S. Z. Sevince v Staatssecretaris van Justitie.
Date: 1990-09-20
8 By way of a preliminary observation, it should be borne in mind that, as the Court has consistently held, the provisions of an agreement concluded by the Council under Articles 228 and 238 of the EEC Treaty form an integral part of the Community legal system as from the entry into force of that agreement ( see judgments in Case 12/86 Demirel [1987] ECR 3719, paragraph 7 and in Case 30/88 Greece v Commission [1989] ECR 3711, paragraph 12 ).
9 The Court has also held that, since they are directly connected with the Agreement to which they give effect, the decisions of the Council of Association, in the same way as the Agreement itself, form an integral part, as from their entry into force, of the Community legal system ( see judgment in Case 30/88 Greece v Commission, supra, paragraph 13 ).
10 Since the Court has jurisdiction to give preliminary rulings on the Agreement, in so far as it is an act adopted by one of the institutions of the Community ( see judgment in Case 181/73 Haegeman [1974] ECR 449 ), it also has jurisdiction to give rulings on the interpretation of the decisions adopted by the authority established by the Agreement and entrusted with responsibility for its implementation .
11 That finding is reinforced by the fact that the function of Article 177 of the EEC Treaty is to ensure the uniform application throughout the Community of all provisions forming part of the Community legal system and to ensure that the interpretation thereof does not vary according to the interpretation accorded to them by the various Member States ( see judgments in Case 104/81 Kupferberg [1982] ECR 3641 and in Joined Cases 267 to 269/81 SPI and SAMI [1983] ECR 801 ).
14 In order to be recognized as having direct effect, the provisions of a decision of the Council of Association must satisfy the same conditions as those applicable to the provisions of the Agreement itself .
15 In Demirel, supra, the Court held 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 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 ( paragraph 14 ). The same criteria apply in determining whether the provisions of a decision of the Council of Association can have direct effect .
18 Similarly, Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80 contain an unequivocal "standstill" clause regarding the introduction of new restrictions on access to the employment of workers legally resident and employed in the territory of the contracting States .
20 According to Article 2(1 ) of the Agreement, its purpose is to promote the continuous and balanced strengthening of trade and economic relations between the parties, and it establishes between the European Economic Community and Turkey an association which 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 close coordination of economic policies ( see judgment in Case 12/86 Demirel, supra, paragraph 15 ). As far as freedom of movement for workers is concerned, Article 12 of the Agreement, forming part of Title II concerning implementation of the transitional stage, provides that the contracting parties agree to be guided by Articles 48, 49 and 50 of the EEC Treaty for the purpose of progressively securing freedom of movement for workers between them . Article 36 of the Additional Protocol signed on 23 November 1970, annexed to the Agreement establishing an association between the European Economic Community and Turkey, concluded by Regulation ( EEC ) No 2760/72 of the Council of 19 December 1972 ( Official Journal 1973 C 113, p . 17, hereinafter referred to as the "Additional Protocol ") lays down the time-limits for the progressive attainment of such freedom of movement and provides that the Council of Association is to decide on the rules necessary to that end .
21 Decisions Nos 2/76 and 1/80 were adopted by the Council of Association in order to implement Article 12 of the Agreement and Article 36 of the Additional Protocol which, in its judgment in Demirel, supra, the Court recognized as being intended essentially to set out a programme . Thus, in the preamble to Decision No 2/76 reference is expressly made to Article 12 of the Agreement and Article 36 of the Additional Protocol and Article 1 of the decision lays down the detailed arrangements for the first stage of implementation of Article 36 of the Additional Protocol . The third recital in the preamble to Decision No 1/80 refers to improving, in the social sphere, the conditions available to workers and members of their families in relation to the arrangements introduced by Decision No 2/76 . The fact that the abovementioned provisions of the Agreement and the Additional Protocol essentially set out a programme does not prevent the decisions of the Council of Association which give effect in specific respects to the programmes envisaged in the Agreement from having direct effect .
22 The conclusion that the articles of Decisions Nos 2/76 and 1/80 mentioned in the second question referred to the Court can have direct effect cannot be affected by the fact that Article 2(2 ) of Decision No 2/76 and Article 6(3 ) of Decision No 1/80 provide that the procedures for applying the rights conferred on Turkish workers are to be established under national rules . Those provisions merely clarify the obligation of the Member States to take such administrative measures as may be necessary for the implementation of those provisions, without empowering the Member States to make conditional or restrict the application of the precise and unconditional right which the decisions of the Council of Association grant to Turkish workers .
26 It follows from the foregoing considerations that it must be stated in reply to the second question submitted by the Raad van State that Article 2(1)(b ) of Decision No 2/76 and/or Article 6(1 ) of Decision No 1/80 and Article 7 of Decision No 2/76 and/or Article 13 of Decision No 1/80 have direct effect in the Member States of the European Community .
The third question
28 In replying to that question it must first be stated that the abovementioned provisions merely govern the circumstances of the Turkish worker as regards employment, and make no reference to his circumstances concerning the right of residence .
29 The fact nevertheless remains that those two aspects of the personal situation of a Turkish worker are closely linked and that by granting to such a worker, after a specified period of legal employment in the Member State, access to any paid employment of his choice, the provisions in question necessarily imply - since otherwise the right granted by them to the Turkish worker would be deprived of any effect - the existence, at least at that time, of a right of residence for the person concerned .
30 The legality of the employment within the meaning of those provisions, even assuming that it is not necessarily conditional upon possession of a properly issued residence permit, nevertheless presupposes a stable and secure situation as a member of the labour force .
31 In particular, although legal employment over a given period gives rise, at the end of that period, to recognition of a right of residence, it is inconceivable that a Turkish worker could contrive to fulfil that condition, and consequently be recognized as being vested with that right, merely because, having been refused a valid residence permit by the national authorities during that period and having exercised the rights of appeal provided for by national law against such refusal, he benefited from the suspensory effect deriving from his appeal and was therefore able to obtain authorization, on a provisional basis pending the outcome of the dispute, to reside and be employed in the Member State in question .