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

2 Ankara Acquis Agreement Establishing an Association Between the European Economic Community and Turkey (Signed at Ankara, 1 September 1963) = AA Agreement Establishing an Association Between the European Economic Community and Turkey (Signed at Ankara, 1 September 1963) = AA Additional Protocol (Signed at Brussels, 23 November 1970) = AP Additional Protocol (Signed at Brussels, 23 November 1970) = AP Decisions of the Association Council = AC Decisions of the Association Council = AC Case Law of the ECJ Case Law of the ECJ Directives 2003/86 and 2003/109 Directives 2003/86 and 2003/109

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

4 Means – 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 1/95 Achieved in 1995: AC Decision 1/95 Prohibition of discrimination on grounds of nationality (Art 9) Prohibition of discrimination on grounds of nationality (Art 9) Agree to be “guided by” the EC Treaty provisions in abolishing restrictions on freedom of movement of workers (Art 12), establishment (Art 13) and provision of services (Art 14) Agree to be “guided by” the EC Treaty provisions in abolishing restrictions on freedom of movement of workers (Art 12), establishment (Art 13) and provision 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 approximation of laws of EC Treaty to Turkey (Art 16) Applying provisions on competition, taxation and the approximation of laws of EC Treaty to Turkey (Art 16) Establishment of an Association Council to lay down more detailed arrangements (Art 6) Establishment of an Association Council to lay down more detailed arrangements (Art 6)

5 Additional Protocol (AP) Title I (Arts 2-35): Customs Union and Free Movement of Goods Title I (Arts 2-35): Customs Union and Free Movement of Goods Title II (Arts 36-42): Movement of Persons and Services Title II (Arts 36-42): Movement of Persons and Services Title III (Arts 43-56): Alignment of Economic Policies Title III (Arts 43-56): Alignment of Economic Policies

6 Key issues regarding workers and their families Admission to a Member State Admission to a Member State Residence in a Member State Residence in a Member State Right to equal treatment with regard to: Right to equal treatment with regard to: Conditions of work Conditions of work Access to education Access to education Access to social security Access to social security Expulsion from a Member State Expulsion from a Member State

7 AP 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 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 Provides for a “ladder” of rights for Turkish workers in a particular Member State depending on their length of employment: Provides for a “ladder” of rights for Turkish workers in a particular Member State 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 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) “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 workers Admission to a Member State Admission to a Member State Residence in a Member State Residence in a Member State Right to equal treatment with regard to: Right to equal treatment with regard to: Working Conditions Working Conditions Access to education Access to education Access to social security Access to social security Expulsion from a Member State Expulsion from a Member State

13 Direct Effect “Holding Politicians to their Word” “Holding Politicians to their Word” Many provisions of the AA and AP are programmatic in nature and “are not sufficiently precise and unconditional to be capable of governing directly movement of workers” (Case 12/86 Demirel) Many provisions of the AA and AP are programmatic in nature and “are not sufficiently precise and unconditional to be capable of governing directly movement of workers” (Case 12/86 Demirel) However some provisions, notably of AC Decisions, are sufficiently precise and can thus be relied upon directly by workers However some provisions, notably of AC Decisions, are sufficiently precise and can thus be relied upon directly by workers (Case C-192/89 Sevince)

14 Example of provision NOT having direct effect Article 12 AA: “The Contracting Parties agree to be guided by Articles 48, 49 and 50 the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers between them.”

15 Example of provision having direct 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 Member State In principle governed by each Member State – there are no provisions granting a right to enter or work in AA, AP, etc. In principle governed by each Member State – there are no provisions granting a right to enter or work in AA, AP, etc. But: standstill rule in Art 41(1) AP But: standstill rule in Art 41(1) AP Interpreted, concerning visa requirements, by ECJ (C-16/05 Tum and Dari, C-228/06 Soysal) : Interpreted, concerning visa requirements, by ECJ (C-16/05 Tum and Dari, C-228/06 Soysal) : Art 41(1) has direct effect Art 41(1) has direct effect Visa requirements are restrictions on freedom to provide services Visa requirements are restrictions on freedom to provide services Therefore no additional visa requirements can be introduced after entry into force of AP Therefore no additional visa requirements can be introduced after entry into force of AP

17 Effects of Art 41(1) AP standstill rule Conflict with “negative list” in Council Regulation 539/2001? Conflict with “negative list” in Council Regulation 539/2001? Primacy of international agreements (such as AA and AP) over secondary legislation Primacy of international agreements (such as AA and AP) over secondary legislation Position as regards some “new” Union Member States who, prior to Regulation 539/2001, had visa-free travel with Turkey – e.g. Romania? Position as regards some “new” Union Member States who, prior to Regulation 539/2001, had visa-free travel with Turkey – e.g. Romania? Does the freedom to provide services include the freedom to receive services – e.g. as a tourist? Does the freedom to provide services include the freedom to receive services – e.g. as a tourist?

18 (First) Admission for Family Members Family Reunification Directive 2003/86 (unlike AC Decision 1/80) grants right of first entry into Member States Family Reunification Directive 2003/86 (unlike AC Decision 1/80) grants right of first entry into Member States Maximum of 12 months until employment can be taken up (quicker than 3 years provided for in AC Decision 1/80) Maximum of 12 months until employment can be taken up (quicker than 3 years provided for in AC Decision 1/80)

19 Residence in a Member State Article 6 of AC Decision 1/80 “ladder of rights” to work Article 6 of AC Decision 1/80 “ladder of rights” to work ECJ: right to work implies right to reside ECJ: right to work implies right to reside Reason for first entry into Member State is irrelevant; e.g. au pair (C-294/06 Payir) Reason for first entry into Member State is irrelevant; e.g. au pair (C-294/06 Payir) Acquisition of rights depends on accumulation of “legal employment” Acquisition of rights depends on accumulation of “legal employment” Once a rung on the ladder is reached, it cannot be lost Once a rung on the ladder is reached, it cannot be lost

20 Residence for Family Members Article 7 of Decision 1/80 Article 7 of Decision 1/80 Once a family member has rights under Decision 1/80, Member States cannot attach conditions to residence Once a family member has rights under Decision 1/80, Member States cannot attach conditions to residence No right to move between Member States under Decision 1/80 No right to move between Member States under Decision 1/80 Long Term Residence Directive 2003/19 grants right to move between Member States Long Term Residence Directive 2003/19 grants right to move between Member States

21 Equal Treatment I Working Conditions Direct effect of Art 10(1) of AC Decision 1/80 Direct effect of Art 10(1) of AC Decision 1/80 Wide interpretation in line with Art 39 EC Wide interpretation in line with Art 39 EC Election to representative bodies (C-171/01 Wählergruppe Gemeinsam) Election to representative bodies (C-171/01 Wählergruppe Gemeinsam) Playing Football in Spain (C-152/08 Kahveci) Playing Football in Spain (C-152/08 Kahveci)

22 Equal Treatment II Education 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 effect Art 9 of AC Decision 1/80 has direct effect It covers all forms of education, including university education It covers all forms of education, including university education Students (children) do not have to reside with parents Students (children) do not have to reside with parents Students are eligible for all grants available to Member State nationals Students are eligible for all grants available to Member State nationals Aim: equal opportunities Aim: equal opportunities

24 Equal Treatment III Social Security AC Decision 3/80 AC Decision 3/80 Commission proposal of 8 February 1983 to the Council – never acted upon Commission proposal of 8 February 1983 to the Council – never acted upon No direct effect for majority of AC Decision 3/80 (C-277/94 Taflan-Met) No direct effect for majority of AC Decision 3/80 (C-277/94 Taflan-Met) But: direct effect of non-discrimination clause in Art 3(1) (C-262/96 Sürül, C-373/02 Öztürk) But: direct effect of non-discrimination clause in Art 3(1) (C-262/96 Sürül, C-373/02 Öztürk)

25 Expulsion from a Member State Right of residence under AC Decision 1/80 ceases where a worker : Right of residence under AC Decision 1/80 ceases where a worker : is no longer part of the labour force is no longer part of the labour force does not observe Art 6(1) conditions does not observe Art 6(1) conditions public policy, public security or public health (Art 14(1)) interpreted restrictively interpreted restrictively genuine and sufficiently serious threat genuine and sufficiently serious threat no general deterrence argument no general deterrence argument