C-77/82

JUDGMENT OF 23. 3. 1983 — CASE 77/82

In Case 77/82

REFERENCE to the Court under Article 177 of the EEC Treaty by the Sozialgericht [Social Court] Stuttgart for a preliminary ruling in the action pending before that court between

A N A S T A S I A P E S K E L O G L O U

and

BUNDESANSTALT FÜR ARBEIT, Nürnberg [Federal Employment Office, Nuremberg], represented by the Director of the Arbeitsamt [Employment Office]

Facts and Issues

The facts of the case, the course of I — Facts and written procedure the procedure and the observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized The plaintiff in the main action, Mrs as follows: Peskeloglou, is a Greek national born in

PESKELOGLOU v BUNDESANSTALT FÜR ARBEIT

The plaintiff in the main action was main action is unfounded. However, in adversely affected by an amendment to view of the fact that in its opinion those the national legislation applicable which rules might conflict with the second was made after she had submitted her subparagraph of Article 45 (1) of the Act application for the grant of a work concerning the Conditions of Accession permit. of the Hellenic Republic and the Adjustments to the Treaties (hereinafter According to the court making the referred to as "the Act of Accession"), reference, until 13 August 1981, Article the national court considers that it is 19 of the Arbeitsförderungsgesetz [Law important to determine whether that on the promotion of employment] as provision "permits the national laws to amended by the Law of 19 June 1969 be made more stringent", as they were in (Bundesgesetzblatt I, p. 582) provided this case. that the applicant was legally entitled to the grant of a work permit if, regard The second subparagraph of Article 45 being had to the situation and labour (1) of the Act of Accession provides: market developments, the position referred to by her could not be filled by "The present Member States and the German workers or foreign workers Hellenic Republic may maintain in force having a prior claim to employment. until 1 January 1988, with regard to Hellenic nationals and to nationals of the present Member States respectively, That provision was amended by the sixth national provisions submitting to prior Law amending the Arbeitsförderungs- authorization immigration undertaken gesetz, the Wartezeitgesetz [Law on with a view to pursuing an activity as an waiting periods], which entered into employed person and/or the taking up force on 14 August 1981.

described. Under the second paragraph of Article 1 of the sixth order, a work permit for a However, in view of the doubt over the fist employment may be granted to interpretation of the second subpara- spouses of foreign workers "if they have graph of Article 45 (1) of the Act of

Accession, it appears to the national Mr Kranidiotis, Advocate, and the court necessary to refer the matter to the Commission of the European Com- European Court of Justice and to submit munities, represented by Mr Beschel, a to it the following question: member of its Legal Department, acting as Agent. "May the second subparagraph of Article 45 (1) of the Act concerning the By order of 15 December 1982, the Conditions of Accession of the Hellenic Court, after establishing that no Member Republic and the Adjustments to the State or institution, being a party to the Treaties, which constitute one of the proceedings, had requested that the case Documents concerning the accession of be decided in plenary session, assigned it the Hellenic Republic to the European to the Fourth Chamber pursuant to Economic Community, to the European Article 95 (1) and (2) of the Rules of Atomic Energy Community and to the Procedure. European Coal and Steel Community (Bundesgesetzblatt, Part II, p. 230 et Upon hearing the report of the Judge- seq.), be interpreted as permitting the Rapporteur and the views of the existing national rules contained in Advocate General, the Court (Fourth Article 19 of the Arbeitsförderungsgesetz Chamber) decided to open the oral [Law on the promotion of employment], procedure without any preparatory which cover the first grant of a work inquiry. However, it requested the Bun- permit to a Greek national, according to desanstalt für Arbeit or the Federal which the work permit is to be issued Republic of Germany to present oral according to the situation and evolution argument at the sitting. of the employment market in the light of the circumstances of the individual case, to be made more stringent by virtue of I I — Written observations sub- the fact that by the sixth Law amending m i t t e d to t h e C o u r t u n d e r the Arbeitsförderungsgesetz, namely the A r t i c l e 20 of t h e P r o t o c o l Wartezeitgesetz [Law on waiting on the S t a t u t e of t h e C o u r t periods] of 3 August 1981 (Bundes- of J u s t i c e of t h e E E C gesetzblatt, Part I, p. 802), in con-

two years?" creasing the differences which exist The order making the reference was between the two social orders concerned. received at the Court Registry on 23 A Member State which adopts such rules February 1982. commits a breach of the principle of fairness and mutual confidence and In accordance with Article 20 of the injures the other Contracting Party. Protocol on the Statute of the Court of Justice of the EEC, written observations The Greek Government considers that it were submitted by the plaintiff in the follows from the second subparagraph of main action, represented by Messrs Article 45 (1) of the Act of Accession Gutmann and Wohlfarth, Rechtsanwälte, that the Member States and the Hellenic the Greek Government, represented by Republic are entitled but not required to

The accession of a new Member State Since this case relates to a breach of a cannot result in an amendment of that fundamental right of the plaintiff, that is principle in the framework of to say the right to work, the Greek "conditions . of admission" and the Government considers that it is appro- "adjustments . . . necessitated thereby" priate to apply the European Convention referred to in Article 237 of the Treaty. for the Protection of Human Rights.

During a transitional period the right to Next it seeks to show that the second free movement may of course be subject subparagraph of Article 45 (1) of the Act to limitation so far as the relations of the of Accession "is directly applicable" and original Member States with the new that it "creates rights and obligations for Member State are concerned; however, nationals of the Member States". It "any such rules may be only transitional concludes from that that the possibility and limited in content to what is strictly of a Member State's amending its necessary". national legislation so as to make it less favourable would also constitute a breach of the principle of legal certainty, It was in that spirit, that is to say as an since it would "impair" the position of a exceptional measure, limited in time and national of another Member State. having a precisely-defined content, that

JUDGMENT OF 23. 3. 1983 — CASE 77/82

follows from Articles 10 and 11 of Regu- Under those circumstances the fact that lation (EEC) No 1612/68 of the Council Article 45 of the Act of Accession of 15 October 1968 on freedom of permits the Member State to "maintain movement for workers within the in force" their national provisions was Community (Official Journal, English intended to permit the 10 Member States Special Edition 1968 (II), p. 475). "to make arrangements progressively to adapt themselves to the new situation". On the other hand, if that provision were Even if a member of a migrant worker's interpreted "as authorizing the Member family has failed to fulfil the pre- States to avoid putting into application condition of the residence period of the principle of free movement beyond three years, the general national pro- the limits laid down" it "would wholly visions on the access of foreign workers contradict the objective of the to employment would nevertheless apply transitional rules". to him during the transitional period. Since those national provisions must comply with the "stand-still" obligation In addition, the expression "maintain in laid down in the second subparagraph of force" shows in all the linguistic versions Article 45 (1) of the Act of Accession, it that the maintenance of the existing would be improper to interpret the national provisions constitutes the limit second subparagraph of Article 45 (2) as beyond which no restriction on the authorizing the national legislature, principle of free movement may be contrary to that obligation, to "reduce" accepted. especially for a member of the migrant

PESKELOGLOU v BUNDESANSTALT FÜR ARBEIT

of Article 45 (1) without any other conferred on Greek migrant workers and formality. the members of their families by virtue of Consequently, the Commission proposes such national provisions." the following answer to the question put to the Court by the Sozialgericht Stuttgart: II — O r a l p r o c e d u r e "The second subparagraph of Article 45 (1) of the Act concerning the Conditions At the sitting on 26 January 1983 oral of Accession of the Hellenic Republic argument was presented and questions and the Adjustments to the Treaties must put by the Court were answered by die be interpreted as prohibiting national following: Mr Gutmann, for the plaintiff legislatures from amending national in the main action; Evagelos Tsekouras, provisions existing at the time of acting as Agent, for the Greek accession, which make immigration Government; and Mr Beschel, a member undertaken with a view to pursuing an of the Commission's Legal Department, activity as an employed person or the for the Commission of the European taking up and pursuit of paid Communities. employment or both subject to prior The Advocate General deliverd fis authorization so as to subject to opinion at the sitting on 23 February additional restrictions the rights 1983.

Decision

1 By an o r d e r dated 15 February 1982 which was received at the C o u r t Registry on 23 F e b r u a r y 1982, the Sozialgericht [Social C o u r t ] Stuttgart referred to the C o u r t of Justice for a preliminary ruling u n d e r Article 177 of the E E C T r e a t y a question o n the interpretation of the second subparagraph of Article 45 (1) of the Act concerning the Conditions of Accession of the Hellenic Republic and the Adjustments to the Treaties (Official J o u r n a l 1979, L 2 9 1 , p . 17), hereinafter referred to as " t h e Act of Accession".

6 The Sozialgericht, considering that it was necessary to determine the dispute on the basis of the amended legislation, took the view that the main action was unfounded under the law in force on 1 October 1981. However, since in its view the amendments thus made might be incompatible with Article 45 (1) of the Act of Accession, it decided to stay the proceedings and to refer to the Court of Justice the following question:

"May the second subparagraph of Article 45 (1) of the Act concerning the Conditions of Accession of the Hellenic Republic and the Adjustments to the Treaties, which constitute one of the Documents concerning the accession of the Hellenic Republic to the European Economic Community, to the European Atomic Energy Community and to the European Coal and Steel Community (Bundesgesetzblatt, Part II, p. 280 et seq.), be interpreted as permitting the existing national rules contained in Article 19 of the Arbeits- förderungsgesetz [Law on the promotion of employment], which cover the first grant of a work permit to a Greek national, according to which the work permit is to be issued according to the situation and evolution of the employment market in the light of the circumstances of the individual case,

PESKELOGLOU v BUNDESANSTALT FÜR ARBEIT

to be made more stringent by virtue of the fact that by the sixth Law amending the Arbeitsförderungsgesetz, namely the Wartezeitgesetz [Law on waiting periods] of 3 August 1981 (Bundesgesetzblatt, Part I, p. 802), in conjunction with the sixth order, dated 24 September 1981, amending the Arbeitserlaubnisverordnung [Work Permits Order] (Bundesgesetzblatt Part I, p. 1042), the first grant of a work permit is made subject also in the case of a Greek national to the additional requirement of completion of a waiting period of at least two years?"

JUDGMENT OF 23. 3. 1983 — CASE 77/82

be reduced to 18 months as from 1 January 1984. However, the third subparagraph of Article 45 (2) expressly provides that the rules of paragraph (2) "shall not prejudice more favourable national provisions".

io In this case, the plaintiff in the main action is a Greek national, married to a worker of the same nationality; she is therefore covered both by Article 45 (1) and by Article 45 (2). As the question submitted by the national court expressly refers to Article 45 (1), that provision should be considered in the first place.

n The transitional provision contained in the second subparagraph of Article 45 (1) of the Act of Accession authorizes the existing Member States to maintain in force until 1 January 1988 with regard to Greek nationals national provisions submitting to prior authorization immigration undertaken with a view to pursuing an activity as an employed person or the taking up and pursuit of paid employment. It should be noted that the same right was conferred upon Greece in its relations with the other Member States.

i2 That provision, which is intended to prevent disturbance of the labour market both in Greece and in the other Member States as a result of immediate and substantial movements of workers following accession, constitutes a derogation from the principle of the free movement of workers laid down in Article 48 of the EEC Treaty. As such it must be interpreted restrictively, as is apparent from Article 44 of the Act of Accession which lays down the principle that Article 48 of the Treaty is immediately applicable, subject to the transitional provisions contained inter alia in Article 45.

i6 The costs incurred by the Greek Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the proceedings before the national court, costs are a matter for that court.

On those grounds,

T H E C O U R T (Fourth Chamber),

in answer to the question submitted to it by the Sozialgericht Stuttgart by order of 15 February 1982, hereby rules:

Article 45 (1) of the Act concerning the Conditions of Accession of the Hellenic Republic and the Adjustments to the Treaties (Official Journal 1979, L 291, p. 17) must be interpreted as not permitting national

OPINION OF SIR GORDON SLYNN — CASE 77/82

My Lords, Employment Office (Bundesanstalt für Arbeit) for the annulment of the refusal Mrs Peskeloglou is a Greek national. On of a work permit. Before the Court it 28 November 1980 she went to the was pointed out that: Federal Republic of Germany to join her husband, apparently also a Greek national working in Germany. On 31 May 1981 she applied for a work permit (a) Article 19 of the Law on the in order to take up employment as a Promotion of Employment (Arbeits- kitchen assistant in Stuttgart. That was förderungsgesetz as amended by the refused. It seems that the initial decision Law of 19 June 1969 Bundes- was taken on 30 June 1981 and a gesetzblatt I, p. 582) provided that complaint against it dismissed on 28 non-German nationals required a August 1981. work permit, the issue of which was to depend on the state of the labour She brought proceedings in the Sozial- market and individual circumstances; gericht, Stuttgart against the Federal but that