C-192/89

Mr President, Mr Sevince applied to the Staatssecretaris Members of the Court, van Justitie for a residence permit, indi­ cating as the ground for his application the fact that he was working as an employed person and relying on a provision of Decisions Nos 2/76 and 1/80 of the 1. By judgment of 1 June 1989, the Raad EEC-Turkey Association Council, van State (Netherlands court of last instance according to which a Turkish worker duly in administrative matters) referred to the registered as belonging to the labour force Court for a preliminary ruling three of a Member State is entitled, after a questions on provisions contained in specified period of legal employment, to decisions of the EEC-Turkey Association free access to any employment of his choice. Council, an authority established by the It is important to note that Mr Sevince EEC-Turkey Association Agreement. 1 The considers that the periods of employment questions relate to a dispute between Mr completed under the authorization issued by Sevince, a Turkish national, and the Staats­ the Minister for Social Affairs whilst the secretaris van Justitie (State Secretary of effect of the non-extension of his residence Justice) of the Netherlands. permit was suspended pending final judgment on his appeal should be taken into account in calculating his period of legal employment within the meaning of the abovementioned decisions. 2. Mr Sevince, who on 22 February 1979 obtained a residence permit allowing him to live in the Netherlands by reason of his marriage to a fellow national residing there, was refused an extension of his permit on 11 September 1980 by the Staatssecretaris 3. In appeal proceedings brought by Mr van Justitie. The extension was refused Sevince against the decision of the Staats­ because Mr and Mrs Sevince had separated. secretaris van Justitie rejecting his The application for review lodged by Mr application of 13 April 1987, the Raad van Sevince and his appeal against the implied State decided to refer questions to the decision rejecting his request, brought Court on the scope and meaning of the before the Raad van State, suspended the provisions of Decisions Nos 2/76 and 1/80. effect of the refusal to extend his residence Essentially, the national court asks whether permit. Under Netherlands legislation, that the relevant provisions of those decisions are suspensory effect is automatic in the case of ones which the Court has jurisdiction to appeals. 2Mr Sevince's appeal was dismissed interpret under Article 177 of the EEC by a judgment delivered on 12 June 1986 by Treaty, if so whether they are directly the Raad van State and on 13 April 1987 applicable in the Member States of the EEC, and, if they are, whether the term * Original language: French. 'legal employment' used in them refers only 1 — Agreement establishing an Association between the to compliance with the legislation on the European Economic Community and Turkey, signed at Ankara on 12 September 1963, concluded on behalf of the employment of aliens or whether it also Community by Council Decision of 23 December 1963 relates to the possession of a residence (published in English in OJ 1973 C 113, p 1). 2 — Article38 of the Vreemdelingenwet (Aliens Law). permit.

4. The first question, it seems to me, does not present any real difficulty. As pointed out at the hearing by the Netherlands 'since it is directly connected with the Asso­ Government and the Commission, the ciation Agreement', judgment of the Court of 14 November 1989 in Greece v Commission 3 appears to have dispelled any doubts which might have persisted regarding the jurisdiction of the Decision No 2/80 formed, Court to interpret under Article 177 the EEC Turkey-Association Council decisions at issue. 'from its entry into force, an integral part of the Community legal system'. 6 5. What does that judgment tell us? The Court stated first that, as it has consistently held, most recently in the judgment in Demirel, 4precisely with regard to the EEC 6. I consider that the acts of the Association Turkey-Association Agreement, Council with which this case is concerned, namely Decisions Nos 2/76 and 1/80, fall to be classified in the same way and form part of the Community legal system. The 'the provisions of an agreement concluded relevant provisions of those decisions, which by the Council under Articles 228 and 238 relate to the circumstances of Turkish of the Treaty form, as from the entry into workers duly registered as belonging to the force of the Agreement, an integral part of labour force of a Member State, are linked the Community legal system'. 5 with the objectives laid down in Article 12 of the Association Agreement, according to which the contracting parties agreed to be The Court then stated that, guided by Articles 48, 49 and 50 of the EEC Treaty for the purpose of progressively securing freedom of movement for workers 'for the attainment of the objectives laid between them, and by Article 36 of the down by the EEC-Turkey Association additional protocol, 7 which provides that Agreement and in the circumstances free movement is to be secured by provided for by that Agreement, Article 22 progressive stages between the end of the thereof confers a power of decision on the 12th year and 22nd year after the entry into Association Council'. force of the Association Agreement. The second recital in the preamble to Decision No 2/76 makes clear that the abovemen- Thus, with regard to Association Council tioned provisions of the Agreement and of Decision No 2/80, laying down the the Additional Protocol imply that the conditions for the provision of aid to Member States of the Community and Turkey, the Court considered that the Asso­ Turkey accord each other priority as ciation Council placed that aid within the 6 — Ibid., paragraph 13.

9. The second question seeks to determine 'in ensuring respect for commitments arising whether the provisions at issue of Decisions from an agreement concluded by the Nos 2/76 and 1/80 are directly applicable Community institutions the Member States in the territory of the Member States. This fulfil, within the Community system, an issue was the focus of greatest attention obligation in relation to the Community, both in the written procedure and at the which has assumed responsibility for the due hearing. Whilst Mr Sevince and the performance of the agreement', 9 Commission consider that it should be answered in the affirmative, the Governments of the Netherlands and the Federal Republic of Germany take the opposite view. and drew the conclusion that it did indeed have jurisdiction to interpret the provisions of the EEC-Turkey Association Agreement and of the protocol on the free movement 10. Since the provisions at issue are neither of workers. I therefore consider that the in a Community Treaty nor in a 'traditional' matter to which the relevant provisions of measure of a Community institution but appear in decisions adopted by an authority 8 — Case 104/81 [1982] ECR 3641. 9 — Case 12/86, supra, paragraph 11 10 — Case 181/73 [1974] ECR 449.

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Applying those principles, the Court considered, in that same decision, whether 13. For the purpose of attaining the certain provisions of the EEC-Turkey Asso­ objectives set by the Agreement and in the ciation Agreement were directly applicable. circumstances envisaged in it, Article 22 of Those principles seem to me likewise to be the Association Agreement confers on the relevant to a decision as to the direct appli­ Association Council a 'power to take cability or otherwise of provisions contained decisions', also indicating that each of the in decisions of the Association Council set parties is to 'take the measures necessary to up by the EEC-Turkey Agreement. The implement the decisions taken'. The decisions of that Council, as we have seen, provisions of the Association Council form part, like the Association Agreement, decisions whose direct applicability is at of the Community legal order and therefore issue relate, as I have pointed out, to the there is no apparent reason for taking the free movement of workers. On that subject, view, a priori, that they cannot contain Article 12 of the Ankara Agreement states directly applicable provisions, and in any that 'the Contracting Parties agree to be event the Agreement itself ruled out any guided by Articles 48, 49 and 50 of the such impossibility. On the contrary, I Treaty establishing the Community for the consider that the fact that a provision purpose of progressively securing freedom belongs to the Community legal order rules of movement for workers between them'. out any automatic impossibility of its For its part, Article 36 of the Additional Protocol provides that 'freedom of 11— Case 12/86, supra, paragraph 14. movement for workers between Member

14. Article 1 of Decision No 2/76 'estab­ 17. Article 7 of Decision No 2/76 provides lishes for a first stage the detailed rules for that 'the Member States of the Community the implementation of Article 36 of the and Turkey may not introduce new Additional Protocol', that first stage lasting restrictions on the conditions of access to four years, as from 1 December 1976. employment applicable to workers legally According to Article 1 thereof, Decision No resident and employed in their territory'. By 1/80 is intended to provide for 'the revital- contrast, Article 13 of Decision No 1/80 ization and development of the Association'. inserts, after the word 'workers', the words For that purpose, it includes provisions on 'and members of their families'. agricultural and economic and technical cooperation, which enter into force on 1 July 1980, together with social provisions, which apply as from 1 December 1980. 18. If, to start with, we rely solely on the letter of the provisions, it would be difficult not to recognize that the provisions just 15. The national court's questions relate cited are, prima facie, clear. Article 2(b) of specifically to Article 2(b) of Decision No Decision No 2/76 and Article 6(1), third 2/76 and / or Article 6(1) of Decision No indent, of Decision No 1/80 seemed to me 1/80, on the one hand, and, on the other, unambiguously to lay down the requirement to Article 7 of Decision No 2/76 and/or that free access to any employment of his Article 13 of Decision No 1/80. In order to choice must be granted to a Turkish worker determine the effects of those provisions, it who has been legally employed for a clearly is essential to cite their precise terms. specified period in a Member State. Articles 7 of Decision No 2/76 and 13 of Decision No 1/80 appear unequivocally to impose a standstill clause on the Member States and 16. Article 2(b) of Decision No 2/76 Turkey regarding the conditions of access provides that 'after five years of legal to the employment of workers legally employment in a Member State of the resident and employed in their territories. Community, a Turkish worker shall enjoy free access in that country to any paid employment of his choice'. For its part, Article 6(1), third indent, of Decision No 1/80, which is included amongst the social provisions of that decision, provides that a 19. But appearances can be deceiving and it Turkish worker who is duly registered as is necessary to verify whether the purpose belonging to the labour force of a Member and nature of the Association Agreement or

'in structure and content, the Agreement is 22. That impression is not changed by a characterized by the fact that, in general, it comparison between, on the one hand, the sets out the aims of the Association and lays EEC-Greece Association Agreement and, down guidelines for the attainment of those on the other, the EEC-Turkey Association aims without itself establishing the detailed Agreement and the Additional Protocol 12 rules for doing so'. thereto. In fact, such a comparison discloses fairly broad similarities. It is to be noted that the preambles to the two Agreements are almost entirely identical, and in particular it should be noted that the fourth Then, after observing that paragraph in the preamble to the EEC-Turkey Association Agreement, 'recognizing that the support given by the European Economic Community to the efforts of the Turkish people to improve 'only in respect of certain specific matters their standard of living will facilitate the are detailed rules laid down by the protocols accession of Turkey to the Community at a annexed to the Agreement', 13 later date', is drafted in exactly the same terms as the fourth paragraph in the 12 — Case 12/86, supra, paragraph 16. 13 — Ibid. 14 — Case 12/86, supra, paragraph 23.

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16 progressively established', and the 23. Thus, in view of the similarities of basic Contracting Parties are to 'align the approach in the preambles to the economic policies of Turkey' and the Agreements, it would be difficult to find in Community more closely in order to ensure one reasons for excluding direct applica the proper functioning of the Association bility which are absent from the other. It and the progress of the joint measures 17 will be remembered that, in its judgment in which this requires' whereas in the

9 to that Agreement, in terms almost identical in the fields mentioned in this Agreement'. 1 to those of the preamble to the EEC-Turkey In fact, the significant differences between Agreement, had excluded direct applica the two agreements, as regards matters of bility. Accordingly, there is no reason, a principle, appear to reside above all in the priori, to conclude that the basic approach speed at which the objectives pursued are to underlying the latter agreement, for its part, be attained. In that regard, the EEC-Turkey excluded such direct applicability. Association Agreement provides for a preparatory phase prior to a transitional phase, whereas the EEC-Greece Association Agreement provides for no preparatory

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OPINION OF MR DARMON — CASE C-192/89

phase, by an additional protocol which Greece, a function identical to that of the clarified most of those points. latter article. The Court added that

'it forms part of a group of provisions the purpose of which was to prepare for the 25. Thus, as far as the general objectives of entry of Greece into the Community by the the two Agreements are concerned, as set establishment of a customs union, by the out in each of them in Title I, the heading harmonization of agricultural polices, by the of which is 'Principles', the similarities again introduction of freedom of movement for seem to predominate, particularly in the workers and by other measures for the context of the transitional phase of the gradual adjustment to the requirements of 22 EEC-Turkey Agreement, which is what is at Community law'. issue in the present case. Apart from the question of 'rates' of progress, it is apparent that, in the definition of general objectives, Then, stating that accordingly it followed the only noteworthy difference lies in the fact that the EEC-Turkey Agreement places greater emphasis on the need for 'coordi­ nation of the economic policies of the 'from the wording of Article 53(1) ... and 20 Contracting Parties' whereas, as pointed from the objective and nature of the Asso­ out earlier, the EEC-Greece Agreement lays ciation Agreement of which it forms part' 21 greater stress on 'harmonization' of policies. I do not think that such a difference in the enumeration of principles is sufficient, in principle, to deprive of any that that provision precluded a national direct applicability the provisions by means system of relief from providing more of which the general objectives of the favourable tax treatment for domestic spirits EEC-Turkey Agreement are to be attained. than for those imponed from Greece and that it contained

provisions of the Agreement do not pursue Association Agreement, which to some the objective of preparing for the possible extent reflect a concern for the 'gradual entry of Turkey into the Community. It adjustment' just referred to. should also be noted that those provisions are, as far as the conditions for establishing a customs union are concerned, broadly similar to those of the EEC-Greece 28. Undeniably, the EEC-Turkey Asso Agreement. On the other hand, the ciation Agreement, although containing, provisions of the EEC-Turkey Agreement with its Additional Protocol, a set of concerning agriculture do not relate to provisions which reflect the aim of gradual harmonization of agricultural policies, as in adjustment by Turkey to the requirements the EEC-Greece Agreement, but to the of Community law, goes less far in that adoption by Turkey of common agricultural direction than the EEC-Greece Agreement. policy measures 'which must be applied in It does not thereby follow that the Turkey if free movement of agricultural provisions in the first Agreement referring products between it and the Community is to the attainment of that objective cannot, 25 in principle, be directly applicable.

27 secured between the Member States and Yaounde Convention of 1963 and of a Greece at a date and in accordance with provision of the Free Trade Agreement 28 rules to be determined by the Council of concluded in 1972 with Portugal, even 26 though, in those two cases, which, Association'. Article 12 of the EEC-Turkey Association Agreement, for its moreover, related to circumstances very part, merely provides that the Contracting different from each other, the degree of Parties agree to be guided by Articles 48, 49 adjustment to the requirements of and 50 of the Treaty establishing the Community law was clearly less Community for the purpose of progressively far-reaching than in the case of the securing freedom of movement for workers EEC-Turkey Association Agreement and

27 — Judgment of 5 February 1976 in Case 87/75 Bresciani 25 — Article 33(1) of the Additional Protocol. [1976] ECR 129. 28 — Case 104/81, supra. 26 — Emphasis added.

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requirements of Community law than in the Decision No 1/80 of 19 September 1980 case of the EEC-Greece Agreement, that which, with regard to Turkish workers who the principle of direct applicability does not are already duly integrated in the labour extend to its provisions. Consequently, it force of a Member State, prohibits any likewise does not seem to me that the direct further restrictions on the conditions applicability of the decisions of the Asso­ governing access to employment', ciation Council provided for by the Agreement can be excluded.

29 — Case 12/86, supra, paragraph 21. 30 — Paragraph 22.

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direct applicability of the decisions which came within the competence of the expound on those articles. Community or within that of the Member States, was necessary in any case in order to give effect to decisions of the Association Council in the Member States and there is 32. Having reached this stage of the thus no question of the direct application of discussion, I consider that it is impossible to decisions of that type. detect in the external context of Decisions Nos 2/76 and 1/80 strictu sensu any obstacle which as a matter of principle prevents clear, precise and unconditional provisions 35. Those statements regarding the need, as of those decisions which implement Article a matter of principle, for transposition of 12 of the Agreement and 36 of the the decisions of the Association Council Additional Protocol from being directly appear to be contradicted by the judgment applicable. of the Court in Greece v Commission, supra. The Court, after analysing the provisions of Decision No 2/80 of the EEC-Turkey 33. It is now appropriate, therefore, to Association Council, expressed the view that focus on the scheme of the provisions in they question within the context of the abovementioned decisions of the Association Council. It is in that connection in 'enabled them to be implemented without particular that the Governments of the Netherlands and of the Federal Republic of the prior adoption of supplementary Germany regard those provisions as neither measures', precise nor unconditional.

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OPINION OF MR DARMON — CASE C-192/89

That depends, as the Court indicated, on the scheme of the provisions in question. The implementing measures affect the application of the provisions in question 38. That does not mean that certain only if they are necessary and not because procedures do not have to be laid down to they are in all cases, a priori, necessary. deal with certain details or to specify the conditions for implementation in cases which display certain particular features. But the fact that a provision does not contain as many specific rules as there are types of situations to be governed by it does not mean that it should be regarded as imprecise or conditional and, as such, not capable of

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the Court would disappear. Moreover, is it 'whilst Article 5 leaves the Member States a necessary to point out that the undeniable discretion with regard to methods, it pres­ competence of the Member States to cribes the result which those methods must 34 determine the means of attaining the result achieve'. pursued by a directive has not prevented the Court, in many cases, from recognizing the direct applicability of the provisions of a directive in the absence of national measures The Court thus concluded that Article 4(1) of transposition which are, nevertheless, of the directive in question necessary to provide the details of the implementing procedures?

'does not confer on Member States the power to make conditional or to limit the 39. A parallel may, in that respect, be application of the principle of equal drawn with the reasoning followed by the treatment within its field of application' Court in its judgment of 4 December 1986 in FNV. 32 Called on to give a decision on the direct applicability of Article 4(1) of Council Directive 79 / 7 / EEC of and that that provision 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of 33 social security, the Court stated that it is 'is sufficiently precise and unconditional to not possible, from the terms of Article 5 of allow individuals ... to rely upon it before that directive, which requires the Member 35 the national courts'. States

41. The Government of the Netherlands 'apart from specific situations which may also referred, in arguing against recognition involve their application, the existence of of direct applicability, to the presence in such clauses which, moreover, do not affect Article 6 of Decision No 2/76 and Article the provisions prohibiting tax discrimi­ 12 of Decision No 1/80 of a safeguard nation, is not sufficient in itself to affect the clause. According to the first provision, direct applicability which may attach to 36 'where a Member State of the Community certain stipulations of the agreement'. or Turkey experiences or is threatened with disturbances on its employment market which might seriously jeopardize the standard of living or level of employment in a particular region, branch of activity or occupation, the State concerned may refrain Admittedly, the safeguard clauses contained from automatically applying Article 2(1)(a) in the EEC-Turkey decisions differ from and (b)'. The second is identical, apart from those in the free-trade agreement at issue in a change in the numbering of the provisions Kupferberg in so far as the latter applied 'as which it is possible not to apply auto­ a general rule' only after consideration matically. The Netherlands Government within the joint committee in the presence considers that the unilateral power thus of both parties, whereas no such reserved to the States which are parties to consideration is necessary before the former the Agreement, without prior authorization are applied. It will be noted, however, that or consultation and with notice merely it does not follow from the terms of the being given to the Association Council, Kupferberg judgment that that fact is alone must prompt the inference that the rule sufficient to exclude the direct applicability granting access to any employment, which is of the provisions in question. The Court's among those which it is possible not to decision states that 'as a general rule' there apply automatically in the circumstances was prior consideration in the presence of referred to earlier, cannot be directly both parties within the joint committee, but applicable. not in all cases. Above all, it seems to me that the judgment places emphasis on the specificity of the situations which may involve the application of the safeguard clauses. That specificity is also apparent in the relevant provisions of Decisions Nos 42. In its judgment in Kupferberg, the Court 2/76 and 1/80. They refer to the threat of noted, with respect to safeguard clauses 'disturbances on its employment market contained in the free trade agreement which might seriously jeopardize the between the EEC and Portugal, that standard of living or level of employment in a particular region, branch of activity or occupation', and it is also indicated therein that only those circumstances make it possible to 'refrain from automatically applying' certain provisions of the decisions. 'they apply only in specific circumstances This emphasizes, in my view, the fact that and as a general rule after consideration the safeguard clauses must be allowed to within the joint committee' cover only exceptional situations and that, for such situations, the rule is automatic application by the Member States of the provisions in question.

43. In passing, it should be observed that Then, after examining more specifically such automatic application, referred to a certain provisions of the Agreement, the contrario in those safeguard clauses, appears Court concluded that the provision at issue, to detract from the view that the power of when examined in such a context, was the Member States to adopt measures to implement decisions of the Association Council or, as appropriate, to adopt detailed arrangements for applying certain of their provisions implies that they are empowered 'not capable of conferring on citizens of the to expound the content of the provisions at Community rights which they can invoke 40 issue in this case, in particular by adding before the courts'. conditions, and that would prevent their direct application. The adjective 'automatic' suggests rather, in my view, that the implementing conditions are no longer open to discussion. The Court has reaffirmed that position on several occasions, relying on the general context of GATT, with respect to other provisions of the Agreement, in particular in the Court's two judgments of 16 March 41 1983. 44. An analysis of the safeguard clauses contained in the Association Council decisions calls for reference to the position adopted by the Court in its judgment in 7 International Fruit Company* as to whether 45. It should be noted in the first place that the provisions of the General Agreement on the EEC-Turkey Association Agreement Tariffs and Trade (GATT) confer on indi­ does not appear to display the same general viduals in the Community the right to rely flexibility as that expressly referred to in the on them in legal proceedings. Having case of GATT. Without reverting to the regard, in replying to that question, to 'the overall context of the Association spirit, the general scheme and the terms' of Agreement, it is nevertheless important to 38 GATT, the Court stated that the latter note, parenthetically, that that context is clearly much more restrictive. It is apparent from a reading of paragraphs 22 to 26 of the judgment in International Fruit Company, focusing in particular on Article XXII (1) of GATT, according to which 'which, according to its preamble, is based 'each Contracting Party shall accord sympa­ on the principle of negotiations undertaken thetic consideration to, and shall afford on the basis of single "reciprocal and adequate opportunity for consultation mutually advantageous arrangements" is regarding, such representations', Article characterized by the great flexibility of its XXV (1) of the same document, which provisions, in particular those conferring the provides that the Contracting Parties 'may possibility of derogation, the measures to be consult with one or more Contracting taken when confronted with exceptional Parties on any question to which a satis­ difficulties and the settlement of conflicts 39 factory conclusion cannot be found through between the Contracting Parties'. 40 — Paragraph 27. 37 — Joined Cases 21/72 to 24/72 [1972) ECR 1219. 41 — Case 266/81 SIOT v Minutero delle finanze [1983] ECR 38 — Paragraph 20- 731, and Joined Cases 267 to 269/81 Amminntrazione delte 39 — Paragraph 21 finanze dello Stato v SPI and SAMI [1983] ECR 801

47. In view of these various considerations, I consider that the safeguard clauses in 46. But, with regard more particularly to Decisions Nos 2/76 and 1/80, the use of safeguard clauses, it must be emphasized which, being reserved for specific above all that those contained in the Asso­ emergency situations, is not purely discre­ ciation Council decisions do not display the tionary, do not appear to be so conceived same degree of flexibility as those of GATT that the direct applicability of certain and that it would not therefore be at all provisions of those decisions could be justified to draw an analogy with the latter affected. and conclude that the provisions of those decisions were not directly applicable. In International Fruit Company the Court stated that 48. Finally, a last objection must be discussed, namely that the decisions of the EEC-Turkey Association Council are not 'where, by reason of an obligation assumed published. It is true that those decisions are under the General Agreement or of a not subject to publication rules and are not concession relating to a benefit, some published in the Official Journal. producers suffer or are threatened with Admittedly, the question might be asked serious damage, Article XIX gives a whether the fact that those decisions form Contracting Party power unilaterally to part of the Community legal order would suspend the obligation or to withdraw or justify arrangements being made for their modify the concession, either after publication. However, I would observe with consulting the Contracting Parties jointly regard to the question at issue here that, to and failing agreement between the my knowledge, the Court has never Contracting Parties concerned, or even, if formally declared the direct applicability of

50. I therefore propose that the national court's second question be answered in the affirmative. 49. Having regard to the various consider­ ations relating to the second question submitted by the Raad van State, I am persuaded that, in view of the apparently III — The third question clear and precise terms of the provisions at issue of Decisions Nos 2/76 and 1/80, no consideration relating to the fundamental objects of the Association Agreement, its 51. We now come to the third question. It overall structure or the very scheme of those seeks to establish whether the expression provisions within the decisions in question 'legal employment' contained in Article has emerged as being capable of causing 2(1)(b) of Decision No 2/76 and in Article them ultimately to be regarded as insuffi­ 6(1), third indent, of Decision No 1/80 in ciently precise or conditional. I therefore see fact covers employment of a Turkish no reason to justify not recognizing the national who is in possession of a residence direct applicability of the provisions referred permit issued under the legislation relating to in the national court's question. It should to aliens or is simply legally authorized to also be observed that, by stating that work solely by virtue of the requirements Decision No 1/80 had, by virtue of the concerning the employment of aliens. The provisions in the present case, prohibited scope of the question is clearly illustrated by 'any further restrictions governing access to the circumstances which gave rise to the employment', the Court's judgment in main proceedings. Mr Sevince was officially Demirel did not appear to express any authorized to work — and apparently did doubts regarding the precise meaning of that provision. The direct applicability of 44 — Case 12/86, supra, paragraph 21

work — for a period in which, having no of the authors of Decisions Nos 2/76 and residence permit properly so called, he 1/80 to grant rights to people complying nevertheless benefited from the suspension with the legal requirements concerning of the effects of the administrative decision employment, without their position under whereby extension of his residence permit the legislation on residence having any was refused until a final decision had been effect whatsoever. given in the Court proceedings instituted by him. Thus, Mr Sevince worked lawfully in accordance with the legislation on the employment of aliens, under which he had

46 activity as an employed person'. It added, with respect to Article 13 of the same decision, that the term 'legally resident' within the meaning of that provision should 52. In support of the view that the legality be taken to refer to the fact of satisfying the of the employment in question relates only conditions for the issue of a residence to compliance with the requirements of the permit, in particular in order to exercise an legislation on the employment of aliens, activity as an employed person, and that the regardless of the legality or otherwise of rule did not therefore cover residence auth residence, the plaintiff in the main orized under court proceedings whose very proceedings and the Commission attach purpose was to establish whether the person particular importance to a comparison of concerned satisfied the conditions for the the wording of several provisions of the issue of a residence permit. decisions of the Association Council at

State'. They therefore consider that the ciation Agreement, to which Article 36 of mention in other provisions, including those the Additional Protocol refers, provided to which the preliminary question relates, that the Contracting Parties agreed to be only of legal employment without any guided by Articles 48, 49 and 50 of the EEC reference to residence reflects the intention Treaty with a view to progressively securing

57. It seems to me, however, that there should be some hesitation about following 55. It must be clearly appreciated that the such reasoning, in view of certain conse­ rules laid down by the Association Council quences which would follow from it. A appear to draw their inspiration from a purely 'independent' concept of legal source too remote from the EEC rules for employment appears to me to produce reasoning by analogy to be admissible here. somewhat absurd results, or even a They are intended, in fact, not to govern distortion of the applicable law. Let us the conditions for freedom of movement for examine the course of the procedure in a workers between Turkey and the Member case like that of Mr Sevince. The extension States, in particular for the benefit of of a Turkish worker's residence permit is Turkish nationals, but simply to consolidate refused. He appeals against that decision. the position of Turkish workers who are Pending judgment, the effect of the already duly integrated into the labour force expulsion order deriving from the of one of the Member States. The objectives non-extension is suspended. During the here are thus much more modest, at the period of suspension, the person concerned stage of operation of the Association is given the opportunity to work under Agreement under consideration, than in the conditions envisaged by the law on the context of the EEC Treaty, and the EEC employment of aliens, and therefore in Treaty cannot therefore be regarded as a conformity with that law. The suspension is suitable basis at this stage for interpretation brought to an end by the final judgment. If of the decisions of the Association Council. the refusal to extend is annulled no particular comment is called for, since that would entail recognition of the contested right of residence and would bring the 56. Must an examination of the provisions dispute to an end. But confirmation of that at issue of the Association Council decisions refusal by the court, as occurred in the lead to acceptance of the analysis, which present case, could prove fruitless if the relies particularly on a contrario reasoning, work done during the period of suspension made by Mr Sevince and the Commission? made it possible to complete the prescribed Is compliance with the laws concerning period of 'legal employment' within the residence required only where express meaning of the provisions in question, inter­ reference is made to legal residence, which preted 'independently'. Such a situation is not the case in the said provisions, or is would make it possible to frustrate the

judicial confirmation of the refusal to the burden of proof' is not conceivable here, extend the residence, since the person since the reason for suspending the effects concerned, by acquiring the right provided of a decision withholding a residence permit for by the Association Council decisions to until a final judgment has been given on the undertake any activity of his choice as an validity thereof is to 'freeze' the situation employed person, could thereafter not be until judgment. Such 'freezing' must operate denied entitlement to residence. in both directions. The position of the Turkish national is protected in so far as it is decided not to prejudge the issue before the court by immediately enforcing the expulsion order, but that cannot simulta

60. An interpretation taking account of this order whose purpose is protective, being concept of 'freezing' also seems to me to be designed to ensure that the situation of the perfectly in conformity with the principle of person concerned is not excessively impaired the protection of legitimate expectations, before it has been defined judicially, would since, by virtue of the fact that a refusal of a then give rise to rights and could be relied residence permit is, by definition, protective, on as against the national administration. it must be concluded that the person On the one hand, the suspension measure concerned is unequivocally prevented from temporarily neutralizes the expulsion order, acquiring, during the period of suspension, in order to preserve the situation of the any right of residence deriving from the person concerned, and yet, on the other

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It must however be observed that the precise purpose of the 63. In case the Court adopts that solution, convention may perhaps justify the solution it is necessary to dwell for a moment on the adopted, without amounting to the specific arguments advanced by Mr Sevince who, application of a general principle. The other referring to a number of international international instruments referred to by the instruments, expresses the view that, whilst plaintiff in the main proceedings confirm legal employment presupposes a legal that view. Thus , Article 12(1) of the Inter situation as regards residence, a legal national Covenant on Civil and Political situation cannot, however, be taken to refer Rights, adopted on 19 December 1966, solely to residence by virtue of a residence provides that: 'Everybody lawfully within

64. According to Article 11 of the of national security otherwise require, be European Convention on Social and allowed to submit the reasons against his Medical Assistance of 11 December 1953: expulsion'. I do not see in that wording any embodiment of the idea that a distinction is to be drawn between legal residence and residence authorized by a permit. '(a) Residence by an alien in the territory of any of the Contracting Parties shall be considered lawful within the meaning of the Convention so long as there is in force in his case a permit or such other 65. Article 19 of the European Social permission as is required by the laws Charter, also referred to by Mr Sevince, and regulations of the country likewise does not uphold that distinction.

According to Article 19(4) (5) and (6), the "lawfully within the territory of a State". Contracting Parties give an undertaking to This condition refers to the domestic law of 'workers lawfully within their territories' the State concerned. It is for the domestic and Article 19(8) requires them to 'secure law and organs to lay down the conditions that such workers lawfully residing within which must be fulfilled for a person's their territories' are not expelled except in presence in the territory to be considered certain circumstances.

pending proceedings to determine whether or not they are entitled to a residence permit under the relevant provisions of domestic law, can only be regarded as 66. Finally, Article 2(1) of Additional "lawfully" in the territory as long as they Protocol No 4 to the Convention on the comply with the conditions to which their Protection of Human Rights and Funda admission and stay are subjected.' mental Freedoms, which provides that: 'Everyone lawfully within the territory of a State shall, within that territory, have the

In Application 11825/85, in the Commission, in that decision to which which two Sri Lankan nationals complained the plaintiff in the main proceedings of an infringement of Article 2 of the expressly refers, formally stated that it is a abovementioned Protocol No 4 by the auth matter for national legislation and the orities of the Federal Republic of Germany national authorities to lay down the which, pending a definitive decision on their conditions to be fulfilled for the presence of application for asylum, granted them a a person to be regarded as lawful under the temporary residence permit limited to the provision in question.

67. Consequently, I consider that the inter­ national instruments to which Mr Sevince 'Article 2 paragraph 1 of Protocol No 4 refers do not support the view that legal secures the freedom of movement to persons residence may be distinct from residence by

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SEVINCE

70. In view of the foregoing, I propose that the Court rule as follows:

' ( I ) A question on the interpretation of Decision No 2 / 76 or Decision No 1/80 of the EEC-Turkey Association Council , raised before a Court of one of the Member States, falls within the jurisdiction for preliminary rulings conferred

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OPINION OF MR DARMON —CASE C-192/89

on the Court of Justice of the European Communities by Article 177 of the EEC Treaty.

(2) Article 2(1)(b) of Decision No 2/76 and Article 6(1), third indent, of Decision No 1/80, and Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80, are directly applicable and capable of conferring on indi­ viduals rights which the courts are obliged to safeguard.