C-12/86

Mr President, again pregnant, she lodged an objection to Members of the Court, the aforementioned order, which was rejected by the competent authority on 9 July 1985. Mrs Demirel therefore brought an action before the Verwaltungsgericht (Administrative Court) Stuttgart seeking essentially the annulment of the order and of the decision rejecting her objection thereto. 1. Holding a visa valid until 9 June 1984, Mrs Meryem Demirel, a Turkish national, entered the Federal Republic of Germany on 17 March 1983 together with her son in order to join her husband (also of Turkish nationality) whom she had married on 24 August 1981. Her husband had entered the Federal Republic of Germany on 13 3. The Verwaltungsgericht Stuttgart has September 1979 for the purposes of stated that the contested administrative rejoining his family ('reunification'); he is in decisions were in conformity with the lawful employment there. national legislation now applying to those circumstances, by virtue of which the German provisions on family reunification could not be applied to Mrs Demirel's case until 12 September 1987. The order making the reference traces the development of the rules at issue. The circulars issued by the Ministry of the Interior of the Land Baden- 2. Despite the restrictive endorsements on Württemberg on 25 July 1966 and 31 the visa ('Not issued for reunification of January 1975 allowed family reunification families; valid only for the purposes of a when the foreign worker had lawfully visit; paid activities not permitted') and resided in the Federal Republic of Germany despite the limit imposed on the term of for three years and when it was probable that residence and her own formal undertaking he would continue for some time to carry on 8 June 1984 to leave German territory on a trade or profession on German on 11 June, Mrs Demirel did not return to territory. However, in 1982 and 1984 the Turkey, on the ground that she was same ministry issued two new circulars pregnant and had no accommodation or implementing the Federal Ausländergesetz financial resources available to her in her (Aliens Law), as amended at that time, by country of origin. She was then ordered to increasing to eight years the requirement leave the country by the Stadt Schwäbisch of uninterrupted residence on German Gmünd on 28 May 1985, with the threat of territory. The rules were therefore expulsion should she not have left German tightened. As a result, Mrs Demirel's family territory by 5 June 1985 at the latest. On 12 cannot claim the right to reunification until June 1985, on the ground that she was once 13 September 1987, and this is reflected by * Translated from the French.

the order contested before the national the national court led it to the conclusion court, since it is effective only until 12 that, having regard to both the case-law of September 1987. the Court and the rules of the Treaty, that particularity did not affect the Community nature of the Agreement. The national court did not therefore submit a question on that subject. On the other hand, without denying that the Court of Justice may be called upon to interpret any external agreement to 4. The case is not an isolated one. It is the which the Community is a party, the second occasion on which the Verwaltungs German Government and the United gericht Stuttgart has sought a preliminary Kingdom, in their written observations, ruling, having previously referred a similar took issue with that view.

2 the Agreement establishing an association Haegeman v Belgium, Article 177 has no between the EEC and Turkey and Article application. The German Government 36 of the Additional Protocol thereto, read claims that such an interpretation does not in conjunction with Article 7 of the run counter to the aims of the Ankara Agreement, 1 and on the other hand the Agreement, or impede its proper func implications of the term 'freedom of tioning, inasmuch as its implementation is a movement' used in the Agreement in matter for the Council of Association set up relation to the rights of the spouse and under Article 6 thereof.

DEMIREL v STADT SCHWÄBISCH GMÜND

. . bound to make the following comments on the matter. This Agreement is therefore, in so far as concerns the Community, an act of one of I — Jurisdiction to interpret the Agreement the institutions of the Community within the meaning of subparagraph (b) of the first 7. The question of jurisdiction which arises paragraph of Article 177. here is not due to the fact that the provisions at issue form part of an agreement concluded with a non-member The provisions of the Agreement, from the country but stems from the mixed nature of coming into force thereof, form an integral the Agreement, under which not' only the part of Community law. Community but also the Member States have entered into obligations towards the non-member country, with the Community Within the framework of this law, the Court and the Member States acting jointly in the accordingly has jurisdiction to give exercise of their respective powers. preliminary rulings concerning the interpre tation of this Agreement.'

here. However, since the matter is liable to of interpreting or reviewing the validity of a give rise to further developments, it will be Community act', none the less maintained, necessary to verify whether the answer to with regard to international conventions the question in this case may be found in signed by the Community but also binding previous judgments of the Court or whether upon Member States under Article 228 of it calls for a new step in case-law. the Treaty, that it was necessary 'at the same time to take the Convention into

OPINION OF MR DARMON — CASE 12/86

Community'. He went on: ' ... the defi­ It follows from the Community nature of nition of the scope of a State's Community such provisions that their effect in the obligation is always a question of interpreting Community may not be allowed to vary Community law'. 5In delivering its judgment 'according to whether their application is in subsequent to that Opinion the Court, in practice the responsibility of the Community interpreting certain provisions of the institutions or of the Member States and, in Yaounde Convention, first observed: the latter case, according to the ... internal legal order of each Member State ... Therefore it is for the Court, within the 'It was concluded in the name not only of framework of its jurisdiction in interpreting the Member States but also of the the provisions of agreements, to ensure their Community which, in consequence, are uniform application throughout the bound by virtue of Article 228.' Community.' 8

13. Nevertheless, in this instance the 'In ensuring respect for commitments arising settlement of the question of the Court's from an agreement concluded by the jurisdiction does not appear to necessitate Community institutions the Member States the elaboration of a general theory on the fulfil an obligation not only in relation to subject — useful though this would be. The the non-member country concerned but also measures in question are by nature and above all in relation to the Community consensual. Consequently, the contracting which has assumed responsibility for the due parties could graft onto them some strictly performance of the agreement ... '. 7 bilateral clauses on subjects lying outside the ambit of Community law, governing dealings between one or more Member 5 — Emphasis added. 6 — Paragraph 12; emphasis added. 7 — Paragraph 13; emphasis added. 8 — Paragraph 14; emphasis added.

DEMIREL v STADT SCHWÄBISCH GMÜND

have come into being. 10 agreement between the EEC and Turkey, which refers to the Treaty provisions and to the changing distribution of powers between the Community and the Member States, and the case-law of the Court on external powers, indicate that the Community's international competence must be broadly construed in the light of continuing devel opments. None the less, it must be emphasized that this analysis is limited to agreements concluded with a view to accession. Even when based on Article 238,

Without in a Community perspective and that it be recourse being needed to the implicit possible to interpret them with a view to powers which this Court has recognized the their uniform application. Lying at the heart Community as having in its judgment in the of the jurisdiction, of course, are the funda AETR case (Case 22/70, on the European Agreement concerning the work of crews of mental liberties required for the estab vehicles engaged in international road lishment of a common market, including the transport and in Opinion 1/76 9), Article 10 — Official Journal 1973, C 113, p. 16. 9 — Judgment of 31 March 1971 in Case 22/70 Commission v 11 — See C. Flaesch-Mougin's thesis, 'Les accords externes de la Council [1971] ECR 263; Opinion 1/76 of 26 April 1977, CEE: Essai d'une typologie', 1979, at p. 67. ECR741. 12 — Article 28 of the Ankara Agreement.

free movement of workers. In this case, the must say at the outset that I am equally provisions at issue are binding on all convinced of this. Member States without distinction. A further reason for bringing them under the jurisdiction of the Community is the fact that they may affect the free movement within the Community of workers who are 17. Since the judgment in Pabst and 13 nationals of the Member States. Richarz there can be no doubt that an association agreement may have direct effect. Giving a preliminary ruling on a question concerning a provision of the Athens Agreement of 1961, the Court had regard in particular to the purpose and nature of that agreement and held that the 15. Thus, in the absence of any reservation article in question contained 'a clear and of powers in the Agreement, and subject to precise obligation which is not subject, in its the various prerogatives as to its implemen­ implementation or effects, to the adoption tation, both the nature and the scope of its of any subsequent measure'. provisions suggest that, having regard to the principles defined in the case-law, the inter­ pretation of those provisions is within the jurisdiction of this Court, particularly with a view to ensuring their uniform application. 18. More generally, the cases decided by It does not seem to me that doubt is cast on the Court 14 demonstrate that, in order to that view of the matter by Article 25 of the determine whether an external agreement Agreement, which confers powers on the has direct effect, the Court considers the Council of Association only in cases of characteristics of the rule to be applied, as it conflict between States, in accordance with does when applying Community rules stricto a procedure expressly laid down for the sensu. However, whereas under Community resolution of disputes which could not be law it is automatically assumed that the brought before this Court by the contracting parties intended to confer rights non-member country concerned. on individuals by means of the Treaties and the only requirement for direct applicability is that the rules in question be precise and complete, no such intention may be presumed for the application of an interna­ 15 tional agreement. In such cases the Court begins by ascertaining whether the nature II — The questions submitted for a and general scheme of the agreement preliminary ruling preclude direct reliance on one of its stipu­ lations. Then, in order to answer the question 'whether such a stipulation is unconditional and sufficiently precise to 16. Whilst the written procedure revealed have direct effect ... ', the Court considers differences of opinion as to jurisdiction, it that it must first be analysed ' ... in the light reflects what the oral procedure has confirmed, namely a consensus as to the 13 — Judgment of 29 April 1982 in Case 17/81 [1982] ECR 1331. broad outline of the reply to be given to the 14 — See inter alia Cases 87/75 Bresciani and 104/81 Kupferberg, national court. In essence, it is proposed cited above. that the Court should hold that no direct 15 — See H. N. Tagaras, 'L'Effet direct des accords interna­ tionaux de la Communauté', Cahiers de droit européen, effect attaches to the provisions at issue. I 1984, Nos 1 and 2, p. 15, especially p. 24 et seq.

19. In view of the Court's decision in Pabst and Rkharz (cited above), it is necessary to 'The Contracting Parties shall take all consider the combined provisions of the appropriate measures, whether general or articles referred to in the national court's particular, to ensure the fulfilment of the first question, and to enquire whether, in obligations arising from this Agreement. accordance with the conditions referred to above, they contain a directly applicable standstill obligation. If that is so, it will be They shall refrain from any measures liable necessary to ascertain whether, to quote to jeopardize the attainment of the from the national court's second question, objectives of this Agreement.' ' ... the expression "freedom of movement" in the Association Agreement [is] to be understood as giving Turkish workers ... the right to bring children ... and 21. I shall first examine Article 12 and spouses to live with them'. Article 36 P. Article 12 records the desire to achieve, in stages spread over the transi­ tional phase, the free movement of workers 20. It is appropriate to set out the text of in the spirit of Articles 48 to 50 of the EEC the provisions at issue. In Chapter 3 of Title Treaty, the text of which is not recited. II ('Implementation of the transitional That in itself indicates that the rules stage') Article 12 states: governing the free movement of workers will not necessarily be identical to those laid down by those articles. The reference to 'The Contracting Parties agree to be guided Articles 48 to 50 of the EEC Treaty is by Articles 48, 49 and 50 of the Treaty therefore merely in the nature of a establishing the Community for the purpose guideline. Hence Article 12 does not of progressively securing freedom of contain any clear, precise and unconditional movement for workers between them.' obligation. It merely outlines a programme and cannot have direct effect. Article 36 of the Additional Protocol (hereinafter referred to as 'Article 36 P') provides : 22. Article 36 P can only bear out that analysis. Its second paragraph confers on the Council of Association exclusive powers 'Freedom of movement for workers between to decide on the 'rules necessary' to the Member States of the Community and progressive implementation of the principles Turkey shall be secured by progressive set out in Article 12. That body, however, stages in accordance with the principles set 7 which is to 'act unanimously', 1 adopted no out in Article 12 of the Agreement of Asso­ provision to that end apart from the ciation between the end of the twelfth and provisions regarding Turkish workers 'duly the twenty-second year after the entry into registered as belonging to the labour force force of that Agreement.' of a Member State' and 'nationals of the Member States duly registered as belonging 8 'The Council of Association shall decide on to the labour force in Turkey'. 1 It is only the rules necessary to that end.' 17 — Article 23 of the Agreement. 18 — Decision 1/80 of the Council of Association of 19 16 — Case 104/81 Kupferberg,at paragraphs 22 and 23. September 1960, Articles 6.

measures adopted pursuant to the second did constitute a standstill clause, it is paragraph of Article 36 P which would difficult to see how it could produce effects have been capable of giving concrete form regarding freedom of movement, the scope to Article 12. of which at a specific time could not be circumscribed. The national court attached much importance to it because it believed that the main aim of the Agreement was the realization of freedom of movement. However, the provisions on that topic form 23. Since Article 12 in itself cannot create a part of other, economic, provisions serving right having a precise content, it is not to give effect to the aims set out generally in possible even after the expiry date set for Article 2 of the Agreement and, for the the transitional stage — 30 November transitional stage, in Article 4 thereof. 1986 — to contend that, in the absence of Having no specific implications, the the requisite decision by the Council of principle under Article 7 imposes a general Association, any binding effect relating to obligation on the contracting parties which the free movement of workers may be cannot have effect except in conjunction inferred from the Agreement. The passage with further provisions of time — to quote the expression used by the Commission — has no legal implications here. Progressive implementation depends on decisions of the Council of Association. The absence of such decisions in this field, 25. In view of the similarity of Article 7 of reflecting the difficulties experienced by the the Agreement to Article 5 (2) of the EEC contracting parties in reaching a consensus, Treaty, noted by both the Commission and precludes the application of provisions the German Government, it is appropriate without a clearly circumscribed content. to refer to the rules defined by this Court Any other solution would, indeed, be for the application of the latter article. The incompatible with the consensual nature of Court has held that specific effects may be an international convention and the ascribed to Article 5 (2) only where there progressive nature of the implementation of are concrete elements elsewhere serving to the agreement embodied therein. Those define the measures to be considered invi­ findings show that Article 12 and Article olable, even if in some cases these are 36 P do not give rise to any rights but 'fragmentary elements of law' or mere simply set out certain aims and the proposals or interim measures, provided that procedures suitable for giving effect to they represent 'the point of departure for 19 them. Rights cannot arise otherwise than conceited Community action'. In a case from specific measures adopted in such as the present one, no such finding accordance with 'special procedures' within may be made because no rules governing the meaning of Article 238 of the EEC the free movement of workers under the Treaty. Consequently, no direct effect can Ankara Agreement have yet been laid down. issue from the abovementioned provisions of the Agreement regarding freedom of movement.

provide services, dealt with respectively by who are nationals of a Member State of the Article 13 and Article 14 of the Agreement, Community had to be the subject of an lends support to that view. Under the terms express provision, namely Article 10 of of those two articles, the Contracting Council Regulation No 1612/68 of 15 Parties 'agree to be guided by'the corre­ October 1968 on freedom of movement for 20 sponding articles in the Treaty 'for the workers within the Community. In the purpose of abolishing restrictions... absence of any analogous provision either between them' on the freedoms in question. contained in the Ankara Agreement or However, whereas Article 36 P is drafted in adopted for its implementation by the the terms recited above, Article 41 (1) of the Council of Association, such a right cannot same Protocol expressly introduces a be deemed to arise by implication. Even standstill clause whereby: with regard to the requirements of Article 8 of the European Convention on Human Rights, it was pointed out during the 21 proceedings that in the Abdulaziz case the European Court of Human Rights in Strasbourg held that, generally speaking, 'The Contracting Parties shall refrain from States are not thereby required to allow a introducing between themselves any new spouse who is not a national to settle in restrictions on the freedom of establishment their territory. Although family reunification and the freedom to provide services.' is certainly a necessary element in giving effect to the freedom of movement of workers, it does not become a right until the freedom which it presupposes has taken effect and a special provision on the matter has been adopted. In an agreement in which Of course, a contrario reasoning must be every step in that direction is gradual and treated with caution. For the second progressive, it is for the court or tribunal paragraph of Article 7 to be regarded as having jurisdiction to decide at what having the effect of a standstill clause, it moment, and subject to what conditions, would have to be applicable to an obligation that aim must become a reality. having well-defined features, and this — as seen above — is not the case with Article 12 and Article 36 P.

III — Conclusion

29. I therefore propose that the Court should rule as follows:

'As the implementing measures thereto now stand, the combined provisions of Article 12 of the Agreement of 12 September 1963 establishing an association between the European Economic Community and Turkey and Article 36 of the Additional Protocol of 23 November 1970, read in conjunction with Article 7 of the aforesaid Agreement, do not impose on Member States any prohibition directly applicable in their internal legal order on the introduction of new restrictions on the reunification of families of Turkish workers lawfully employed there.'