of non-discrimination on grounds of nationality embodied in Article 3(1) of Decision No 3/80.  That claim can be examined without any need for recourse to coordinating measures which the Council has not yet adopted.
59 In those circumstances, the submission of the German, French, Netherlands, Austrian and United Kingdom Governments cannot be accepted and it is therefore necessary to verify whether Article 3(1) of Decision No 3/80 fulfils the requirements for it to have direct effect in the territory of the Member States.
60 It is settled case-law that a provision in an agreement concluded by the Community with non-member countries must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement itself, 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, in particular, Case 12/86 Demirel [1987] ECR 3719, paragraph 14; Case C-18/90 Kziber [1991] ECR I-199, paragraph 15, and Case C-162/96 Racke [1998] ECR I-3655, paragraph 31).  In Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461, paragraphs 14 and 15, the Court made it clear that the same conditions apply in determining whether the provisions of a decision of the EEC-Turkey Association Council may have direct effect.
62 That provision lays down in clear, precise and unconditional terms a prohibition of discrimination, based on nationality, against persons residing in the territory of any Member State to whom the provisions of Decision No 3/80 are applicable.
63 As the Commission rightly pointed out, 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 paragraphs 56 and 58 of this judgment).
64 That finding is supported by the fact that Article 3(1) of Decision No 3/80 constitutes merely the implementation and the concrete expression, in the particular field of social security, of the general principle of non-discrimination on grounds of nationality laid down in Article 9 of the Agreement, which refers to Article 7 of the EEC Treaty (subsequently, Article 6 of the EC Treaty and now, after amendment, Article 12 EC).
65 That interpretation is also confirmed by settled case-law of the Court (see Kziber, cited above, paragraphs 15 to 23, confirmed by Case C-58/93 Yousfi [1994] ECR I-1353, paragraphs 16 to 19; Case C-103/94 Krid [1995] ECR I-719, paragraphs 21 to 24; Case C-126/95 Hallouzi-Choho v Bestuur van de Sociale Verzekeringsbank [1996] ECR I-4807, paragraphs 19 and 20; and Case C-113/97 Babahenini [1998] ECR I-183, paragraphs 17 and 18) relating to the principle of equal treatment contained in Article 39(1) of the Cooperation Agreement between the European Economic Community and the People's Democratic Republic of Algeria, signed in Algiers on 26 April 1976 and concluded on behalf of the Community by Council Regulation (EEC) No 2210/78 of 26 September 1978 (OJ 1978 L 263, p. 1) and to Article 41(1) of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 26 April 1976 and concluded on behalf of the Community by Council Regulation (EEC) No 2211/78 (OJ 1978 L 264, p. 1).
66 According to that case-law, those provisions, which provide for the prohibition of all discrimination based on nationality in the field of social security against Algerian and Moroccan nationals as compared with the nationals of the host Member State, are directly effective notwithstanding the fact that the Cooperation Council has not adopted measures implementing Article 40(1) of the EEC-Algeria Agreement or Article 42(1) of the EEC-Morocco Agreement relating to the implementation of the principles stated in Articles 39 and 41 respectively.
67 The foregoing interpretation is not invalidated by the fact that Article 3(1) of Decision No 3/80 states that the prohibition of discrimination on grounds of nationality which it contains is to take effect `[s]ubject to the special provisions of this Decision'.
68 It is sufficient to note that, with respect to the family allowances at issue in this case, Decision No 3/80 neither makes any exception to nor imposes any restriction on the principle of equal treatment laid down in Article 3(1).  In view of the fundamental nature of that principle, the existence of that reservation, taken word for word from Article 3(1) of Regulation No 1408/71 and appearing also in Article 9 of the Agreement and in Article 6 of the Treaty, is not in itself such as to affect the direct effect of the provision from which it allows derogations (see, to that effect, Sevince, cited above, paragraph 25) by depriving the rule on national treatment of its unconditional nature.
69 Consideration of the purpose and the nature of the Agreement of which that provision forms part does not contradict the finding that the principle of non-discrimination embodied in Article 3(1) of Decision No 3/80 is capable of directly governing the situation of individuals.
70 The purpose of the Agreement is to establish an association to promote the development of trade and economic relations between the parties, including in the field of employment, through the progressive achievement of freedom of movement for workers, with a view to improving the standard of living of the Turkish people and facilitating the accession of the Turkish Republic to the Community at a later date (see the fourth recital in the preamble to the Agreement).
71 The Protocol, which, in accordance with Article 62 thereof, forms an integral part of the Agreement, provides in Article 36 for the timetable for the progressive achievement of such freedom of movement for workers and provides, in Article 39, for the Association Council to adopt social security measures for workers of Turkish nationality moving within the Community and for their families residing in the Member States.  It was on that basis that the Association Council adopted Decision No 3/80, the aim of which is to guarantee the payment of social security benefits to migrant workers in the Community.
72 Moreover, the fact that the 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 (see, by analogy, Case 87/75 Bresciani v Amministrazione delle Finanze [1976] ECR 129, paragraph 23; Kziber, cited above, paragraph 21; and Case C-469/93 Amministrazione delle Finanze dello Stato v Chiquita Italia [1995] ECR I-4533, paragraph 34).
73 Finally, it follows from paragraphs 55, 56 and 58 of this judgment that the rule in question assimilates persons who are covered by Decision No 3/80 and reside in the host Member State to nationals of the host State, by prohibiting any discrimination based on nationality and resulting from the legislation of that Member State.  That rule is set out in Article 3(1) of the Decision and is not affected by its other provisions.
74 It follows from the foregoing considerations that Article 3(1) of Decision No 3/80 establishes, in the area in which that decision applies, a precise and unconditional principle such as is capable of being applied by a national court and, therefore, of governing the legal situation of individuals.  The direct effect which must therefore be accorded to that provision means that the persons to whom it applies are entitled to rely on it before the courts of the Member States.
The scope of Article 3(1) of Decision No 3/80
84 The definition of the persons to whom Decision No 3/80 applies contained in Article 2 thereof is inspired by the same definition set out in Article 2(1) of Regulation No 1408/71.
85 Second, it must be borne in mind that according to settled case-law the definition of `worker' in Article 1(a) of Regulation No 1408/71 `for the purpose of this regulation' is of general scope and in the light of that consideration covers any person who has the status of a person insured under the social security legislation of one or more Member States, whether or not he pursues a professional or trade activity (see Case 182/78 Algemeen Ziekenfonds Drenthe-Plattenland v Pierik [1979] ECR 1977, paragraph 4).  That expression means any person who is insured under one of the social security schemes mentioned in Article 1(a) of Regulation No 1408/71 for the contingencies and under the conditions mentioned in that provision (see Case C-2/89 Kits van Heijningen [1990] ECR I-1755, paragraph 9).
86 It follows that, as the Court has also stated in relation to Regulation No 1408/71 in Case C-85/96 Martínez Sala [1998] ECR I-2691, paragraph 36, and Case C-275/96 Kuusijärvi [1998] ECR I-3419, paragraph 21, a person has the status of worker where he is covered, even if only in respect of a single risk, on a compulsory or optional basis, by a general or special social security scheme, irrespective of the existence of an employment relationship.
89 As is clear from the wording of that provision, Annex I, Point I, C, of Regulation No 1408/71 clarified or narrowed the definition of employed person within the meaning of Article 1(a)(ii) of that regulation solely for the purpose of the grant of family benefits pursuant to Title III, Chapter 7 (Martínez Sala, cited above, paragraph 43).
95 It is for the national court, which alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law, to decide whether, during the period at issue, Mrs Sürül is herself to be regarded as a worker.  Should that not be so for all or part of that period, it is again for that court to determine whether, for the period concerned, Mrs Sürül's husband fulfilled the condition mentioned in paragraph 94 of this judgment as having to be satisfied for him to be regarded as a worker, so that Mrs Sürül, in her capacity as the spouse of a Turkish worker whom she has been authorised to join in the host Member State in order to reunite the family, would be a member of a worker's family within the meaning of Decision No 3/80.
The scope of the principle of non-discrimination laid down in Article 3(1) of Decision No 3/80
97 In that connection, it is important to emphasise first that the principle laid down in Article 3(1) of Decision No 3/80, prohibiting all discrimination based on nationality in the field covered by that decision, means that a Turkish national to whom that decision applies must be treated in the same way as nationals of the host Member State, so that the legislation of that Member State cannot impose upon such a Turkish national more or stricter conditions than those applicable to its own nationals (see, by analogy, Case 186/87 Cowan v Trésor Public [1989] ECR 195, paragraph 10, Kziber, paragraph 28, and Hallouzi-Choho, paragraphs 35 and 36, both cited above).
107 In that connection, regard must be had to the case-law of the Court to the effect that the interpretation which, in the exercise of the jurisdiction conferred on it by Article 177 of the Treaty, the Court gives to a rule of Community law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its entry into force.  It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships which arose and were established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing a dispute relating to the application of that rule before the competent courts are satisfied (see, in particular, Case 24/86 Blaizot v University of Liège [1988] ECR 379, paragraph 27).
108 It is only exceptionally that, in application of a general principle of legal certainty which is inherent in the Community legal order, the Court may decide to restrict the right to rely upon a provision it has interpreted with a view to calling in question legal relations established in good faith.  As the Court has consistently held, such a restriction may be allowed only in the actual judgment ruling upon the interpretation sought (see in particular Case C-35/97 Commission v France [1998] ECR I-5325, paragraph 49).
110 Next, the judgment in Taflan-Met, cited above, may well have created a situation of uncertainty as to the right of individuals to rely before a national court on Article 3(1) of Decision No 3/80.