C-262/96

1 — OJ 1983 C 110, p. 60. The Association Council was set up by Article 6 of the Agreement establishing an association 1. By order of 24 July 1996 the Sozialgericht between the European Economic Community and Turkey (hereinafter 'the EEC-Turkey Agreement') which was signed Aachen (hereinafter 'the Sozialgerichť) sought at Ankara on 12 September 1963 by the Republic of Turkey of the one part and the Member States of the EEC and the from the Court of Justice under Article 177 Community of the other part, and was concluded, approved of the E C Treaty (hereinafter 'the Treaty') and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113, interpretative guidance to enable it to give p. 1). Under Article 22(1) of the EEC-Turkey Agreement, 'in order to attain the objectives of this Agreement the Council judgment in the proceedings between Sema of Association shall have the power to take decisions in the Sürül and the Bundesanstalt für Arbeit Nürn­ cases provided for therein. Each of the parties shall take the measures necessary to implement the decisions taken.' berg (hereinafter 'the BfA') pending before it. In order to lay down the conditions, procedures and dura­ tion of the transitional phase provided for by the EEC-Turkey To that end, an interpretation is required of Agreement (see point 43 below), on 23 November 1970 the Decision N o 3/80 of the Association Council Contracting Parties signed an Additional Protocol (hereinaf­ ter 'the Additional Protocol'). The Additional Protocol, of 19 September 1980 on the application of annexed to the EEC-Turkey Agreement, was approved on behalf of the Community by Council Regulation (EEC) N o the social security schemes of the Member 2760/72 of 19 December 1972 (OJ 1973 C 113, p. 1); pursuant to Article 63(2), it entered into force on 1 January 1973. Deci­ States of the European Communities to sion N o 3/80 was adopted on the basis of Article 39 of the Additional Protocol, according to which 'before the end of the first year after the entry into force of this Protocol the Council of Association shall adopt social security measures for workers of Turkish nationality moving within the Com­ * Original language: Italian. munity and for their families residing in the Community'.

Or, to phrase that question in more gen- eral terms: 2. Decision N o 3/80 is designed to coordi- nate the social security schemes of the Member States in order to allow Turkish workers who are employed in the Community, or have been in the past, and members of the families and Is a Member State prohibited from their survivors to receive benefits in the tra- refusing a Turkish national who comes ditional areas of social security. within the personal scope of Article 2 of Decision N o 3/80 family benefits pro- vided for under its law on the ground that that person does not possess an Aufenthaltsberechtigung or an Aufenthaltserlaubnis ? To that end, Decision N o 3/80 refers essen- tially to specific provisions of Regulation (EEC) N o 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons 2. Is a Turkish national residing in the ter- and to members of their families moving ritory of a Member State a worker within within the Community (hereinafter 'Regula- the meaning of Article 2 in conjunction tion N o 1408/71'), 2 and to a number of with Article 1(b) of Decision N o 3/80 during periods when, pursuant to the law of that State, compulsory contributions 2 — OJ, English Special Edition 1971 (II), p. 416 (as subsequently to the social security pension scheme are amended).

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provisions of Council Regulation (EEC) N o or for the whole working population, if 574/72 of 21 March 1972 laying down the such a person: procedure for implementing Regulation (EEC) N o 1408/71 (hereinafter 'Regulation N o 574/72'). 3

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— to the members of families of these (e) benefits in respect of accidents at work workers, resident in the territory of one and occupational diseases; of the Member States,

(f) death grants;

— to the survivors of these workers'.

(g) unemployment benefits;

shall, each to the extent to which they are permit (Aufenthaltserlaubnis) and the acces- concerned, take the necessary steps to imple- sory residence authorisation (Aufenthaltsbe- ment this Decision.' However, the proposal willigung). 7 for an (EEC) Council Regulation laying down the procedure for implementation in the Euro- pean Economic Community of Decision N o 3/80, submitted by the Commission on 8 February 1983 (hereinafter 'the proposed implementing regulation'), 6 has not been adopted. 8. The Aufenthaltsberechtigung is the docu- ment which allows the alien the most stable form of residence in Germany. Besides con- ferring an autonomous and unlimited right, it provides the holder with the same protection against any expulsion measure as is available constitutionally to persons granted a right of asylum.

7. To complete the outline of the legislative context of the main proceedings, reference will be made to the relevant provisions of German law regarding the residence of aliens and family benefits. 9. The Aufenthaltserlaubnis too is granted without any explicit determination of its pur- pose by the administration and it is for an indeterminate period or else is extendible. That document may therefore allow an alien to reside on German territory for periods of unspecified duration.

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required to contribute to compulsory sick­ requirements (see point 11 above). 0Then, ness and invalidity insurance. Because his pay on 14 March 1994, the BfA also withdrew the is below the minimum subsistence level (as additional payment for dependent children, defined by the Law on income tax), Mr Suriil stating that it was unavailable in the absence — the Sozialgericht observes — receives some of entitlement to the allowance. of the income necessary to meet the cost of maintaining his family from his family of origin.

O n 14 June 1994 the BfA rejected as unfounded the objection lodged by Mrs Suriil to the two abovementioned deci­ sions. Mrs Suriil then brought proceedings Mrs Suriiľs Aufenthaltsbewilligung is for annulment of the decision of 14 June 1994 endorsed with the following restriction: 'The before the national court. taking up of work and/or the carrying-on of a trade is not permitted. Residence to be linked with husband's residence'.

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Paragraph 42, which appears to transpose into Article 4(1 )(h) of the measure cited above (see national law, in the area at issue here, the point 4). Mrs Siiriil seems to think that the principle of non-discrimination laid down in decision in question is applicable to her cir- Article 6 of the Treaty, protects only citizens cumstances ratione personae as well, and so of the other Member States, refugees and firmly holds that view that she has not sub- stateless persons. Mrs Surul does not fall into mitted observations on that point. any of those categories.

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The fact that in Taflan-Met 11 the Court held The right to the same treatment as workers of that Articles 12 and 13 of Decision N o 3/80 the nationality of the host Member State, did not have direct effect is irrelevant. The which is vested in Turkish workers employed Court — Mrs Sürül goes on to say — in fact in the Community and members of their recognised at that time that at least some of families in relation to social security, there- the provisions of that decision are clear and fore derives directly from the abovemen- precise. tioned Article 9, regardless of the direct effect of Article 3(1) of Decision N o 3/80.

The plaintiff claims, in similar terms, that she 11 — Case C-277/94 Taflan-Met and Others [1996] ECR I-4085. 12 — Case 17/81 Pabst and Richarz v Hauptzollamt Oldenburg is entitled not to be discriminated against on [1982] ECR 1331, paragraphs 25 to 27, in which the Court grounds of her nationality with regard to inferred from the wording of Article 53(1) of the EEC- Greece Association Agreement, whose wording is similar to enjoyment of the allowance and additional that of Article 95 of the Treaty, and from the objective and nature of the agreement in question, that, under the associa- benefit for her dependent children for which tion between the Community and Greece, Article 53(1), ful- filled 'the same function as that of Article 95. It forms part the BKGG provides. That right — like that of a group of provisions the purpose of which was to pre- pare for the entry of Greece into the Community by the establishment of a customs union, by the harmonisation of agricultural policies, by the introduction of freedom of movement for workers and by other measures for the gradual 13 — Judgment of 16 September 1996, Gaygusuz v Austria (Euro- adjustment to the requirements of Community law'. pean Human Rights Reports, 1997, p. 364).

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20. As regards the answers to the two 21. The BfA, the defendant in the main pro- remaining questions on which a preliminary ceedings, has not submitted observations to ruling is sought, the Commission, at the the Court; but the German Government has. request of the Court, presented at the hearing Whilst recognising that the judgment in its observations on the possible impact of the Taflan-Met, cited above, does not expressly judgments in Stöber and Piosa Pereira 14 and concern the direct effect of Article 3(1) of Merino Garcia,15 both of which were deliv- Decision N o 3/80, the German Government ered after written observations were lodged observes that, in paragraphs 33 and 37 of that in these proceedings. judgment, 17 the Court stated, in general terms, that by its nature Decision N o 3/80 is intended to be supplemented and implemented in the Community by a subsequent act of the

According to the Commission, in those judg- 16 — According to the Commission, that prohibition applies to the present dispute, in that the working conditions of Turkish ments the Court established the principle that workers employed in the Community fall within the scope the status of worker is required in the of the agreement, by virtue of Article 37 of the additional protocol. The term 'working conditions' which, according to the case-law of this Court, is to be interpreted extensively and includes situations governed by social security provi- sions, also covers the right to benefits such as dependent child allowances. 14 — See Joined Cases C-4/95 and 5/95 [1997] ECR I-511. 17 — See footnote 30 below and the corresponding part of the 15 — See Case C-266/95 [1997] ECR 1-3279. main text.

24. The Netherlands Government has also given its views on the inferences which the plaintiff seeks to draw, for the purposes of the 23. The French and United Kingdom Gov- preliminary ruling sought in these proceed- ernments also observe that — in contrast to ings, from the abovementioned judgment of the cooperation agreements concluded by the the European Court of Human Rights in EEC with Morocco and Algeria (see below, Gaygusuz (see point 18 above). Contrary to point 43) — the EEC-Turkey Agreement and Mrs Sürül's assertion, Article 14 of the Con- the additional protocol thereto do not con- vention is applicable, in conjunction with tain in relation to social security any general Article 1(1) of the First Protocol to the Con- principle of equal treatment applicable to vention, to the enjoyment of rights in respect Turkish workers and members of their fami- of social security benefits only if the latter lies, the Contracting Parties having agreed form part of a contributory scheme. In the solely to be guided by Articles 48, 49 and 50 main proceedings, the Sozialgericht therefore

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has to decide whether or not the allowance in the abovementioned cases of Stöber and and supplementary benefit for dependent chil- Pisoa Pereira and Merino Garcia. dren to which the plaintiff's claim relates form part of a contributory scheme and, if so, whether the BfA's refusal to award those benefits, in the circumstances of this case, involves unjustified discrimination.

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Thus, the present case will be covered by tion Council, it would render the provisions point 1(C) of Annex I to Regulation N o of the second indent of Article l(b)(ii) super- 1408/71. 19 fluous.

27. Mrs Sürül is regarded as compulsorily 28. Finally — the German authorities argue insured only under the statutory invalidity — Mrs Sürül does not fall within the cat- and old-age scheme as a result of account egory of persons covered by Decision N o being taken of the period (from 1 October 3/80 or by the second indent of Article 2, 1992 to 30 September 1995) devoted to the that is to say, she is not a member of the education of her child, during which, by family of a Turkish worker subject to the leg- operation of law, she is deemed to have satis- islation of a Member State, who resides in the fied the obligation to pay contributions. Not territory of that Member State. Although being 'compulsorily insured against the risk Mr Sürül was engaged at the material time in of unemployment' and not receiving, by virtue a part-time job in addition to his university of such insurance, 'cash benefits under sick- studies, that activity did not, under domestic ness insurance or comparable benefits' the legislation, give rise to any obligation to pay plaintiff dos not meet the requirements of insurance contributions in respect of unem- Annex 1(C) to Regulation N o 1408/71, indi- ployment, sickness or old age. The plaintiff's rectly referred to in Article l(b)(ii), second spouse was insured only against accidents at indent, of Decision N o 3/80. That decision is work by virtue of contributions paid entirely consequently inapplicable to a person in by his employer. Mrs Sürül's position.

plaintiff and the Commission, repudiating the Accordingly, this Court certainly has juris- position that it adopted previously in Taflan- diction to give preliminary rulings on the Met, the French, United Kingdom and Neth- interpretation of provisions of Decision N o erlands Governments maintain in the alterna- 3/80. tive that in these proceedings the conditions are fulfilled for this Court to limit the tem- poral effects of its interpretative ruling, allowing the Community provisions at issue in this case to be relied on only by applicants (ii) The answer to the first preliminary ques- for the family benefits at issue who have tion resorted to proceedings before a national court or have availed themselves of equivalent rem- edies against the competent authorities of the Member State concerned prior to the date of publication of this Opinion or of the judg- ment of the Court of Justice. 31. By asking for interpretative guidance con- cerning Article 3(1) of Decision N o 3/80, the Sozialgericht has confronted the Court with the problem of precisely defining the terms of the judgment in Taflan-Met, cited above. And Legal analysis the problem must necessarily, in my opinion, be dealt with now: the national court did not expressly formulate its questions in that way solely because the judgment in Taflan-Met (i) Jurisdiction of the Court was delivered after the request for a ruling was submitted. 21

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. . the binding In reply to the first question from the national effect of the decisions of the Association court in that case, the Court of Justice held Council cannot depend on whether imple- that — in the absence of express provisions menting measures have in fact been adopted on the matter — Decision N o 3/80 entered by the Contracting Parties' or in particular into force on 19 September 1980, the day of on the adoption by the Council of the Euro- its adoption, and has been binding on the pean Union — in accordance with Article 2(1) of the Agreement on measures and pro- cedures required for implementation of the 22 — In Taflan-Met the plaintiffs in the four main actions before EEC-Turkey agreement 26 — of the acts nec- the Arrondissementsrechtbank, Amsterdam, were three Turkish citizens residing in Turkey, the spouses of other essary for application of the measures (deci- Turkish nationals who had been employed in various Member States, including the Netherlands, and a Turkish worker sions and recommendations) adopted by the residing in Germany, earlier employed in the Netherlands Association Council in those sectors which, and then in Germany, where he became unfit for work.

And the plaintiff in the fourth national action, who had applied for an invalidity pension both in Germany and in the Netherlands, was refused it by the competent Netherlands institution (but not by the German one) on similar grounds: the applicant's incapacity for work occurred when tne person concerned was no longer employed in the Netherlands and, therefore, he was not sub- 33. In the second question referred to the ject to Netherlands legislation. In the opinion of the national court, the plaintiffs in the Court of Justice, the national court in the main proceedings — although not insured within the meaning Taflan-Met case asked '(b) If the first ques- of the relevant provisions of national law — could have been entitled to the allowances for which they applied in the tion is answered in the affirmative, are Articles Netherlands by virtue of Decision N o 3/80 and, in par- 12 and 13 of Decision N o 3/80 sufficiently ticular, Articles 12 and 13 thereof. Under Articles 12(b) and 13 of Decision N o 3/80, relating to invalidity benefits, old-age benefits and survivors, Article 45 of Regulation N o 1408/71 applies by analogy. However, under paragraph 4 of

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clear and precise to be capable of being applied and precise, Decision N o 3/80 cannot be directly without the need for further imple- applied so long as supplementary imple- menting measures, as provided for in Article menting measures have not been adopted by 32 of Decision N o 3/80?' the Council'. 30

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36. However, in my opinion there are good each case everything that is said in the text of reasons for doubting the correctness of that the judgment expresses the will of the reading of the judgment concerned. 31 Let us Court'. 33 That principle also derives from the be clear: I do not seek to object that the fact that the rule stare decisis has not been (implicit) statement that Article 3(1) has no incorporated in the Community judicial direct effect is alien to the ratio decidendi of system. The Court does not of course fail to the judgment in Taflan-Met and constitutes a ensure that its case-law displays continuity mere obiter dictum having no practical rel- and that its judgments are logically compat- evance. 32 ible and not contradictory with each other. However, the Court is not technically bound by its earlier judgments, 34 and may therefore — as far as the present case is concerned as well — give a different answer to a prelimi- nary question dealt with in an earlier

in the later case of Marshall by Advocate General Slynn, who preferred to abide by the approach taken in the opera- tive part of the von Cohort judgment rather than the obiter 31 — It seems to me that certain writers were over-hasty when, in dictum in paragraph 26 (see his Opinion of 18 September 1985 in Case 152/84 [1986] ECR 725, particularly at 732 and relation to the Taflan-Met judgment, they employed terms

Law. Rev., 1997, p. 342, in particular pp. 350 Court referred to the obligation of the national court to and 351). interpret its national law in the light of the Community 32 — On reflection, a hypothetical decision of the Court on the directive relevant to the subject-matter of the dispute 'whether direct effect of the principle of equal treatment (or of provi- the provisions in question were adopted before or after the sions of Decision N o 3/80 other than Articles 12 and 13) directive'. Sec also A. Arnull, 'Owning up to fallibility:

The dis- — by providing interpretative guidance (even if not asked tinction between ratio decidendi and obiter dicta is, on the for it) in relation to that provision as well. By taking that other hand, important in common law jurisdictions since course, the Court demonstrated that it agreed with the posi- only the former can bind other courts in the future (sec tion taken by the national court to the effect that, in view of Armili, op. cit. — footnote 32 — p. 249). the subject-matter of the dispute, Article 3(1) was not rel- 34 — Sec ibid., pp. 248 and 249 (where there arc also further bib- evant to the decision to be given.

national law'. Slightly different wording is used in paragraph Article 177 and stated that there were 'no grounds for giving 26 of the same judgment, which referred to the obligations a fresh interpretation of the first paragraph of Article 95 of incumbent upon the national court 'in applying the national the Treaty' —ibid., p. 155).

38. Now, the arguments for direct effect of Article 3(1) of Decision N o 3/80 in my view 39. In that Opinion, however, I dwelt (as well are stronger than those put forward in as upon the content of Decision N o 3/80 and support of the opposite conclusion. 36 In all its important financial repercussions) on the need to adopt proper measures for the imple- mentation of that decision, putting forward an argument very different from that advanced 35 — See the judgment in Case 14/86 (cited in footnote 21 above), paragraph 12. The cases in which the Court has expressly in this case by the five Member States which departed from its earlier case-law are as few as they are cel- have submitted observations to the Court. I ebrated (see Case C-10/89 HAG GF [1990] ECR I-3711, relating to trade marks, Joined Cases C-267/91 and C-268/91 argued, in fact, that — in view of the silence Keck and Mithouard [1993] ECR I-6097, regarding measures having effect equivalent to quantitative restrictions on of the contracting parties regarding the date imports, and Case C-308/93 Cabanis-Issarte [1996] ECR of entry into force of the measure and since I-2097, concerning the importance of the distinction drawn in national social security systems between rights acquired there was no other indication of their unequi- in person and rights derived through others for the purposes of determining whether numerous provisions of Regulation vocal intention to deem it to be in force as N o 1408/71 are applicable rattorte personae). 36 — V. P. Mavridis, 'Étrangers sans prestations sociales?', l'Observateur de Bruxelles, N o 20/1996, p. 29, in particular at 31, according to which the conclusion at Article 3(1) of Decision N o 3/80 may be relied on in legal proceedings as 37 — Opinion in Case C-277/94 (cited above, footnote 11), point fully in line with the case-law of this Court. 12.

41. Above all, if Taflan-Met were to be under- 40. It is precisely on the basis of those con- stood as construed by the national govern- siderations that, in my opinion, it is necessary ments in this case, it would have to be assumed to reject the purely literal interpretation of that the impossibility of relying on Decision the judgment in Taflan-Met proposed by the N o 3/80 before the national courts derived German Government and the other Member from a rule that its various provisions were States (see point 35 above) to the effect that 'inseparable'. In other words, it would have neither Article 3(1) nor any other provision to be presumed that all the provisions in of Decision N o 3/80 has direct effect, despite question were, as a whole, devoid of direct the fact that the decision entered into force applicability; and that inapplicability would on the day of its adoption. Thus interpreted, be based on a presumption, which would not the judgment of the Court would mark a departure from its settled case-law according

39 — See Case 30/88 Greece v Commission [1989] ECR 3711, paragraphs 10 to 17, and the Opinion delivered on 4 July 1989 by Advocate General Tesauro in that case (p. 3723, 38 — Ibid., footnote 27. point 9).

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40 — Sec Case 12/86 Demirel v Stadt Schwäbish Gmünd [1987] ECR 3719. The Court stated that Article 12 of the EEC- Turkey Association Agreement (under which the contracting parties agree to be guided by Articles 48, 49 and 50 of the Treaty for the purpose of progressively securing freedom of movement for workers between them) and Article 36 of the additional Protocol (under which freedom of movement is to be secured in progressive stages in accordance with the principles set out in Article 12 of the Agreement between the end of the 12th and the 22nd year after the entry into force of the Agreement, in accordance with rules to be 42. That said, it is difficult to see how the decided upon for that purpose by the Association Council) general statements made in paragraphs 33 and essentially serve to set out a programme. Moreover, the Court held that Article 7 of the Agreement (under which the 37 of that judgment, to the effect that Deci- contracting parties are to adopt all measures of a cenerai or particular nature to ensure fulfilment of the obligations sion N o 3/80 is not capable of immediate arising from the Agreement and are to refrain from any application in the absence of additional imple- measures liable to jeopardise the attainment of the objectives of the Agreement) cannot directly confer on individuals menting measures, can be in any way linked rights which are not already vested in them by other provi- sions of the Agreement. with the provisions of Article 3(1) of that 41 — See Case C-192/89 (cited in footnote 20 above) which is decision (which, after all, is the only provi- concerned with: (i) Article 2(l)(b) (under which after five years' lawful employment in a Member State a Turkish sion relevant to the decision to be given in worker enjoys free access to any paid employment of his the main proceedings). choice) and Article 7 (under which the Member States and Turkey may not introduce new restrictions on access to employment for workers and members of their families who are resident in their respective territories and in lawful employment) of Decision N o 2/76 of the Association Council adopted in order to implement the EEC-Turkey agreement; and (ii) Article 6(1) (under which Turkish workers registered as belonging to the labour force of a Member State enjoy in that State free access to any paid employment of their choice after four years' lawful employment) and Article 13 (con- taining a standstill clause similar to that in Article 7 of Deci- sion N o 2/76) of Decision N o 1/80 of the Association Council concerning development of the association. See also the judgment in Case C-355/93 (cited in footnote 10 above), paragraphs 17 to 20, concerning the interpretation of the second paragraph of Article 7 ofthe abovementioned Deci- The principle laid down by Article 3(1) of the sion N o 1/80 of the Association Council. decision is simply the principle of equal

42 — See Case C-103/94Krid [1995] ECR I-719 and Case C-113/97 Babahenini [1998] ECR I-183, paragraphs 17 and 18. The abovementioned Article 39(1) appears in Title III (concern- ing cooperation regarding labour) of the Cooperation Agree- ment between the European Economic Community and the People's Democratic Republic of Algeria, signed in Algeria on 26 April 1976 and approved on behalf of tne Community Furthermore, none of the national govern- by Council Regulation (EEC) N o 2210/78 of 26 September 1978 (OJ 1978 L 263, p. 1). That provision states: 'Subject ments which submit that Decision N o 3/80 to the provisions of the following paragraphs (concerning aggregation of insurance, employment and residential periods lacks direct applicability in its entirety, relying completed in the various Member States, entitlement to family benefits for family members residing in Community in support on Taflan-Met, has been able to territory and the transfer of pensions of income to Algeria), indicate what specific additional measures workers of Algerian nationality and any members o f their families living with them shall enjoy, in the field of social should be adopted to give effect to the prin- security, treatment free from any discrimination based on nationality in relation to nationals of the Member State in ciple of equal treatment. which they are employed'. 43 — See Case C-18/90 Kziber [1991] ECR 1-199, Case C-58/93 Yousfi [1994] ECR I-1353, and Case C-126/95 Hallouzi- Choho [1996] ECR I-4807, paragraphs 19 and 20. The abovementioned Article 41(1) appears in Title III (concern- ing cooperation regarding labour) of the Cooperation Agree- ment between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 26 April 1976 and approved on behalf of the Community by Council Regula- tion (EEC) N o 2211/78 (OJ 1978 L 264, p. 1). The provi- sion in question states: 'Subject to the provisions of the fol- lowing paragraphs (concerning aggregation of insurance, employment and residential periods completed in the various Member States, entitlement to family benefits for family members residing in Community territory and the transfer of pensions of income to Algeria), workers of Moroccan nationality and any members of their families living with them shall enjoy, in the field of social security, treatment free from any discrimination based on nationality in relation to nationals of the Member State in which they are employed'. 43. It should be added that this Court has In those judgments, the Court observed that the objective of the EEC-Morocco Agreement, namely the promotion of already indicated that the principle of equal comprehensive cooperation between the contracting parties, particularly regarding labour, confirms that the principle of treatment has direct effect, in relation to the non-discrimination laid down in Article 41(1) can directly similar provisions of Article 39(1) of the EEC- apply to the legal situation of individuals.

An association agreement creates between the Community and the third country concerned a closer link than that provided by a coopera- tion agreement, 45 'creating special, privileged links with a non-member country which must, at least to a certain extent, take part in the It is true that the EEC-Turkey Agreement — Community system'; 46 the direct effect of the and in particular Article 12, which goes no principle of equal treatment must therefore a further than providing that the contracting fortiori be upheld in the present case. parties agree to be guided by Articles 48, 49 and 50 of the Treaty — 48 is intended to bring about the free movement of workers between the Member States and Turkey only gradu- ally in accordance with the requirements of Community law. That consideration, how- In particular, the object of the EEC-Turkey ever, does not in my opinion mean that the Agreement is 'to promote the continuous and provisions intended to implement that pro- cess cannot, as a matter of principle, have direct effect. 49 Indeed, it is clear from the case-law of this Court that an 'international 44 — See Case C-18/90 (cited in footnote 43 above), paragraph 19. 45 — Although the legal basis is the same (Article 238 of the agreement does not necessarily have to be Treaty), the purpose of cooperation agreements is more lim- "long term" (in other words directed towards ited than that of agreements providing for an association with or future accession to the Community of the third integration into the Community) for its State concerned. For example, the abovementioned EEC- Algeria and EEC-Morocco Agreements purport merely 'to promote overall cooperation between the Contracting Par- ties with a view to contributing to the economic and social development of [the third country] and helping to strengthen relations between the Parties* (see Article 1 of the EEC- 47 — See the preamble to and Article 2(1) of the EEC-Turkey Algeria Agreement and Article 1 of the EEC-Morocco Agreement (emphasis added). Agreement), to that end providing for the adoption of provi- 48 — See footnote 40 above. sions and measures in the fields of economic, technical and 49 — See the Opinion of Advocate General Darmon delivered on financial cooperation and in the trade and social fields. 15 May 1990 in Case C-192/89 (cited above, footnote 20, 46 — See Case 12/86 (cited in footnote 40 above), paragraph 9. p. I-3473), points 27 to 29.

provisions to be of direct effect.' It is suffi- 44. Finally, as observed by the plaintiff, it cient if the agreement in question 'does more does not seem to be of any importance, as far than merely impose reciprocal obligations on as the answer to the first question is con- the signatory States, in other words [if] the cerned, that Article 3(1) upholds the principle agreement is of such a nature as or is intended of non-discrimination but does so expressly to govern the legal situation of individuals'. 50 subject to special provisions of Decision N o

(see point 32 above). It is thus clear that there eral wording of Article 3(1) of Decision N o is no basis for the argument put forward by 3/80 and to the purpose and nature of the the United Kingdom and French Govern- EEC-Turkey Agreement — it must be con- ments that the area of social security falls cluded that the provision at issue in these outside the scope of the EEC-Turkey Agree- proceedings embodies, for the Member States, ment and that the principle of equal treat- a clear, precise and unconditional obligation ment at issue in this case, not directly pro- not to treat Turkish migrant workers or mem- vided for in the EEC-Turkey Agreement, is bers of their families or survivors less favour- not capable of immediate application (see ably than Community citizens as regards point 23 above). family benefits under the social security

ventions and the association agreements between the EEC and the African States and Madagascar) by a great imbal- ance in the level of the obligations undertaken by the con- tracting parties — an imbalance inherent in the special nature of the convention in question — may contain provisions I recognise that this solution — which may capable of conferring on individuals rights which they may invoke before national courts to preclude the application of extend to other areas of social security, in conflicting national provisions. respect of which Decision N o 3/80 likewise

51 — See the European agreements establishing associations between the European Communities and their Member States, on the one hand, and the Republic of Hungary Accordingly, it is necessary first to determine (adopted by Council and Commission Decision of 13 December 1993, 93/742/Euratom-ECSC-EC, OJ 1993, whether or not direct effect attaches to any L 347, p. 1), the Republic of Poland (adopted by Council and Commission Decision of 13 December 1993, other (substantive) coordinating provisions 93/743/Euratom-ECSC-EC, OJ 1993 L 348, p. 1), the Republic of Romania (adopted by Council and Commission contained in the decision under review, on Decision of 19 December 1994, 94/907/Euratom-ECSC-EC, which the claim of the plaintiff in the main OJ 1994 L 357, p. 1), the Republic of Bulgaria (adopted by Council and Commission Decision of 19 December 1994, proceedings is based (without prejudice, for 94/908/Euratom-ECSC-EC, OJ 1994 L 358, p. 1), the Slovak Republic (adopted by Council and Commission Decision of the moment, to the question whether Deci- 19 December 1994, 94/909/Euratom-ECSC-EC, OJ 1994 sion N o 3/80 is applicable ratione personae to L 359, p. 1), and the Czech Republic (adopted by Council and Commission Decision of 19 December 1994, her legal situation). 94/910/Euratom-ECSC-EC, OJ 1994 L 360, p.1). 52 — See footnotes 43 and 44 and the corresponding parts of the main text. According to Pieters and Pizarro, the failure to include in those European agreements a prohibition of dis- crimination on grounds of nationality, potentially capable of being held by the Court to be directly applicable, is prob- ably attributable to the discomfort with which the Kziber judgment was received in some Member States (see D. A case like that of Mrs Sürül concerns, I think, Pieters, 'Enquiry into the legal foundations of a possible extension of Community provisions on social security to a situation which can be appraised directly in third-country nationals legally residing and/or working relation to the obligation of equal treatment in the European Union', in the records of the seminar Social Security in Europe: Equality Between Nationals and Non- described above: the right asserted by the Nationals (Oporto, 10-12 November 1994), Lisbon, 1995, p. 189, in particular at 232; see also S. Pizarro, T h e Agree- plaintiff to receive the family benefits at issue ments on Social Security between the Community and third for the period claimed — which, undisput- states: legal basis and analysis', ibid., p. 105, in particular at 115). edly, fall within the substantive scope of Deci- 53 — See Pieters (op. cit., footnote 52, at pp. 227 and 228), who sion N o 3/80 (see Article 4(1 )(h)) — derives notes the significant imbalance between the commitments assumed by the contracting parties in relation to social secu- from application of the principle of non- rity, drawing attention to the fact that in Decision N o 3/80 no mention was even made of any coordination with the discrimination in conjunction with the Turkish social security scheme and, moreover, the Turkish authorities do not afford reciprocal treatment to Commu- German legislation on family benefits. The nity citizens. finding that Article 3(1), relied on by the

47. I thus come to the question whether the difference of treatment complained of by the plaintiff is objectively justified and thus does not offend against the principle of equal treat- ment. It may be useful to recall in that con- nection the principles laid down by this Court I refer to Article 48(2) of the Treaty because in implementation of Article 6 (formerly it is relevant to this Opinion: let us consider Article 7) of the Treaty regarding the general the aim pursued, in their respective areas of requirement of non-discrimination on grounds application, by that provision and by Article of nationality and in the specific area of equal 3(1) of Decision N o 3/80, and let us compare treatment for workers. O n the basis of the the objectives and the context of the EEC- Court's case-law, the Member States must in Turkey Agreement, on the one hand, with principle afford foreign Community nationals those of the Treaty, on the other (see point 43 the treatment accorded to their own citizens: above). We shall see how the interpretation which does not mean that different treatment given by the Court to Article 48(2) of the of the two categories, where the situations Treaty in relation to social security may prop- can be legally distinguished by reference to erly be extended to the principle of equal non-arbitrary and reasonable criteria, may treatment laid down in Article 3(1): the latter not prove justified and, therefore, be free of provision, though worded differently, is in discriminatory effects contrary to Commu- fact substantially similar in content to the nity law. 54 In particular, the general prohibi- corresponding provision of the Treaty. It will tion of discrimination on grounds of nation- be remembered that, according to the case-law ality means that the citizens of other Member of this Court, 'the extension of the interpreta- States may not be treated differently from tion of a provision in the Treaty to a compar- those of the host State regarding access to ably, similarly or even identically worded employment and work, with regard in par- provision of an agreement concluded by the ticular to pay, dismissal, re-employment and Community with a non-member country social security. 55

depends, inter alia, on the aim pursued by ensure equal treatment, not even by recourse each provision in its particular context and ... to measures based on a composite criterion, a comparison between the objectives and the combining the criterion of the nationality of context of the agreement and those of the the beneficiary of a social security benefit Treaty is of considerable importance in that with that of the nature (temporary or con- regard. As Article 31 of the Vienna Conven- tinuing) of his residence in national territory. tion of 23 May 1969 on the law of Treaties Now, that is precisely what the BKGG does: provides: "An international treaty must not it indirectly draws a distinction — regarding be interpreted solely by reference to the terms 'access to the benefit of the legislation' — in which it is worded but also in the light of between the treatment afforded to a German its objectives'". 57 or Community national and that accorded to a person who is neither, depending on the type of residence authority held by the person concerned.

48. If the approach set out in Pinna58 is transposed to the analysis of Article 3(1) of Decision N o 3/80, the result is that the Member States cannot avoid the obligation to

Those ben- According to the Court, Article 95 should be interpreted in the light of the purpose of the Treaty, including, first, the efits were withheld from Mrs Surul only establishment o r a common market in which any impedi- ment to trade was removed with a view to merging the because she is a citizen of a third country. national markets into a single market as similar as possible The Commission has correctly pointed out to a genuine internal market. In contrast, the EEC-Austria Free Trade Agreement, including the first paragraph of that, in contrast to non-Community foreign Article 18, pursued more limited purposes: namely, consoli- dation and extension of economic relations between the con- nationals in the same position as the plaintiff, tracting parties and the harmonious development of com- German citizens residing temporarily in Ger- merce between the EEC and Austria, in compliance with fair conditions of competition. Consequently, the Court con- many are in all circumstances entitled to family cluded that the first paragraph of Article 18 of the EEC- Austria Free Trade Agreement did not preclude national leg- benefits: they satisfy by definition the require- islation which penalised infringements relating to the payment of VAT more severely in the case of imports than in the case ment laid down for that purpose by the of transfers of goods within the country, even where that BKGG of being authorised to stay in national difference was disproportionate in view of the diversity of the two types of infringement (see paragraphs 14 to 21 of territory on a continuing and permanent basis. the judgment). See also the judgment in Case 17/81 Pabst & Richarz, cited in footnote 12 above; and Case C-163/90 Legros [1992] ECR I-4625, in which the Court held that the EEC-Sweden Agreement, pursuing consolidation and exten- sion of economic relations between the contracting parties, in particular by removal of barriers to trade in accordance with the GATT provisions concerning the establishment of free trade areas, would be deprived o f much of its effective- ness if the concept of 'charge having an equivalent effect', forming part of the prohibition of the collection of such charges referred to in Article 6 of the agreement in ques- tion, were interpreted as having a more limited scope than Having regard to the purpose of the benefits

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60 — That the principle of equal treatment laid down in Decision N o 3/80 must apply also to family members of a worker 'who reside in the territory of one of the Member States' is 59 — V. B. Baron von Maydell B., 'Treatment of Third-Country apparent from the clear wording of the second indent of Nationals in the Member States of the European Union and Article 2 of that decision and also from the analogous appli- the European Economic Area in Terms of Social Law (Gen- cation of the principles laid down by the Court regarding eral Report)', in records of the seminar Social Security in family members of a worker who are living with him, in the Europe, cited in footnote 52 above, p. 137, and particularly judgment in Case C-126/95 Hallouzi-Choho (cited in foot- p. 149. note 43 above).

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O P I N I O N OF MR LA PERGOLA — CASE C-262/96

65 — See footnote 19 above and the corresponding part of the main text. 66 — Judgment of 12 June 1997 (cited above in footnote 15). Mr Merino Garcia, a worker of Spanish nationality who had emigrated to Germany, had applied to the BfA under German law for family allowances for his children residing in Spain for the period from January 1986 to December 1988. Under 52. I mentioned earlier (see points 25 to 28 the BKGG, persons domiciled or residing in German terri- above) that, according to the German Gov- tory are entitled to family allowances for children and per- sons assimilated thereto; however, for the above purposes ernment, the applicant is not one of the per- children domiciled or residing outside Germany do not qualify, without prejudice to the relevant Community leg- sons to whom Decision N o 3/80 applies for islation. The right to receive such benefits is granted as from the purposes of payment of family benefits the beginning of the month in which the conditions for entitlement are fulfilled and until the end of the month in under German legislation. In its view, she is which those conditions cease to be fulfilled. Merino Garcia not covered either under the first ('workers') had taken unpaid leave in 1986 (from 20 January to 2 March) and in 1987 (from 13 January to 2 March). In cases of unpaid leave, the German law provides, first, that an employee remains insured under the German sickness insurance scheme for a maximum period of three weeks. Secondly, for the pur- poses of computation of periods conferring entitlement to 61 — Sec footnote 5 above and the corresponding part of the main unemployment benefit, account is also taken of periods in text. which wages are not paid, provided that each period docs not exceed four weeks; where the period is longer, the 62 — Sec the Opinion of Advocate General Van Gerven of 14 employment relationship is deemed to be interrupted as March 1989 in Case388/87 Bestuur van de Nieuwe Algemene from the beginning of the relevant period. Since Mr Merino Bedrijfsvereniging v Warmerdam-S teggerda [1989] ECR Garcia continued to be covered by compulsory sickness I-1212, paragraph 6. insurance, and therefore continued to fall within the defini- 63 — Sec the Opinion of Advocate General Fennelly of 6 March tion of 'employed person' under Article l(a)(i) of Regula- 1997 in Case C-266/95 (cited above in footnote 15, [1997] tion N o 1408/71, untilthe end of the third week reckoned ECR I-3282), point 17. from the beginning of each period of unpaid leave, he 64 — See the Opinion of Advocate General Tesauro of 22 Feb- retained entitlement to family benefits for the whole period ruary 1990 in Case C-2/89 Kits van Heijningen [1990] ECR to which his application referred, including those two periods 1-1764, point 14. of unpaid leave.

67 — Article 73 of Regulation N o 1408/71, as amended by Council Regulation (EEC) N o 3427/89 of 30 October 1989, amending Consequently, the Court held to be incom- Regulation (EEC) N o 1408/71 on the application of social security schemes to employed persons, to self-employed patible with Article 48(2) national legislation persons and to members of their families moving within the Community and Regulation (EEC) N o 574/72 laying down like the BKGG, which — whilst recognising the procedure for implementing Regulation (EEC) N o that workers whose children are domiciled or 1408/71 (OJ L 331, p. 1) is entitled 'employed or self- employed persons the members of whose families reside in habitually resident in the territory of the a Member State other than the competent State'. That article provides that an employed or self-employed person subject competent Member State are entitled to family to the legislation of a Member State is to be entitled, in respect of the members of his family who arc residing in allowances even for the full calendar months another Member State, to the family benefits provided for following within an extended period of unpaid by the legislation of the former State, as if they were residing in that State. As the Court observed in Merino García, it is leave — prevents those benefits, in respect of clear from the wording of that provision that it does not that period, from accruing to an employed itself confer an entitlement to family benefits, such benefits being granted on the basis of the relevant provisions of person whose children are domiciled in national law (judgment cited in footnote 15 above, para- graph 29). 68 — The provisions of which are repeated in Article 1(b)(ii) of Decision N o 3/80 (see footnote 5 above). 69 — Merino Garcia, cited in footnote 15 above, paragraph 25. 71 — See footnote 66 above and the corresponding part of the 70 — See the Opinion of Advocate General La Pergola of 6 June main text. 1996 in Joined Cases C-4/95 and C-5/95 (cited in footnote 72 — See footnote 56 above and the corresponding part of the 14 above, [1997] ECR I-513, point 28). main text.

55. The importance of the Stöber and Piosa Pereira and Merino García judgments to the present case seems to be this: in those judg- ments the Court upheld the alternative nature 56. From the same judgments, however, a of the definitions contained in Article 1 of further principle can in my opinion be inferred: Regulation N o 1408/71 whenever it is neces- where the Member States do not intend to sary to safeguard the effectiveness of any spe- limit the benefit of family allowances only to cial basis of definition introduced by the Com- persons belonging to a mutually supporting munity legislature in order to identify the community, involving an insurance scheme persons entitled to a given category of social covering an expressly specified risk, there is security benefits. no reason not to consider the circle of per- sons entitled to the benefit as extending to all workers, in the widest sense of that term. That term refers, in the case of employed workers, to all persons insured under one of the social security schemes mentioned in Precisely that eventuality arose in both of the Article 1(a) of Regulation N o 1408/71, against cases just referred to: under Annex I, point the contingencies and under the conditions 1(C), of Regulation N o 1408/71, the export- indicated in that provision. 74 ability of family benefits is recognised in Ger- many only for those workers who form part of the body of persons covered by the German social security scheme by paying contribu- tions to a particular compulsory insurance scheme (the unemployment scheme for employed persons, pension insurance or old-age insurance for self-employed persons). The will of the Community legislature must 57. Let us now consider what answer may be be respected, observed the Court, and that is given to the second and third questions in why a person who is voluntarily or compul- this case. It is important not to lose sight of sorily insured against other contingencies must one fact: it is true that Article 25(1) of Deci- not be allowed to obtain German family ben- sion N o 3/80 provides that, for the purposes efits by relying on one of the other defini- of implementing the decision, Annex I to tions of 'employed person' (or, as the case Regulation N o 1408/71 'is to be applicable'; however, point 1(C) of the annex in question is applicable where 'the competent institution for granting family benefits in accordance 73 — See Merino Garcia (cited in footnote 15 above), paragraphs with Chapter 7 of Title III of the regulation 33 to 36. I should also point out that the Court reached a similar conclusion regarding the expression self-employed person in Article 73 o f Regulation N o 1408/71 and held that the same German legislation was incompatible with the rule requiring equal treatment, laid down in Article 52 of the Treaty, in its earlier judgment in Stöber and Piosa Pereira, 74 — See the judgment in Case C-266/95 (cited in footnote 15 also referred to above (see footnote 14 above). above), paragraph 22.

In order to identify the persons to whom Decision N o 3/80 applies, the reference to Annex I in Article 25(1) must therefore prop- erly be understood as limited only to situa- tions governed by the provisions of Chapter 7 of Title III of Regulation No 1408/71. Such situations are those in which generally the 58. However, on close examination, none of problem arises of ensuring for workers, when the situations mentioned above arises in this they move within the Community, the rights case: Mrs Sürül is merely asking for applica- and advantages already acquired, or in any tion of the national provision to her situation event those in which some intra-Community as if she possessed German nationality (or that element is necessary. 75 More specifically they of another Member State) and seeks to enforce involve: (a) the right to aggregate periods of a right deriving directly and solely from the insurance, employment or self-employment BKGG. In order to obtain the allowance and accrued in another Member State, where the supplementary allowance for dependent chil- availability of family benefits is made subject dren, the plaintiff — by contrast with Messrs by the competent Member State to the com- Stöber, Piosa Pereira and Merino Garcia — pletion of minimum periods (Article 72), (b) does not invoke a Community provision co- the right of an entirely unemployed person ordinating the laws of the Member States, who was formerly employed in another such as a specific provision of Regulation N o Member State to receive the benefits in ques- 1408/71 (for example, Article 72 concerning tion for members of his family residing in the aggregation, to which Article 18 of Decision Member State in which he presently resides N o 3/80 expressly refers 'for the acquisition (Article 72a), (c) the right of the worker to of the right to [family] benefits') or of Regu- benefits for members of his family who reside lation N o 574/72. In the absence of any intra- in a Member State other than the competent Community element, the reference to Annex Member State (Article 73), 76 and (d) the right I to Regulation N o 1408/71 seems to me to of an unemployed worker in receipt of be entirely relevant. The definition of the per- unemployment benefit to the family benefits sons to whom the relevant legislation applies — having been adopted by the Community legislature specifically with reference to the 75 — See Case C-153/91 Petit [1992] ECR I-4973 and the Opinion family benefits paid by the competent German of Advocate General Jacobs of 2 May 1996 in Joined Cases C-245/94 and C-312/94 Hoever and Zachow [1996] ECR authorities and to the situations in which a 1-4895, point 41. problem arises of coordination of national 76 — That, it will be remembered, was the provision the applica- tion of which was at issue in Stöber and Piosa Pereira and social security legislation — cannot therefore Merino Garcia (see footnotes 14, 15 and 67 above and the corresponding parts of the main text). be valid for the present case.

59. Moreover, as recognised by the German As is apparent from the order for reference, Government itself, no special arrangements for the specific purposes of the payment of for applying the BKGG are contained in the such benefits, the persons entitled are not Annex to Decision N o 3/80, which merely required to be affiliated and contribute to a indicates in Part II the 'other events' against specifically designated (compulsory or volun- which a 'worker' must be insured under a tary) insurance scheme: it is no accident that social security scheme applicable to all resi- the system applies to all residents regardless . dents, in Denmark, Ireland and the United of their status as employed persons. If that is Kingdom. The German authorities' argument the case, whoever forms part on any basis of — that the Association Council introduced a the mutually supporting community covered lex specialis in this area which takes prece- by the German social security scheme must dence over the general provisions of Article necessarily fall within the concept of 'worker' 1(b) of Decision N o 3/80, and of which the for the purposes of the dependent child allow- effectiveness should be guaranteed (see point ance. 26 above) — does not appear to be supported by the legislation. Therefore, in contrast to the Stöber and Piosa Pereira and Merino Garcia cases, since entitlement to the social security benefit at issue is not conditional upon affiliation of the person entitled to a specific insurance scheme, there is no need here to avoid the illogical solution which would be arrived at if the availability of that right to the person concerned were at the same time recognised by another route. 77 61. That requirement is satisfied by both the plaintiff and her husband. During the mater- ial period (that is, as from 1 January 1994), both were compulsorily assured against con- tingencies corresponding to the branches of a social security scheme applicable to employed persons, notwithstanding that they did not make direct payment of their contributions 60. In the absence of an express provision (although they each did, fictitiously, through like that in Annex I, point I(C), of Regula- a third party: see points 12 and 13 above). tion N o 1408/71 (not relevant to this Opinion The BKGG considered Mrs Sürül as covered — see points 57 and 58 above), the (presumed) by compulsory statutory invalidity and rule of strict correspondence between the old-age insurance for three years; Mr Sürül definitions contained in Article l(b)(i) and (ii) had compulsory insurance against accidents of Decision N o 3/80, on the one hand, and at work, the contributions being paid by his the independent systems and specific risks employer. I do not see any reason why these determined by the competent Member State, situations could not and should not confer on on the other, seems to be inapplicable to the the persons concerned full membership of the case of the German family benefits scheme. mutually supporting community covered by the German social security scheme, in con- trast to the compulsory insurance against unemployment within the field of application 77 — See my Opinion in Joined Cases C-4/95 and C-5/95 (cited in footnote 70 above), point 31. of Regulation N o 1408/71.

62. I consider therefore that, under Article Decision N o 3/80 and the EEC-Turkey Agree- l(b)(i) of Decision N o 3/80, Mrs Sürül comes ment with which it is linked. within the concept of worker also for the purposes of the branch of social security relating to family benefits, even though that is, and can only be, different from the one relating to the contingencies for which she was automatically insured. Similarly, 64. Before setting out my conclusions in the Mr Sürül, who is actually in employment, is terms indicated thus far, a further consider- to be classified as a 'worker' within the ation is appropriate. I do not deny the fact meaning of the same provision. Conversely, that the reference to Annex I to Regulation no importance can be attached, in particular, N o 1408/71, made in Article 25(1) of Deci- to the minimum number of hours which he sion N o 3/80, allows an interpretation dif- devotes to his employment 78 or to the amount ferent from the one which seems to me to be of his remuneration. 79 Therefore, in the period the most logical and rigorous (see point 57 following the three years spent educating her above). That is the approach taken by the child, Mrs Sürül had (and still has) the status German authorities (see point 26 above): that of 'family member of a worker'; and that is reference, it is said, is made solely in order to so even if she was not (and is not) any longer describe the relevant basis of membership of covered by a system of compulsory social the national social security system ('any person security or an optional insurance. compulsorily insured against unemployment or any person who, as a result of such insur- ance, obtains cash benefits under sickness insurance or comparable benefits'), but does not concern specific situations for which pro- tection is available, provided for in Articles 72 to 74 of that regulation. Even a Turkish citizen who — like the plaintiff in the main proceedings — applies for a family benefit in circumstances not falling within those specific 63. The solution proposed here does not in situations, and therefore in the absence of any any way encroach upon the principles laid intra-Community element, should, in other down by the Court in Stöber and Piosa Pereira words, satisfy the affiliation condition indi- and Merino Garcia. Also, in circumstances cated in that annex before it can be said that like those of this case, to keep to a limited the claimed right exists. concept of 'worker' would certainly be tan- tamount to unjustifiably limiting the right of Turkish citizens to move, with or without their families, within the Community for the purposes of employment; that would involve denying adequate protection for Turkish 65. I consider, however, that there are also workers subject to the legislation of a Member arguments of a technical and substantive nature State, in breach of the purpose and spirit of which militate against the latter interpreta- tion. Article 25(1) of Decision N o 3/80 refers to Annex I to Regulation N o 1408/71 as a whole and in an unqualified manner. Deci- 78 — Case C-2/89 (cited in footnote 64 above, at p. I-1755), para- graph 10. sion N o 3/80 thus applies even to Turkish 79 — Case 53/81 Levin [1982] ECR 1035. workers moving within the Community (who

Moreover, by virtue of the case-law of this Court, exceptions to and derogations from the provisions on free movement for workers — including any provisions which restrict the Transposing that principle to the present case, very legislative concept of 'worker', which I would observe that — even if the concept determines the scope of the fundamental of worker for the purposes of the payment of freedom in question — should be interpreted family benefits by the German institutions restrictively. 80 did not include a person in the circumstances of Mrs Sürül or her husband — there are no good grounds for denying that they fall within the personal scope of Decision N o 3/80, at least as regards the branch of social security corresponding to the contingency against which they were insured (invalidity and old age, in one case, and accidents at work, in the 66. If, however, the Court should accept the other). Accordingly, their situation would in German Government's argument and hold any event be covered by the prohibition of that, for the purpose of granting the allow- any discrimination — whether overt or covert ance and supplementary allowance for depen- — based on nationality, laid down in Article dent children under the BKGG, Mrs Sürül is 3(1) of Decision N o 3/80. That provision — not one of the persons to whom Decision N o to which the interpretation of Article 48(2) of 3/80 applies, that reasoning could not in any the Treaty (see point 47 above) extends and event — in my opinion — mean that the which also (as already observed: see points 38 plaintiff does not have a legitimate and well- to 45) has direct effect — precludes national founded claim. The dicta of this Court in legislation which makes entitlement to a family Stöber and Piosa Pereira and Merino Garcia benefit such as the dependent child allowance should be borne in mind: Articles 48(2) and provided for by the BKGG, dependent upon 52 of the Treaty are to be interpreted as pre- possession of a residence authority allowing cluding the application of national legislation the holder to reside on an enduring basis on national territory, like the Aufenthaltsberech- tigung or the Aufenthaltserlaubnis provided 80 — See, among many, Case 139/85 Kempf [1986] ECR 1741. for by the German law on aliens.

(iv) Limitation in time of the effects of the as being validly in force and took due effect judgment to be given in the past: and that would have extremely destructive retroactive effects on the national social security systems. Although specific evi- dence has not been produced to the Court to demonstrate that risk of serious economic repercussions, the risk is in my opinion real and genuine. 82 67. Finally, brief comments are needed on the argument advanced by the French, United Kingdom and Netherlands Governments that the Court — should it adopt the solution proposed by me — should limit the effects in time of its ruling, in keeping with a general principle of legal certainty inherent in the Community order (see point 29 above). It should be borne in mind that this Court, when providing interpretations under Article 177 of the Treaty, may only exceptionally and Moreover, I myself recognise, first, that, until in clearly defined circumstances — in the the date of the Court's judgment in Taflan- actual judgment giving the requested inter- Met, there was objective and significant uncer- pretation — restrict for any person concerned tainty, for the reasons fully discussed in my the opportunity of relying upon the provi- Opinion in that case, 83 as to whether or not sions thus interpreted with a view to calling Decision N o 3/80 had entered into force. in question legal relationships established in Although determining that Decision N o 3/80 good faith. As the Court has held, although took effect on 19 September 1980, the date of the practical consequences of any judicial deci- its adoption, the judgment in Taflan-Met sion must be weighed carefully, the Court raised no less serious and objective uncertain- cannot go so far as to diminish the objectivity ties regarding a further point: whether that of the law and compromise its future applica- decision — and therefore the principle of tion on the ground of the possible repercus- non-discrimination embodied in Article 3(1) sions which might result, as regards the past. 81 — could be relied on in the absence of imple- menting measures adopted by the Council. That continuing state of uncertainty — which in turn has had repercussions on the legiti- macy of the relevant legislation of the Member States and the precise extent of the category of Turkish citizens entitled to family benefits The Member States mentioned above have paid by a national social security institution voiced concern that a judgment in line with the present Opinion would call in question an enormous number of legal relationships 82 — See Case C-308/93 (cited above in footnote 35, paragraph established in good faith on the basis of the 47), in which the Court decided to limit the temporal effect of its judgment, agreeing to the request to that effect made national legislation which has been regarded by the governments of the intervening Member States, even though they were not in a position to give even an approxi- mate assessment of the economic consequences which the judgment would have for the funding of national social security systems. 81 — See Case C-163/90 (cited in footnote 57 above), paragraph 83 — See footnotes 37 and 38 above and the corresponding parts 30. of the main text.

Pursuant to Articles 3(1) and 4(1 )(h) of Decision N o 3/80, a Turkish national who is one of the persons to whom that decision applies by virtue of Article 2 thereof, who resides in a Member State and holds a residence authorisation granted for a specific purpose and for a limited period (such as the Aufenthalts- bewilligung provided for by the German Law on aliens), is entitled to receive from the competent social security authorities a family benefit such as the dependent child allowance provided for by German law. That entitlement — which individuals may enforce before national courts in the event of its being withheld — arises where the requirements laid down for citizens of the com- petent Member State are satisfied and it cannot be made conditional upon

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possession of a specific residence authority of a kind which allows its holder to reside on an enduring basis on national territory, such as the Aufenthalts- berechtigung or the Aufenthaltserlaubnis provided for by German law.

(2) By virtue of Article 2 in conjunction with Article l(b)(i) of Decision N o 3/80, a Turkish citizen residing in the territory of a Member State has the status of 'worker' throughout the period during which, under national legislation, the legally prescribed contributions to compulsory invalidity and old-age insur- ance are deemed to be paid for his benefit whilst a child is receiving education.

(3) By virtue of Article 2 in conjunction with Article l(b)(i) of Decision N o 3/80, a Turkish citizen residing in the territory of a Member State who, in addition to his university studies, works there as an employed person for a maximum of 16 hours a week on the basis of a work permit for casual work and is cov- ered by compulsory insurance against accidents at work, has the status of 'worker'.