1 The EEC-Turkey Association Agreement Focusing on Free Movement of Workers Carsten Zatschler Legal Secretary to Judge Schiemann, ECJ.

1

The EEC-Turkey Association AgreementThe EEC-Turkey Association AgreementFocusing on Free Movement of WorkersFocusing on Free Movement of Workers

Carsten ZatschlerCarsten Zatschler

Legal Secretary to Judge Schiemann, ECJLegal Secretary to Judge Schiemann, ECJ

..

2

Ankara Ankara AcquisAcquis

Agreement Establishing an Association Agreement Establishing an Association Between the European Economic Between the European Economic Community and Turkey (Signed at Community and Turkey (Signed at Ankara, 1 September 1963) = Ankara, 1 September 1963) = AAAA

Additional Protocol (Signed at Brussels, Additional Protocol (Signed at Brussels, 23 November 1970) = 23 November 1970) = APAP

Decisions of the Association Council = Decisions of the Association Council = ACAC

Case Law of the ECJCase Law of the ECJ Directives 2003/86 and 2003/109Directives 2003/86 and 2003/109

3

Aims of the AAAims of the AA

““ensure a continuous improvement in ensure a continuous improvement in living conditions in Turkey and in the EEC living conditions in Turkey and in the EEC through accelerated economic progress through accelerated economic progress and the harmonious expansion of trade, and the harmonious expansion of trade, and to reduce the disparity between the and to reduce the disparity between the Turkish economy and the economies of the Turkish economy and the economies of the Member States of the Community” Member States of the Community”

““facilitate the accession of Turkey to the facilitate the accession of Turkey to the Community at a later date”Community at a later date”

4

Means – AAMeans – AA Establishment of a Customs Union (Arts 3, 4, 5 and 10)Establishment of a Customs Union (Arts 3, 4, 5 and 10)

Achieved in 1995: AC Decision 1/95Achieved in 1995: AC Decision 1/95 Prohibition of discrimination on grounds of nationality Prohibition of discrimination on grounds of nationality

(Art 9)(Art 9) Agree to be “guided by” the EC Treaty provisions in Agree to be “guided by” the EC Treaty provisions in

abolishing restrictions on freedom of movement of abolishing restrictions on freedom of movement of workers (Art 12), establishment (Art 13) and provision workers (Art 12), establishment (Art 13) and provision of services (Art 14)of services (Art 14)

Free movement of payments and capital (Arts 19, 20)Free movement of payments and capital (Arts 19, 20) Applying provisions on competition, taxation and the Applying provisions on competition, taxation and the

approximation of laws of EC Treaty to Turkey (Art 16)approximation of laws of EC Treaty to Turkey (Art 16)

Establishment of an Association Council to lay down Establishment of an Association Council to lay down more detailed arrangements (Art 6)more detailed arrangements (Art 6)

5

Additional Protocol (AP)Additional Protocol (AP)

Title I (Arts 2-35): Customs Union and Title I (Arts 2-35): Customs Union and Free Movement of GoodsFree Movement of Goods

Title II (Arts 36-42): Movement of Title II (Arts 36-42): Movement of Persons and ServicesPersons and Services

Title III (Arts 43-56): Alignment of Title III (Arts 43-56): Alignment of Economic PoliciesEconomic Policies

6

Key issues regardingKey issues regardingworkers and their familiesworkers and their families

Admission to a Member StateAdmission to a Member State Residence in a Member StateResidence in a Member State Right to equal treatment with regard Right to equal treatment with regard

to:to: Conditions of workConditions of work Access to educationAccess to education Access to social securityAccess to social security

Expulsion from a Member StateExpulsion from a Member State

7

AP on workersAP on workers

Non-discrimination – Art 37:Non-discrimination – Art 37:

““As regards conditions of work and remuneration, the rules which each Member State applies to workers of Turkish nationality employed in the Community shall not discriminate on grounds of nationality between such workers and workers who are nationals of other Member States of the Community.”

8

AP on services and establishmentAP on services and establishment

Standstill Clause – Art 41(1):

“The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.”

9

AC Decision 1/80 – Article 6 AC Decision 1/80 – Article 6

Provides for a “ladder” of rights for Turkish Provides for a “ladder” of rights for Turkish workers in a particular Member State workers in a particular Member State depending on their length of employment:depending on their length of employment: After 1 year: After 1 year: renewal of work permit for the

same employer, if a job is available After 3 years: subject to the priority to be given

to workers of Member States, to respond to another offer of employment, with an employer of his choice, for the same occupation

After 4 years: free access to any paid employment of his choice

10

AC Decision 1/80 – Article 7AC Decision 1/80 – Article 7

Members of the family of a Turkish worker who have been authorized to join him have the right: After 3 years’ residence: subject to the priority to

be given to workers of Member States, to respond to any offer of employment

After 5 years’ residence: to free access to any paid employment of their choice

Free access for children who have completed a course of vocational training in the host country, provided a parent has worked there for 3 years

11

AC Decision 1/80 – Article 10(1)AC Decision 1/80 – Article 10(1)

“The Member States of the Community shall as regards remuneration and other conditions of work grant Turkish workers duly registered as belonging to their labour forces treatment involving no discrimination on the basis of nationality between them and Community workers.”

12

Key issues regarding workersKey issues regarding workers

Admission to a Member StateAdmission to a Member State Residence in a Member StateResidence in a Member State Right to equal treatment with regard Right to equal treatment with regard

to:to: Working Conditions Working Conditions Access to educationAccess to education Access to social securityAccess to social security

Expulsion from a Member StateExpulsion from a Member State

13

Direct EffectDirect Effect

““Holding Politicians to their Word”Holding Politicians to their Word” Many provisions of the AA and AP are Many provisions of the AA and AP are

programmatic in nature and “are not programmatic in nature and “are not sufficiently precise and unconditional to be sufficiently precise and unconditional to be capable of governing directly movement of capable of governing directly movement of workers” workers” (Case 12/86 Demirel)(Case 12/86 Demirel)

However some provisions, notably of AC However some provisions, notably of AC Decisions, are sufficiently precise and can Decisions, are sufficiently precise and can thus be relied upon directly by workersthus be relied upon directly by workers

(Case C-192/89 Sevince)(Case C-192/89 Sevince)

14

Example of provision NOT having Example of provision NOT having direct effectdirect effect

Article 12 AA:Article 12 AA:

““The Contracting Parties agree to be The Contracting Parties agree to be guided by Articles 48, 49 and 50 the guided by Articles 48, 49 and 50 the Treaty establishing the Community Treaty establishing the Community for the purpose of progressively for the purpose of progressively securing freedom of movement for securing freedom of movement for workers between them.”workers between them.”

15

Example of provision havingExample of provision havingdirect effectdirect effect

Article 37 AP:Article 37 AP:““As regards conditions of work and remuneration, the rules which each Member State applies to workers of Turkish nationality employed in the Community shall not discriminate on grounds of nationality between such workers and workers who are nationals of other Member States of the Community.”

16

(First) Admission to a(First) Admission to aMember StateMember State

In principle governed by each Member In principle governed by each Member State – there are no provisions granting a State – there are no provisions granting a right to enter or work in AA, AP, etc.right to enter or work in AA, AP, etc.

But: standstill rule in Art 41(1) APBut: standstill rule in Art 41(1) AP Interpreted, concerning visa requirements, Interpreted, concerning visa requirements,

by ECJ by ECJ (C-16/05 Tum and Dari, C-228/06 Soysal)(C-16/05 Tum and Dari, C-228/06 Soysal):: Art 41(1) has direct effectArt 41(1) has direct effect Visa requirements are restrictions on freedom Visa requirements are restrictions on freedom

to provide servicesto provide services Therefore no additional visa requirements can Therefore no additional visa requirements can

be introduced after entry into force of APbe introduced after entry into force of AP

17

Effects of Art 41(1) APEffects of Art 41(1) APstandstill rulestandstill rule

Conflict with “negative list” in Council Conflict with “negative list” in Council Regulation 539/2001?Regulation 539/2001?

Primacy of international agreements (such as Primacy of international agreements (such as AA and AP) over secondary legislationAA and AP) over secondary legislation

Position as regards some “new” Union Position as regards some “new” Union Member States who, prior to Regulation Member States who, prior to Regulation 539/2001, had visa-free travel with Turkey – 539/2001, had visa-free travel with Turkey – e.g. Romania?e.g. Romania?

Does the freedom to provide services include Does the freedom to provide services include the freedom to receive services – e.g. as a the freedom to receive services – e.g. as a tourist?tourist?

18

(First) Admission(First) Admissionfor Family Membersfor Family Members

Family Reunification Directive 2003/86 Family Reunification Directive 2003/86 (unlike AC Decision 1/80) grants right of (unlike AC Decision 1/80) grants right of first entry into Member Statesfirst entry into Member States

Maximum of 12 months until Maximum of 12 months until employment can be taken up (quicker employment can be taken up (quicker than 3 years provided for in AC than 3 years provided for in AC Decision 1/80)Decision 1/80)

19

Residence in a Member StateResidence in a Member State

Article 6 of AC Decision 1/80 “ladder of Article 6 of AC Decision 1/80 “ladder of rights” to workrights” to work

ECJ: right to work implies right to resideECJ: right to work implies right to reside Reason for first entry into Member Reason for first entry into Member

State is irrelevant; e.g. State is irrelevant; e.g. au pairau pair (C-294/06 (C-294/06 Payir)Payir)

Acquisition of rights depends on Acquisition of rights depends on accumulation of “legal employment”accumulation of “legal employment”

Once a rung on the ladder is reached, it Once a rung on the ladder is reached, it cannot be lostcannot be lost

20

Residence for Family MembersResidence for Family Members

Article 7 of Decision 1/80Article 7 of Decision 1/80 Once a family member has rights Once a family member has rights

under Decision 1/80, Member States under Decision 1/80, Member States cannot attach conditions to residencecannot attach conditions to residence

No right to move between Member No right to move between Member States under Decision 1/80States under Decision 1/80

Long Term Residence Directive Long Term Residence Directive 2003/19 grants right to move 2003/19 grants right to move between Member Statesbetween Member States

21

Equal Treatment IEqual Treatment IWorking ConditionsWorking Conditions

Direct effect of Art 10(1) of AC Direct effect of Art 10(1) of AC Decision 1/80Decision 1/80

Wide interpretation in line with Art 39 Wide interpretation in line with Art 39 ECEC

Election to representative bodies Election to representative bodies (C-(C-171/01 Wählergruppe Gemeinsam)171/01 Wählergruppe Gemeinsam)

Playing Football in Spain Playing Football in Spain (C-152/08 Kahveci)(C-152/08 Kahveci)

22

Equal Treatment IIEqual Treatment IIEducationEducation

Article 9 of AC Decision 1/80:Article 9 of AC Decision 1/80:“Turkish children residing legally in a Member State of the Community with their parents who are or have been legally employed in that Member State, shall be admitted to courses of general education, apprenticeship and vocational training under the same educational entry qualifications as the children of nationals of that Member State. They may in that Member State be eligible to benefit from the advantages provided for under the national legislation in this area.”

23

Art 9 of AC Decision 1/80 has direct Art 9 of AC Decision 1/80 has direct effecteffect

It covers all forms of education, It covers all forms of education, including university educationincluding university education

Students (children) do not have to Students (children) do not have to reside with parentsreside with parents

Students are eligible for all grants Students are eligible for all grants available to Member State nationalsavailable to Member State nationals

Aim: equal opportunitiesAim: equal opportunities

24

Equal Treatment IIIEqual Treatment IIISocial SecuritySocial Security

AC Decision 3/80AC Decision 3/80 Commission proposal of 8 February Commission proposal of 8 February

1983 to the Council – never acted 1983 to the Council – never acted uponupon

No direct effect for majority of AC No direct effect for majority of AC Decision 3/80 Decision 3/80 (C-277/94 Taflan-Met)(C-277/94 Taflan-Met)

But: direct effect of non-But: direct effect of non-discrimination clause in Art 3(1) discrimination clause in Art 3(1) (C-(C-262/96 Sürül, C-373/02 Öztürk)262/96 Sürül, C-373/02 Öztürk)

25

Expulsion from a Member StateExpulsion from a Member State

Right of residence under AC Decision Right of residence under AC Decision 1/80 ceases where a worker :1/80 ceases where a worker : is no longer part of the labour forceis no longer part of the labour force does not observe Art 6(1) conditionsdoes not observe Art 6(1) conditions public policy, public security or public

health (Art 14(1)) interpreted restrictivelyinterpreted restrictively genuine and sufficiently serious threatgenuine and sufficiently serious threat no general deterrence argumentno general deterrence argument