Meryem Demirel v Stadt Schwäbisch Gmünd.
Date: 1987-09-30
7 IT SHOULD FIRST BE POINTED OUT THAT, AS THE COURT HELD IN ITS JUDGMENT OF 30 APRIL 1974 IN CASE 181/73 HAEGEMAN V BELGIUM (( 1974 )) ECR 449, AN AGREEMENT CONCLUDED BY THE COUNCIL UNDER ARTICLES 228 AND 238 OF THE TREATY IS, AS FAR AS THE COMMUNITY IS CONCERNED, AN ACT OF ONE OF THE INSTITUTIONS OF THE COMMUNITY WITHIN THE MEANING OF ARTICLE 177 ( 1 ) ( B ), AND, AS FROM ITS ENTRY INTO FORCE, THE PROVISIONS OF SUCH AN AGREEMENT FORM AN INTEGRAL PART OF THE COMMUNITY LEGAL SYSTEM; WITHIN THE FRAMEWORK OF THAT SYSTEM THE COURT HAS JURISDICTION TO GIVE PRELIMINARY RULINGS CONCERNING THE INTERPRETATION OF SUCH AN AGREEMENT .
9 IN THAT CONNECTION IT IS SUFFICIENT TO STATE THAT THAT IS PRECISELY NOT THE CASE IN THIS INSTANCE . SINCE THE AGREEMENT IN QUESTION IS AN ASSOCIATION AGREEMENT CREATING SPECIAL, PRIVILEGED LINKS WITH A NON-MEMBER COUNTRY WHICH MUST, AT LEAST TO A CERTAIN EXTENT, TAKE PART IN THE COMMUNITY SYSTEM, ARTICLE 238 MUST NECESSARILY EMPOWER THE COMMUNITY TO GUARANTEE COMMITMENTS TOWARDS NON-MEMBER COUNTRIES IN ALL THE FIELDS COVERED BY THE TREATY . SINCE FREEDOM OF MOVEMENT FOR WORKERS IS, BY VIRTUE OF ARTICLE 48 ET SEQ . OF THE EEC TREATY, ONE OF THE FIELDS COVERED BY THAT TREATY, IT FOLLOWS THAT COMMITMENTS REGARDING FREEDOM OF MOVEMENT FALL WITHIN THE POWERS CONFERRED ON THE COMMUNITY BY ARTICLE 238 . THUS THE QUESTION WHETHER THE COURT HAS JURISDICTION TO RULE ON THE INTERPRETATION OF A PROVISION IN A MIXED AGREEMENT CONTAINING A COMMITMENT WHICH ONLY THE MEMBER STATES COULD ENTER INTO IN THE SPHERE OF THEIR OWN POWERS DOES NOT ARISE .
11 AS THE COURT HELD IN ITS JUDGMENT OF 26 OCTOBER 1982 IN CASE 104/81 HAUPTZOLLAMT MAINZ V KUPFERBERG (( 1982 )) ECR 3641, IN ENSURING RESPECT FOR COMMITMENTS ARISING FROM AN AGREEMENT CONCLUDED BY THE COMMUNITY INSTITUTIONS THE MEMBER STATES FULFIL, WITHIN THE COMMUNITY SYSTEM, AN OBLIGATION IN RELATION TO THE COMMUNITY, WHICH HAS ASSUMED RESPONSIBILITY FOR THE DUE PERFORMANCE OF THE AGREEMENT .
14 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 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 .
15 ACCORDING TO ARTICLES 2 TO 5 THEREOF, THE AGREEMENT PROVIDES FOR A PREPARATORY STAGE TO ENABLE TURKEY TO STRENGTHEN ITS ECONOMY WITH AID FROM THE COMMUNITY, A TRANSITIONAL STAGE FOR THE PROGRESSIVE ESTABLISHMENT OF A CUSTOMS UNION AND FOR THE ALIGNMENT OF ECONOMIC POLICIES, AND A FINAL STAGE BASED ON THE CUSTOMS UNION AND ENTAILING CLOSER COORDINATION OF ECONOMIC POLICIES .
23 EXAMINATION OF ARTICLE 12 OF THE AGREEMENT AND ARTICLE 36 OF THE PROTOCOL THEREFORE REVEALS THAT THEY ESSENTIALLY SERVE TO SET OUT A PROGRAMME AND ARE NOT SUFFICIENTLY PRECISE AND UNCONDITIONAL TO BE CAPABLE OF GOVERNING DIRECTLY THE MOVEMENT OF WORKERS .
25 CONSEQUENTLY, THE ANSWER TO BE GIVEN TO THE FIRST QUESTION IS THAT ARTICLE 12 OF THE AGREEMENT AND ARTICLE 36 OF THE PROTOCOL, READ IN CONJUNCTION WITH ARTICLE 7 OF THE AGREEMENT, DO NOT CONSTITUTE RULES OF COMMUNITY LAW WHICH ARE DIRECTLY APPLICABLE IN THE INTERNAL LEGAL ORDER OF THE MEMBER STATES .
28 AS TO THE POINT WHETHER ARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS HAS ANY BEARING ON THE ANSWER TO THAT QUESTION, IT MUST BE OBSERVED THAT, AS THE COURT RULED IN ITS JUDGMENT OF 11 JULY 1985 IN JOINED CASES 60 AND 61/84 CINETHEQUE V FEDERATION NATIONALE DES CINEMAS FRANCAIS (( 1985 )) ECR 2605, AT P . 2618, ALTHOUGH IT IS THE DUTY OF THE COURT TO ENSURE OBSERVANCE OF FUNDAMENTAL RIGHTS IN THE FIELD OF COMMUNITY LAW, IT HAS NO POWER TO EXAMINE THE COMPATIBILITY WITH THE EUROPEAN CONVENTION ON HUMAN RIGHTS OF NATIONAL LEGISLATION LYING OUTSIDE THE SCOPE OF COMMUNITY LAW . IN THIS CASE, HOWEVER, AS IS APPARENT FROM THE ANSWER TO THE FIRST QUESTION, THERE IS AT PRESENT NO PROVISION OF COMMUNITY LAW DEFINING THE CONDITIONS IN WHICH MEMBER STATES MUST PERMIT THE FAMILY REUNIFICATION OF TURKISH WORKERS LAWFULLY SETTLED IN THE COMMUNITY . IT FOLLOWS THAT THE NATIONAL RULES AT ISSUE IN THE MAIN PROCEEDINGS DID NOT HAVE TO IMPLEMENT A PROVISION OF COMMUNITY LAW . IN THOSE CIRCUMSTANCES, THE COURT DOES NOT HAVE JURISDICTION TO DETERMINE WHETHER NATIONAL RULES SUCH AS THOSE AT ISSUE ARE COMPATIBLE WITH THE PRINCIPLES ENSHRINED IN ARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS .