C-416/96

OPINION OF MR LÉGER — CASE C-416/96

OPINION OF ADVOCATE GENERAL LÉGER delivered on 19 May 1998 *

1. The Immigration Adjudicator has asked nomic, technical and financial cooperation, the Court to give a preliminary ruling on the and in the trade and social fields.' effect of the first paragraph of Article 40 of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco (hereinafter 'the Agree- ment') signed in Rabat on 27 April 1976 and approved on behalf of the Community by Council Regulation (EEC) N o 2211/78 of 26 4. Such cooperation was to be established in September 1978. 1 the field of economic, technical and financial matters (Title I), trade (Title II) and labour (Title III).

2. The questions referred to the Court have arisen in proceedings relating to the refusal by the competent authorities to extend the residence permit of a Moroccan worker wishing to remain gainfully employed in a 5. The first paragraph of Article 40, which Member State. forms part of Title III, provides that 'the treatment accorded by each Member State to workers of Moroccan nationality employed in its territory shall be free from any dis- crimination based on nationality, as regards Relevant provisions of the Agreement working conditions or remuneration, in rela- tion to its own nationals.'

3. According to Article 1, the object of the Agreement is to '... promote overall coopera- tion between the Contracting Parties with a Facts view to contributing to the economic and social development of Morocco and helping to strengthen relations between the Parties. To this end provisions and measures will be adopted and implemented in the field of eco-

8. The couple separated within a year. It 12. Mr El Yassini appealed to an immigration appears, moreover, that Mr El Yassini's wife adjudicator against that decision, claiming left Britain in order to settle in Canada. How­ essentially that the first paragraph of Article ever, nobody claims that the marriage was 40 of the Agreement had to be interpreted as arranged in order to enable Mr El Yassini to giving a Moroccan worker the right to reside remain in the United Kingdom lawfully. in the host Member State for so long as he continued to be lawfully employed. In sup­ port of his claims he referred to various judg­ ments given by the Court in the context of, first, Article 48 of the EC Treaty and, sec­ ondly, the Agreement establishing an Asso­ 9. Since the grant of leave to remain, Mr El ciation between the European Economic Yassini has been in gainful employment. Community and Turkey (hereinafter 'the EEC-Turkey Agreement') 2 and the Addi­ tional Protocol annexed to the EEC-Turkey Agreement (hereinafter 'the Additional Pro­ tocol'). 3 10. O n 5 March 1992 Mr El Yassini applied for an extension of leave to remain as the spouse of a British national. That application was refused by decision of 18 November 1992, against which he appealed to the competent national authority on 23 November 1992.

13. Since the Immigration Adjudicator was in doubt as to the interpretation to be placed on the term 'working conditions' within the

11. At the same time, Mr El Yassini applied for leave to remain on the basis of the first paragraph of Article 40 of the Agreement. 2 — Signed on 12 September 1963, it entered into force on 1 December 1964, having been approved on behalf of the O n 5 November 1993 that application was Community by Council Decision 64/732/ĽEC of 23 Decem­ ber 1963 (OJ 1973 C 113, p. 1). likewise refused. The reason given by the 3 — Signed on 23 November 1970, it entered into force on 1 Secretary of State for the Plome Department January 1973, having been approved on behalf of the Com­ munity by Council Regulation (EEC) No 2760/72 of for that refusal was that the reference to 19 December 1972 (OJ 1973 C 113, p. 17).

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E D D L I N E EL-YASSINI v SECRETARY O F STATE F O R T H E H O M E DEPARTMENT

10 — Section 19(l)(a)(i) of the Immigration Act, 4 — See, in particular, Case 61/65 Vaassen v Beambtenfonds Mijn- 11 — SI 1984 N o 2041. bedrijf [1966] ECR 261, Casc C-393/92 Almelo and Others v 12 — Procedure Rules, Rule 27. Energiebedrijf ¡Jsselmij [1994] ECR 1-1477 and Casc C-54/96 13 — Ibid., Rule 28(a). Dorsch Consult v Bundesbaugescllschaft Berlin [1997] ECR 1-4961. 14 — Ibid., Rule 26. 5 — Case C-24/92 Corbiau v Administration des Contributions 15 — Ibid., Rule 39(2). [1993] ECR 1-1277. 16 — Sections 19(3) and 20(3) of the Immigration Act. 6 — Sections 12 to 23. 17 — For the factors to be taken into account in order to deter- mine whether a body^ meets the criterion of independence, 7 — Whether for policy reasons or otherwise. sec Dorsch Consult, cited above, paragraph 36. 8 — S. Juss, 'Rule-making and the Immigration Rules — A Retreat from Law?', Statute Lam Review. 1992, vol. 13, pp. 151, 152 18 —• Section 12(a) of the Immigration Act, and 153. 19 — Full-time adjudicators. 9 — In this context 'the law' must be understood as the Immigra- 20 — Part-time adjudicators. tion Act and, more generally, the common law. I. Macdonald 21 — In this connection, sec, in particular, \V, Wade and C. For- and N . Blake, Immigration Law in the United Kingdom, But- syth, Administrative Law, Clarendon Press Oxford, 1994, terworths, 1991, pp. 442 and 443. p. 471 ct scq.

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O P I N I O N O F MR LÉGER — CASE C-416/96

22. The immigration adjudicator must there- its implementation or effects, to the adoption fore be considered to be a court or tribunal of any subsequent measure'. 22 for the purposes of the Court's case-law.

23. As the three questions referred to the '... Articles 40 and 41 which form part of Court for a preliminary ruling cannot be Title III relating to cooperation in the field of separated from one another, I will answer labour ... far from being purely programmatic them together. Those questions are concerned in nature, [establish], in the field of working with the point whether the prohibition of all conditions and remuneration and in that of discrimination based on nationality as regards social security, a principle capable of gov- working conditions or remuneration, within erning the legal situation of individuals.' the meaning of the first paragraph of Article 40 of the Agreement, gives a Moroccan worker the right to reside in the host Member State for so long as he has a job, irrespective of his position vis-à-vis the laws of the host State on the entry and residence of aliens in that State. 26. More specifically, the Immigration Adju- dicator is uncertain whether the effect of the prohibition of discrimination laid down in the first paragraph of Article 40 of the Agree- ment is identical, as regards the right of Moroccan workers to extend their stay, to that accorded by the Court to the same pro- 24. To my knowledge, this is the first time hibition which appears, in particular, first, in that the Court has been asked to rule on the Article 48(2) of the Treaty 24 and in Regula- meaning of the first paragraph of Article 40 tion (EEC) N o 1612/68 of the Council of 15 of the Agreement, a provision which, it seems October 1968 on freedom of movement for to me, undoubtedly satisfies the conditions workers within the Community 2 5 and, laid down by the case-law of the Court in order for it to be given direct effect. The Court has held that 'a provision in an agree- ment concluded by the Community with non- 22 — Case 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719, paragraph 14. member countries must be regarded as being 23 — Case C-18/90 ONEM v Kziber [1991] ECR 1-199, para- graph 22. directly applicable when, regard being had to 24 — See, in particular, Case 48/75 Royer [1976] ECR 497, Case its wording and the purpose and nature of the 157/79 Regina v Pieck [1980] ECR 2171, Case 33/88 Aliui and Coonan v Università degli studi di Venezia [1989] agreement itself, the provision contains a clear ECR 1591 and Spotti, cited above. and precise obligation which is not subject, in 25 — OJ, English Special Edition 1968 (II), p. 475.

27. It is clear from the Court's settled case-law 29. Recently the Court reiterated that '.,. the that the principle of equal treatment in Article rights which the three indents of Article 6(1) 48(2) of the Treaty precludes the application [of Decision N o 1/80] confer on a Turkish of a provision of national law which sets a worker in regard to employment necessarily limit on the duration of an employment rela- imply the existence of a right of residence for tionship between an employer of the host the person concerned, since otherwise the Member State and a worker who is a national right of access to the labour market and the of another Member State when there is, in right to work as an employed person would principle, no such limit for workers who are be deprived of all effect (Sevince, paragraph 29, nationals of the host Member State in ques- Kus, paragraphs 29 and 30, and Bozkurt, para- tion. 27 graph 28)'. 30

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OPINION OF MR LÉGER — CASE C-416/96

Accordingly ... the first indent of Article 6(1) be given to its terms in their context and in of Decision N o 1/80 must be interpreted as the light of its object and purpose.' 33 meaning that a Turkish national who obtained a permit to reside on the territory of a Member State in order to marry there a national of that Member State and has worked there for more than one year for the same employer under a valid work permit is entitled under that provision to renewal of his work permit even if at the time of determination of his 33. A comparison of the three types of leg- application his marriage has been dissolved.' 31 islation at issue — that applicable to Com- munity nationals, that applicable to Turkish nationals and that applicable to Moroccan nationals — reveals the different objectives which they pursue.

31. Like the intervening Member States and the Commission, I do not consider that case-law to be relevant in the context of the first paragraph of Article 40 of the Agree- Objective of the Treaty ment.

32. The Court has consistently held 32 that 34. The right of Community workers to reside 'the fact that the provisions of [an] agreement in the territory of the Union, without limita- and the corresponding Community provi- tion of time, in order to take up gainful sions are identically worded does not mean employment there — in other words, freedom that they must necessarily be interpreted iden- of access to the internal labour market — is tically. An international treaty is to be inter- set out in Article 48 of the Treaty, in par- preted not only on the basis of its wording, ticular in its third paragraph which provides: but also in the light of its objectives. Article 31 of the Vienna Convention of 23 May 1969 on the law of treaties stipulates in this respect that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to

35. In addition, Regulation N o 1612/68, which implements the prohibition of discrimi- nation based on a Community worker's nationality, states in Article 1: 36. Article 48(1) of the Treaty lays down the principle of freedom of movement for Com- munity workers while Article 48(2) and (3) defines that principle. The prohibition of dis- crimination based on nationality between ' 1 . Any national of a Member State, shall, workers of the Member States as regards irrespective of his place of residence, have the employment, remuneration and other condi- right to take up an activity as an employed tions of work and employment is therefore person, and to pursue such activity, within merely an instrument for achieving a specific the territory of another Member State in purpose: the actual implementation of freedom accordance with the provisions laid down by of movement for Community workers.

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O P I N I O N O F MR LÉGER — CASE C-416/96

37. Furthermore, the Court has held that 'the freely to reside in that territory without limi- provisions of the Treaty relating to the free tation of time in order to work there. movement of persons are thus intended to facilitate the pursuit by Community citizens of occupational activities of all kinds throughout the Community, and preclude national legislation which might place Com- munity citizens at a disadvantage when they wish to extend their activities beyond the ter- ritory of a single Member State' 34 and that, Objective of the EEC-Turkey Agreement 'for that purpose, nationals of Member States have in particular the right, which they derive directly from Articles 48 and 52 of the Treaty, to enter and reside in the territory of other Member States in order to pursue an eco- nomic activity there as envisaged by those provisions.' 35

39. In conclusion, the right of Community 41. The first paragraph of Article 38 of the workers to move freely in the territory of the Additional Protocol merely states: 'While Union necessarily entails the right of access freedom of movement for workers between to the internal labour market and the right Member States of the Community and Turkey is being brought about by progressive stages, the Council of Association may review all questions arising in connection with the geo- 34 — Case 143/87 Stanton w IN ASTI [1988] E C R 3877, paragraph 13. graphical and occupational mobility of 35 — Case C-370/90 The Queen v Immigration Appeal Tribunal workers of Turkish nationality, in particular and Singh ex parte Secretary of State for the Home Depart- ment [1992] ECR 1-4265, paragraph 17. the extension of work and residence permits, 36 — See, in particular, Eragltt, cited above, paragraph 14, and in order to facilitate the employment of those Case C-386/95 Eker v Land Baden-Württemberg [1997] ECR 1-2697, paragraph 23. workers in each Member State.'

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EDDLINE EL-YASSINI v SECRETARY OF STATE FOR THE HOME DEPARTMENT

42. In addition, Article 6(1) of Decision them certain rights where they arc duly reg- N o 1/80 provides: istered as belonging to the labour force of a Member State.

'... a Turkish worker duly registered as belonging to the labour force of a Member 44. On the basis of those provisions, the State: Court has held, in particular, that a Turkish worker duly registered as belonging to the labour force of a Member State 37 may have his residence permit extended in order to continue to work in that State. — shall be entitled in that Member State, after one year's legal employment, to the renewal of his permit to work for the same employer, if a job is available;

in securing freedom of movement for workers Morocco and helping to strengthen relations on the basis of Articles 48, 49 and 50 of the between the Parties. Treaty (see paragraphs 14 and 19 of Bozkurt, cited above). The Court accordingly consid- ered it essential to transpose, so far as pos- sible, the principles enshrined in those Treaty articles to Turkish workers who enjoy the rights conferred by Decision N o 1/80 (see Bozkurt, paragraph 20).' 39 50. The Agreement in no way contains rules of the kind laid down by the EEC-Turkey Agreement and by Decision N o 1/80, in par- ticular Article 6(1) thereof. As the Immigra- tion Adjudicator points out, the Agreement does not constitute a stage in securing freedom of movement for Moroccan workers. 42 48. In short, Article 6(1) of Decision N o 1/80 also confers on Turkish workers who satisfy its conditions rights which may be relied upon directly before the courts of the Member States concerned, in particular the right to have their residence permit extended. Fur- thermore, under the third indent of Article 51. N o r does it contain any provision gov- 6(1) of Decision N o 1/80, a Turkish worker erning the personal situation of a Moroccan who has worked for more than four years in worker as regards his right of residence. a Member State enjoys freedom of access to any paid employment of his choice in that Member State. 40

52. Furthermore, Moroccan workers, unlike Community workers and, to a lesser extent, Turkish workers, are not entitled to any pri- Objective of the EEC-Morocco Agreement ority as regards access to the internal labour market.

55. In addition, the Treaty of Amsterdam introduces a significant amendment by inserting in Part Three of the EC Treaty a Title Ilia headed 'Visas, asylum, immigration and other policies related to free movement of persons'. In particular, under Article 73k(3) 56. This means that the personal situation of and (4), the Council is to adopt, within a Moroccan workers is distinct from that of period of five years after the entry into force Community or Turkish workers; it cannot be of the Treaty of Amsterdam: argued that the host Member State discrimi- nates against Moroccan workers contrary to the first paragraph of Article 40 of the Agree- ment by failing, at the end of the period of employment which it has duly authorised, to extend the residence permit which they need in order to be in gainful employment law- '(3) measures on immigration policy within fully. That is why I consider that a Moroccan the following areas: worker is unable to claim that the judgments of the Court on the right of residence of Community workers or on extending the right of residence of Turkish workers, "4 given on the basis of the Treaty and of Decision N o 1/80 respectively, should be applied by analogy.

(a) conditions of entry and residence, and standards on procedures for the issue by Member States of long-term 43 — Treaty of Amsterdam amending ihc Treaty on European visas and residence permits, including Union, the Treaties establishing the European Communities and certain related acts, siimcd at Amsterdam on 2 Octo- those for the purpose of family ber 1997 (OJ 1997 C 340, p. 1). reunion, 44 — See, in particular, Km, paragraphs 29 and 30, and Tolik, para- graph 24, both cited above.

2. With regard to the absence of discrimi- nation as regards redundancy, Arti- 60. First, it would be tantamount to placing cle 64(1) may not be invoked to obtain a serious restriction on the powers of the renewal of a residence permit. The Member States as regards immigration policy. granting, renewal or refusal of a resi- If, in circumstances such as those of this case, dence permit shall be governed by the the Court were to require the host Member legislation of each Member State and the State to permit Moroccan workers to remain bilateral agreements and conventions in on its territory in order to work there beyond the period freely set by that State —• in the

45 — Not published. 46 —• Which essentially repeats the wording of Article 40, cited above. 47 — Emphasis added.

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EDDLINE EL-YASSINI v SECRETARY OF STATE FOR THE HOME DEPARTMENT

65. The restriction of, or derogation from, fundamental principles laid down by Com- munity law, such as the principle of equal 63. In my view, where a Member State has treatment in the first paragraph of Article 40 authorised a Moroccan worker, in accordance of the Agreement, 'must „. be interpreted with its national law, to take up gainful strictly, so that its scope cannot be determined employment in its territory, that principle unilaterally by each Member State without requires it to grant that worker — who satis- being subject to control by the institutions of fies the same conditions as those imposed by the Community.' 52 The Court has held that the legislation of the host Member State for only measures intended to protect the legiti- its own nationals, with the exception of the mate interests of the Member States, such as condition relating to nationality ^8 — the rights and benefits arising from the employ- ment contract and the applicable national 49 — Sec in particular, by analogy, Case 63/76 Inzirillo v Cline d'Allocations Familiales dc l'Arrondissement de Lyon [19761 ECR 2057. 50 — Sec also, by analogy, Kziber, paragraph 28, and Ilallouzi- Cbolio, paragraphs 35, 36 and 37. 48 — Sec in particular, by analogy, Kzibcr, cited above, paragraph 51 — Sec in particular, by analogy, Kin, cited above, paragraph 30. 28, Case C-126/95 Hallouii-Cboho v Bestuur van dc Sodale 52 — By analogy, Case 36/75 Rutili v Minister for ¡be Interior Verzekeringsbank [1996] ECR 1-4807, paragraphs 35 and 36, [1975] ECR 1219, paragraph 27. Sec also, by analogy, Co»l- and Spotti, cited above, paragraph 21. mission v Italy and Spotti, both cited above.

67. I therefore consider that if a host Member 69. In view of those considerations, I propose State took the course of action, criticised at that the Court should rule that the prohibi- the hearing by counsel for Mr El Yassini, tion of discrimination as regards working involving the adoption— in the event of conditions or remuneration laid down by the excessive financial burdens being placed on first paragraph of Article 40 of the Agree- the undertakings concerned (for example, a ment must be interpreted as not conferring negotiated pay increase) — of adverse mea- on Moroccan workers the right to obtain an sures essentially affecting Moroccan workers, extension of their right of residence even if such as the withdrawal of all the residence they are actually employed. In order for the permits granted to Moroccan workers, that prohibition of discrimination laid down by the first paragraph of Article 40 of the Agree- ment to apply, the requirements of national 53 — See in particular, by analogy, Case C-292/89 The Queen v law on the entry and residence of aliens must Immigration Appeal Tribunal ex parte Antonissen [1991] ECR 1-745 and Kus, cited above, paragraph 34. first be observed.

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Conclusion

70. For those reasons I suggest the following answer be given to the Immigration Adjudicator:

The prohibition of discrimination based on nationality as regards working condi- tions or remuneration between Moroccan workers and national workers, laid down by the first paragraph of Article 40 of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco signed in Rabat on 27 April 1976 and approved on behalf of the Community by Council Regulation (EEC) N o 2211/78 of 26 September 1978, must be interpreted as not conferring on Moroccan workers the right to obtain an extension of their right of residence even if they are actually employed.