Land Nordrhein-Westfalen v Beata Pokrzeptowicz-Meyer.
Date: 2002-01-29
18 In order to answer the question as so rephrased, it is necessary to consider, at the outset, whether the first indent of Article 37(1) of the Europe Agreement may be relied upon by an individual before a national court and, if so, to determine the scope of the principle of non-discrimination laid down by that provision.
The direct effect of the first indent of Article 37(1) of the Europe Agreement
19 It should be noted first of all that, according to settled case-law, a provision in an agreement concluded by the Community with non-member countries must be regarded as being directly applicable when, having regard 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, inter alia, Case C-262/96 Sürül [1999] ECR I-2685, paragraph 60, and Case C-63/99 Gloszczuk [2001] ECR I-6369, paragraph 30).
20 In order to ascertain whether the first indent of Article 37(1) of the Europe Agreement meets those criteria, it is first necessary to consider the wording of that provision.
21 In this regard, it must be held that the limb of the sentence which appears in the first indent of Article 37(1) of the Europe Agreement lays down, in clear, precise and unconditional terms, a prohibition preventing each Member State from discriminating in relation to its own nationals, on grounds of their nationality, against Polish nationals covered by that provision as far as their conditions of employment, remuneration and dismissal are concerned. The Polish nationals who are entitled to the benefit of that provision are those who, having been previously granted the right to stay in a Member State, are legally employed there.
22 This rule of equal treatment lays down a precise obligation to produce a specific result and, by its nature, can be relied on by an individual to apply to a national court to set aside the discriminatory provisions of a Member State's legislation, without any further implementing measures being required for that purpose.
23 This interpretation is not affected by the argument of the Land Nordrhein-Westfalen, according to which the first indent of Article 37(1) of the Europe Agreement is not unconditional, since the principle set forth in that provision is put into effect [s]ubject to the conditions and modalities applicable in each Member State.
24 That proviso may not be interpreted in such a way as to allow the Member States to subject the principle of non-discrimination set forth in the first indent of Article 37(1) of the Europe Agreement to conditions or discretionary limitations. Such an interpretation would render that provision meaningless and deprive it of any practical effect.
27 Moreover, the fact that the Europe Agreement is intended essentially to promote the economic development of Poland 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 provisions of that Agreement (see Gloszczuk, cited above, paragraph 36).
28 Nor is the finding that the first indent of Article 37(1) of the Europe Agreement is directly applicable invalidated by an examination of Article 58(1) thereof. All that follows from that provision is that the authorities of the Member States remain competent to apply, while respecting the limits laid down by the Europe Agreement, inter alia their own national laws and regulations regarding entry, stay, employment and working conditions of Polish nationals. Consequently, Article 58(1) does not concern the Member States' implementation of the provisions of the Europe Agreement relating to the free movement of workers and is not intended to make implementation or the effects of the principle of non-discrimination laid down in the first indent of Article 37(1) of the Europe Agreement subject to the adoption of further national measures (see, as regards the provisions of the Europe Agreement concerning establishment, the judgment in Gloszczuk, paragraph 37).
29 Finally, as Advocate General Jacobs observes in paragraph 39 of his Opinion, in contrast to other provisions of the Europe Agreement, implementation of the first indent of Article 37(1) is not subject to the adoption by the Association Council, set up by that Agreement, of additional measures to define the modalities for its application.
30 In view of the foregoing considerations, the first indent of Article 37(1) of the Europe Agreement must be held to have direct effect, so that Polish nationals who assert it may also rely on it before the national courts of the host Member State.
The meaning of the first indent of Article 37(1) of the Europe Agreement
32 According to settled case-law, a mere similarity in the wording of a provision of one of the Treaties establishing the Communities and of an international agreement between the Community and a non-member country is not sufficient to give to the wording of that agreement the same meaning as it has in the Treaties (see Case 270/80 Polydor and RSO [1982] ECR 329, paragraphs 14 to 21; Case 104/81 Kupferberg [1982] ECR 3641, paragraphs 29 to 31; Case C-312/91 Metalsa [1993] ECR I-3751, paragraphs 11 to 20, and Gloszczuk, paragraph 48).
33 According to that case-law, the extension of the interpretation of a provision in the Treaty to a comparably, similarly or even identically worded provision of an agreement concluded by the Community with a non-member country depends on, inter alia, the aim pursued by each provision in its own particular context. A comparison between the objectives and context of the agreement and those of the Treaty is of considerable importance in that regard (see Metalsa, cited above, paragraph 11, and Gloszczuk, paragraph 49).
36 In this respect, the Court first of all noted, at paragraph 14 of its judgment in Spotti, that it had held in Case 33/88 Allué and Another [1989] ECR 1591, that Article 48(2) of the Treaty precludes the application of a provision of national law imposing a limit on the duration of the employment relationship between universities and foreign-language assistants where there is, in principle, no such limit with regard to other workers.
37 The Court then based its interpretation on the consideration that, since the great majority of foreign-language assistants were foreign nationals, the difference of treatment between them and other teachers with special duties, in so far as the reasons for allowing the making of fixed-term employment contracts were concerned, was such as to place the foreign nationals at a disadvantage compared with German nationals and, consequently, constituted indirect discrimination, prohibited by Article 48(2) of the Treaty, unless it was justified by objective reasons (Spotti, paragraphs 16 to 18).
38 The Court finally considered that, as it had already decided in Allué, cited above, the need to ensure up-to-date instruction cannot justify the imposition of a time-limit on the employment contracts of foreign-language assistants (Spotti, paragraph 20).
39 As regards the first indent of Article 37(1) of the Europe Agreement, it follows from a comparison of the aims and context of the Europe Agreement, on the one hand, with those of the EC Treaty, on the other hand, that there is no ground for giving to the aforementioned provision a meaning different from that which it was found to have by the Court in Spotti so far as Article 48(2) of the Treaty is concerned.
40 As the French Government has observed, the first indent of Article 37(1) of the Europe Agreement does not in fact lay down a principle of freedom of movement for Polish workers within the Community, whilst Article 48 of the Treaty establishes for the benefit of nationals of the Member States the principle of freedom of movement for workers.
41 However, the first indent of Article 37(1) of the Europe Agreement establishes, in favour of workers of Polish nationality, once they are legally employed within the territory of a Member State, a right to equal treatment as regards conditions of employment of the same extent as that conferred in similar terms by Article 48(2) of the Treaty on Member State nationals.
42 In particular, it follows from the wording of the first indent of Article 37(1) of the Europe Agreement, as well as from its aims, which seek to create an appropriate framework for the progressive integration of the Republic of Poland into the Community, that the prohibition of any kind of discrimination against Polish workers based on their nationality applies as much to direct discrimination as to indirect discrimination which might affect their conditions of employment.
49 According to settled case-law, in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, the substantive rules of Community law must be interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, their objectives or their general scheme that such effect must be given to them (see, in particular, Case 21/81 Bout [1982] ECR 381, paragraph 13, and Case C-34/92 GruSa Fleisch [1993] ECR I-4147, paragraph 22).
50 It also follows from settled case-law that new rules apply immediately to the future effects of a situation which arose under the old rules (see, among other cases, Case 270/84 Licata v Economic and Social Committee [1986] ECR 2305, paragraph 31). In application of that principle the Court has held, in particular, that since the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1) contains no specific conditions whatsoever with regard to the application of Article 6 of the EC Treaty (now, after amendment, Article 12 EC), that provision must be regarded as being immediately applicable and binding on the Republic of Austria from the date of its accession, with the result that it applies to the future effects of situations arising prior to that new Member State's accession to the Communities (Case C-122/96 Saldanha and MTS [1997] ECR I-5325, paragraph 14).
51 It is appropriate therefore, in order to reply to the second question, to determine whether the situation in which a fixed-term contract of employment was concluded prior to the date of the Europe Agreement's entry into force, for a term expiring after that date, constitutes a situation arising prior to the Europe Agreement, to which the Europe Agreement could therefore apply retrospectively only if it was clearly intended to have that effect, or whether it concerns, on the contrary, a situation which arose prior to the entry into force of that agreement but whose future effects are governed by it from the date of its entry into force, in accordance with the principle that new rules immediately apply to current situations.
52 The conclusion of a fixed-term contract of employment does not exhaust its legal effects on the date of its signature, but, on the contrary, continues regularly to produce its effects throughout the duration of that contract. Therefore, the application of a new rule, such as the first indent of Article 37(1) of the Europe Agreement, from the date of its entry into force, to a contract of employment concluded prior to its entry into force, cannot be regarded as affecting a situation arising prior to that date.
55 It follows from settled case-law that the scope of the principle of the protection of legitimate expectations cannot be extended to the point of generally preventing new rules from applying to the future effects of situations which arose under the earlier rules (see, among other cases, Case 278/84 Germany v Commission [1987] ECR 1, paragraph 36, and Case C-60/98 Butterfly Music [1999] ECR I-3939, paragraph 25).