C-102/98

KOCAK AND ÖRS

OPINION OF ADVOCATE GENERAL RUIZ-JARABO C O L O M E R delivered on 7 October 1999 *

1. Given that the Court of Justice has I — The facts in Case C-102/98 Kocack already acknowledged the direct effect of the principle of equality of treatment 1 under Article 3(1) of Decision 3/80 of the Association Council 2 (hereinafter 'Deci- 2. The plaintiff in the main proceedings, sion 3/80') created by the Association Mr Kocak, is a Turkish national who, Agreement between the Community and between 1956 and 1962, worked in Turkey Turkey 3 (hereinafter 'the Association and was registered with the social security Agreement'), the question arises as to scheme in that country. Between April 1962 whether that principle precludes a Member and December 1966 he worked in the State from limiting a person's right to mining industry in Germany. He has been rectify the date of birth he gave when he permanently resident in that Member State joined its social security scheme, when such since May 1970 and, until 1 October 1986, rectification affects his entitlement to ben- when he took early retirement, he was efits, to cases in which there has been a employed as a production worker. Since clerical error and to cases in which docu- October 1991, when his early retirement ments issued before the date of birth was payment ran out, he has been receiving given are submitted, without taking social assistance. account of the circumstances in which births are registered in Turkey.

II — The question referred for a prelimin- ary ruling in case C-102/98 Kocak 5. Mr Kocak's objections against those decisions were dismissed because the judg- ment of the Turkish court was based solely on a medical opinion and the statement of 7. The Thirteenth Senate of the Bundesso- one witness. In the circumstances, the zialgericht, which has to give judgment on regional insurance office considered that it the appeal on a point of law ('Revision') had not been proved that Mr Kocak was has considered it necessary to refer the born in 1926 instead of 1933, which was following question to the Court of Justice the year he gave when he joined the for a preliminary ruling: German pension insurance scheme.

which the applicable date of birth for use in 9. According to the judgment, of which the insurance number allocated to the Mr Örs lodged a translation, the public insured person and for the grant of old- hospital in Balikesir informed the court that age pension is in principle, in the case of the plaintiff was between 45 and 46 years Turkish migrant workers also — without of age. Furthermore, the witnesses for the regard to particular characteristics of the plaintiff stated under oath that they knew Turkish register of civil status — the date of him well because they had lived in the same birth which results from the first informa- village; his parents had lived together for tion given by the insured person to the years before they married; in the village social security institution of the Member everybody lived together and had children State in question or to the employer in that before marrying and Mr Örs was already State (in so far as he is under a duty to four or five years of age when his parents notify the social security institution)?' married. One of the witnesses said that his own daughter Havva was also born in 1946 but was entered in the register of civil status as born in 1948. In his submissions the Public Prosecutor supported the view that the plaintiff had proved his claims. The Regional Court therefore granted his appli- III— The facts in Case C-211/98 Örs cation for rectification of his date of birth.

8. Mr Örs was born in Turkey and has lived in Germany since 1972. He is a member of the pension insurance scheme of the Bundesknappschaft (Federal Insur- ance Fund for Miners), the defendant social security institution. When he joined the 10. In decisions of 14 June 1993 and scheme in Germany he gave his date of 14 September 1993, the defendant rejected birth as 1 May 1950. On the basis of that Mr Örs' application for amendment of his information he was assigned insurance date of birth and insurance number. number 80 010550 O 016.

Westfalen (Higher Social Court, North 2. If Question 1 is answered in the Rhine-Westphalia) dismissed the appeal, affirmative, is that prohibition to be stating that the insurance number was used interpreted as precluding a national only to classify a person's details for the provision under which the applicable purposes of acknowledging his entitlement date of birth for statutory pension to social benefits and that, therefore, the insurance benefits and for the insur- social security institution was not bound to ance number assigned in that regard is alter the date of birth contained in the the date which was documented when insurance number on the basis of the the Turkish worker was first registered judgment of the Turkish court. With regard with a national social benefit institu- to the need to correct the actual date of tion?' birth contained in the number, it applied the case-law of the Bundessozialgericht which had held, in those very circum- stances, that the true date of birth is the date entered in the register of civil status when the insurance number is assigned.

V — The national legislation

IV — The question referred for a prelimin- ary ruling in case C-211/98 Örs 12. Men are entitled to receive an old-age pension when they are 65 and women when they are 60, provided they have paid contributions for 60 months. At the begin- ning of a person's working life, his 11. The Eighth Senate of the Bundessozial- employer must send his personal details to gericht, which has to give judgment in the the health insurance institution and then appeal on a point of law (Revision) has the old-age pension institution assigns him considered it necessary to refer the follow- an insurance number, of which his date of ing questions to the Court of Justice for a birth forms an integral part. preliminary ruling:

'1. If rights or obligations are dependent 15. These rules were adopted to prevent on whether a specific age-limit is improper social benefit claims in cases reached or not exceeded, the applicable where earlier payment could be applied date of birth is the date which results for on the basis of an altered date of birth. from the first information given by the When they were drafted it was borne in person entitled to those rights or sub- mind that various foreign legal systems ject to those obligations, or by his make provision for dates of birth to be relations, to a social security institution altered by a decision of a court, that such or, in so far as information within the alterations can result in advantages under context of the third or sixth chapters of German social law and that, in the relevant the Fourth Book is concerned, to his foreign legal systems, alteration of date of employer. birth does not affect entitlement to social benefits.

2. An applicable date of birth under paragraph 1 may be departed from only if the competent benefit institu- tion determines: The new rules are intended to ensure that an alteration of date of birth obtained in these circumstances cannot be taken into consideration under German social law (a) that a clerical error has been made; either. or

(b) that a different date of birth results from a document whose original was made out before the informa- It was not considered necessary to intro- tion was given under paragraph 1. duce a specific transitional provision.

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VII — The proceedings for a preliminary 22. At the hearing Landesversicherungsan- ruling stalt Oberfranken und Mittelfranken stated that, initially, there were only isolated applications for dates of birth to be recti- fied in order to extend the length of time social benefits were received or to bring forward the date on which they should start 20. Mr Örs, the French and German Gov- to be paid. However, since the late eighties, ernments and the Commission submitted they have become a much more common written observations within the period phenomenon, to the extent that, in 1998, prescribed for that purpose by Article 20 the German social security institutions of the EC Statute of the Court of Justice. received about 5 000 such applications from Turkish nationals. If altering those dates of birth meant that the amount of social benefit paid out was affected, the cost incurred would be both extremely high and unexpected, and might upset the financial equilibrium of the system. It added that if transitory measures had been At the hearing on 7 September 1999 a adopted — as the Commission recom- representative of the Landesversicherung- mends — it would have been years before sanstalt Oberfranken und Mittelfranken, the new legislation was applicable and it which is the institution whose decision is would not have been able to achieve its being challenged by Mr Kocak, the Agent objective. of the German Government and the Agent of the Commission submitted their oral observations.

It contends that the provision contained of Paragraph 33a of the SGB I applies both to Turkish nationals and to German nationals born in a third State and cites, by way of It concludes by pointing out that eviden- example, the some 2 800 000 repatriates in tiary documents issued before the date on Germany, most of whom came from the which the claimant joined the scheme are former Soviet Union. accepted, and these may be documents from the registry of civil status or any other documents which make it possible to establish date of birth such as, for example, documents issued in connection with edu- cation and military service. It adds that the provision which limits the opportunity of altering entitlement to social benefits on the basis of the rectification of the date of birth was adopted because it 24. The French Government contends that was necessary, fair and justified by objec- the same evidential value cannot be given tive considerations. In fact, it had been to entries in the civil registers of non- observed that insured persons frequently member countries as to those of Member applied for extensions of their entitlement States. It maintains that a Member State to benefits such as, for example, orphan's may hold that the evidence accompanying pension or family allowance, or for early an application for alteration of a date of payment of the old-age pension, by reason birth is insufficient or false by reference, in of an amendment a posteriori to their date particular, to the ease with which courts in of birth. To investigate each case was long some countries give judgments relating to and expensive, because the social security the rectification or supplementing of parti- institutions in the applicant's native coun- culars contained in the register of civil try had to carry out exhaustive inquiries. status, with the sole aim of circumventing Moreover, the mechanism currently in the law of the Member States relating to force for acknowledging a change of date nationality, right of residence and entitle- of birth makes it possible to compensate, to ment to receive social benefits or an old-age a large extent, for the frauds practised in pension.

With regard to the fact that, in Turkey, the date of birth which is taken into account for the purposes of invalidity and old-age To explain why it takes this view, it says pensions and death benefits is the one that German law imposes on certain per- appearing in the civil register at the time sons the duty, subject to a fine, of notifying of affiliation to the social security scheme, a birth at the register office within a week, the Commission points out that this was and that the date which is entered can be not the rule in Germany before 1998 and amended only by court order in non- that a Turkish worker had no reason to contentious proceedings in which the court, think that the German authorities were of its own motion, orders the necessary going to pass a law to introduce that checks to be made and grants correction principle into its social security system, only if it is certain that the entry is with retroactive effect and without transi- incorrect. On the other hand, in Turkey, tional provisions. It adds that, in cases such the time-limit for registering a birth is one as those of Mr Kocak and Mr Örs, in month and this does not seem to be which correction of their dates of birth observed in all cases, especially in rural was based solely on a medical opinion, it is areas. Correction of the entry is granted not surprising that reliability of the judg- only once and pursuant to a judicial ment of the Turkish court should be called decision, given in proceedings considered into question. Therefore the burden of extremely lenient and generous, in which proving in the German courts that the there is no thorough investigation of the new date of birth is correct rests on the facts on the initiative of the court. applicant, who will have to submit more convincing evidence.

26. In order to answer the questions refer- red for a preliminary ruling by the Eighth and Thirteenth Senates of the Bundesso- 28. Article 9 of the Association Agreement, zialgericht, which I shall consider together, which prohibits discrimination on grounds I shall first examine whether the prohibi- of nationality within its scope of applica- tion on discrimination on grounds of tion, is a general provision which, as in the nationality, which is included in the law case of Article 6 of the EC Treaty (now, governing the association between Turkey after amendment, Article 12 EC) is inten- and the Community, is directly applicable ded to be applied separately only in situa- to Turkish workers. If the answer is in the tions for which the Agreement and its affirmative, I shall consider whether they implementing measures do not lay down may invoke it in a Member State in order to specific rules against discrimination. avoid application against them of a social security provision which allows rectifica- tion of the date of birth given by the worker when he joined the social security scheme in that State only if it is shown that there has been a clerical error or if the applicant 29. In the context of the freedom of move- submits a document issued before he joined ment of workers between the Member the scheme and showing a different date of States and Turkey, the principle of non- birth. Finally, I shall consider the temporal discrimination has been applied and application of the principle of equality of defined by Article 37 of the Additional treatment in the main proceedings. Protocol to the Association Agreement.

ity schemes of the Member States to 33. As I pointed out at the beginning of this Turkish workers and the members of their Opinion, part of the problem raised by the families, which develops Article 39 of the two cases I am considering was resolved by Additional Protocol, lays down the princi- the judgment in Sürül 9, when the Court of ple that any person resident in a Member Justice stated that Article 3(1) of Decision State to whom the Decision applies must N o 3/80 establishes, in the area in which receive the same treatment as the Member that Decision applies, a precise and uncon- State accords its own nationals. ditional principle such as is capable of being applied by a national court and, therefore, of governing the legal situation of individuals. The Court added that the direct effect attributed to that provision means that the persons to whom it applies By virtue of Article 2 of Decision N o 3/80, are entitled to rely on it before the courts of that decision is applicable to the two the Member States. 10 plaintiffs in the main proceedings, because they are both Turkish workers who are subject to the legislation of a Member State.

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the same treatment as the Member States Mrs Dafeki was a Greek national who had confer on their own nationals — has direct been living since 1966 in Germany, where effect. she had been in paid employment until 1987. Her identity papers snowed her date of birth as 3 December 1933.

B. Concerning equality of treatment for Turkish workers in the field of social On 4 April 1986, at Mrs Dafeki's request, security and the possibility of correcting the Court in Trikala, Greece, rectified that dates of birth with subsequent effect on date in accordance with the special proce- entitlement to social benefits. dure applied when civil status archives had been destroyed during the war. Mrs Dafe- ki's date of birth was consequently estab- lished as 20 February 1929. She was then issued with a birth certificate recording her 35. This is not the first time that a national amended date of birth. court has asked the Court of Justice whether, in proceedings for determining a migrant workers entitlement to social ben- efits, the social security institutions and courts of a Member State are under a duty to recognise certificates and analogous documents relative to personal status which 37. In December 1988 Mrs Dafeki applied have been issued by the competent autho- in Germany for the early retirement pen- rities of other States. sion provided for women who have reached the age of 60. Although she fulfilled the other requirements for entitlement to an early pension, her application was rejected. Basing its decision on the documents drawn up before Mrs Dafekis date of birth had The Court ruled on this matter in its been rectified, the competent German insti- judgment in Dafeki, 11 in reply to a ques- tution decided that she had not reached the tion referred for a preliminary ruling by the age required for pension entitlement at the Sozialgericht Hamburg, Germany. time when her application was made.

same presumption of accuracy as German that exist between the national legal orders certificates, and therefore the court seised as regards the conditions and procedures of the matter must proceed to an evaluation for rectification of a date of birth, and also of the documents before it in accordance of the fact that the Member States had with the rule of free assessment of evidence. neither harmonised the matter nor estab- In so doing, the court must take account in lished a system of mutual recognition of particular of a rule of case-law which such decisions, as had been done for establishes a presumption that, in the event judgments falling within the scope of the of inconsistency between several docu- Convention of 27 September 1968 on Jur- ments of differing dates, the document isdiction and the Enforcement of Judg- which prevailed was generally, in the ments in Civil and Commercial Matters. 12 absence of other sufficient evidence, the The Court also acknowledged that the one closest in time to the event. Hence, in possibility of successfully challenging the Mrs Dafeki's case, the document which accuracy of a certificate of social status prevailed was the first extract from the depended, to a large extent, on the proce- register of births. As the application of the dure followed and on the conditions which provision by a court meant that the proba- had to be satisfied in order for such a birth tive value accorded by the German courts certificate to be altered. These could vary to certificates of civil status issued in considerably from one Member State to another Member State was lower than that another. accorded to certificates drawn up by the German authorities, the court hearing this case questioned whether the provision was compatible with Community law, in parti- cular with Article 48 of the EC Treaty (now, after amendment, Article 39 EC) and That is why it expressly stated, in para- with Article 51 of the EC Treaty (now, after graph 18: '[...] The administrative and amendment, Article 42 EC), as amounting judicial authorities of a Member State are to indirect discrimination on grounds of not required under Community law to treat nationality. Indeed, although the provision as equivalent subsequent rectifications of applied irrespective of the nationality of the certificates of civil status made by the worker, in practice it operated to the competent authorities of their own State detriment of workers who were nationals and those made by the competent autho- of other Member States. rities of another Member State.'

— from the following paragraph, the Court began to reason in terms of the documenta- The Commission pointed out that ques- tion needed for ensuring exercise of one of tions relating to civil status differed from the freedoms conferred by the Treaty, one Member State to another since the because it states: 'Nevertheless, exercise of respective systems had been strongly influ- the rights arising from freedom of move- enced by an extremely wide variety of ment for workers is not possible without cultural phenomena and specific events, production of documents relative to perso- such as wars and transfers of territory. It nal status, which are generally issued by the considered, therefore, that it was difficult worker's State of origin. It follows that the to start from the premise that the factual administrative and judicial authorities of a and legal situations were identical or Member State must accept certificates and equivalent. It added that the Community analogous documents relative to personal had no general competence to lay down status issued by the competent authorities rules concerning the law applicable to civil of the other Member States, unless their status or matters related to the probative accuracy is seriously undermined by con- value of documents relative to civil status. crete evidence relating to the individual case in question.'

41. However, at paragraph 19 of its judg- In the light of that statement the Court ment, the Court appears to do an about- concluded that '[...] A rule of national law turn. I must admit that I can only manage which establishes a general and abstract

The direct effect of the principle of equality 42. The differences between Mrs Dafeki's of treatment in the field of social security situation and that of Mr Kocak and has been recognised by the Court in Mr Ors are quite obvious. She was a relation to both Article 3(1) of Regulation national of a Member State whereas they No 1408/71 14 and Article 3(1) of Decision are nationals of a third country. The No 3/80. 1 5Consequently, a Member State documents which Mrs Dafeki submitted may not assign a different scope to the as proof of a date of birth different from principle depending on whether the person the one she gave when she joined the social to whom the provision applies is a worker security scheme had been issued by the who is a national of another Member State competent authorities of a Member State or a worker who is a Turkish national. whereas the documents presented by Mr Kocak and Mr Ors came from a third country.

between the documents submitted in sup- basis for establishing the length of entitle- port of an application for rectification of a ment to family benefits or the orphans date of birth for the purposes of acknowl- pension and which determines the date on edgment of entitlement to social benefits. which entitlement to the old-age pension begins. I think it is indicative that legal systems, like the Greek 1 6and Turkish systems, which are apparently quite ready to rectify dates of birth, do not recognise such rectifications in the field of social security rights. 45. I agree with the judgment in Dafeki that, in order to invoke the right to a social security benefit flowing from the exercise of the right of free movement for workers guaranteed by the Treaty, workers must supply proof of certain particulars entered in the registers of civil status. The same applies to Turkish workers who go and Under these more stringent conditions the work in the Member States under the recipient is required to keep the date of Association Agreement and its implement- birth which he or his relatives gave when he ing measures. joined the social security scheme in Ger- many and which is incorporated into his social security number, unless the compe- tent benefit institution determines that there has been a clerical error or that a different date results from a document whose original was made out before the 46. As I have already pointed out, the information was given. provision in dispute, Paragraph 33a of the SGB I, came into force on 1 January 1998 and was adopted to avoid the situation in which a worker arranged for his date of birth to be rectified in order to procure a change in his entitlement to social benefits in Germany. 47. The provision does not differentiate between insured persons on grounds of nationality and therefore does not discri- minate directly.

However, the Senates of the Bundessozial- ties where there was no such limit with gericht which have referred the questions regard to other teachers, 21 or when, to for a preliminary ruling wonder whether recruit staff 22 or to calculate salary scale there may be covert discrimination and the grading and seniority, 23 a Member State Commission says categorically that there is. took into account only periods of employ- ment completed its own public service, or when it made the grant of tideover allow- ances to young people seeking their first employment subject to the requirement of having completed their secondary educa- tion in a teaching establishment of that 48. As we know, the Court of Justice State. 24 defines covert discrimination by reason of nationality as any form of discrimination which, by the application of other criteria of differentiation, leads in fact to the same result. Since 1974 the Court has held that criteria such as place of origin or residence of a worker may, according to circum- In these examples the covert discrimination stances, be tantamount, as regards their lay either in the fact that the conditions practical effect, to discrimination on the imposed by the national law for the grant grounds of nationality, such as is prohibited of an advantage could be fulfilled more by the Treaty. 17 easily by the nationals of that State than by the nationals of the other Member States, or in the fact that the less favourable working conditions introduced by a Mem- ber State ended up applying, in almost every case, to workers from other States in the European Union. By way of example, the Court has held that there was covert discrimination on the grounds of nationality in the area of the free movement of persons when the law of a Member State imposed a residency con- dition on a worker for the granting of 49. The Commission points out that covert social 18 or tax 19 advantages or made the discrimination would result because the granting of those advantage subject to a provision in dispute does not take proper minimum period of occupational activity in account of the differences between the rules the territory of that State, 20 or limited the relating to civil status registration in Ger- duration of contracts of employment of many and Turkey. Turkish nationals would foreign language assistants in its universi- therefore be disadvantaged because Para-

51. The problem arises when a member of the social security scheme in Germany applies for rectification of his own date of In fact, CIEC Convention No 9 of 10 Sep- birth or of that of a beneficiary in order tember 1964 concerning judgments rectify- that such rectification should affect the ing civil status certificates has been ratified entitlement to social benefits.27 I realise by both countries and has been in force in that States will wish to do their utmost to Turkey since 24 August 1967 and in Ger- many since 25 July 1969. 25 26 — Both Germany and Turkey have ratified Convention No 3 concerning the international exchange of information relating to civil status, of 4 September 1958. It has been in force in Germany since 24 December 1961 and in Turkey since 8 October 1962. 27 — Guyon-Renard, Isabelle, 'La fraude en matière d'état civil dans les États membres de la CIEC', Revue critique de droit international privé, 85 (3) July-September 1996, pp.541 et seq., especially p. 542; the author points out that the replies of the States which are party to the CIEC to questionnaires prepared by a subcommittee made up of one representative from each State have revealed that eight Furthermore, it cannot be inferred from the of those States, amongst them both Germany and Turkey, documents in these two cases that Germany acknowledge that fraud is committed in relation to birth certificates and that the false statements refer in particular to date of birth and identity. She adds that fraud is rarely attributable to the officials at the civil registry of a State which is party to the CIEC, because only Greece men- 25 — Liste des Conventions, état des signatures, des ratifications tioned the extreme case of a mayor who had issued his own et des adhésions au 30 November 1998, provided by the death certificate in an attempt to evade criminal proceed- Secrétariat général of the CIEC. ings.

28 — Ibidem, p. 546. If a legal decision rectifying a date of birth and pronounced abroad is to be recognised in the Nether- lands and Austria, it must have been given by a competent court, after a case has been prepared, and not be contrary to law and order. The Netherlands also requires the decision to be based on hard evidence, such as an opinion 56. The Commission adds that, in rural drawn up by a medical department appointed for the purpose. The public prosecutor and/or the director of the areas in Turkey, the duty to register a birth civil registry must be given the opportunity to be heard, and the claimant, who bears the burden of proof, must within a month is not always fulfilled. 29 have appeared before the court which gives the decision. Even so, the authorities are not compelled to recognise a legal decision which contradicts other known facts, such as facts relating to the members of the claimants family. It is 29 — That cannot mean, in my opinion, that a child who is not stated whether, in the Netherlands, recognition of already seven years old can be registered as a newborn rectification affects entitlement to social benefits. baby.

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time. The cases most often concern babies born out of wedlock 30 and on the so-called fringes of society. 31 These are familiar phenomena in all States. 58. In view of what I have said so far, I have to conclude that the principle of equality of treatment in the field of social security which is applicable to Turkish workers in Germany does not prevent that Member State from establishing that a 57. In my view, a person who, up to a worker's date of birth, for the purposes of certain point in his life, has believed that his entitlement to social benefits, is the one he details as entered in the civil register are gave when he joined the social security correct, will be uncertain about his true age scheme, or from restricting the opportunity if he discovers facts that he did not know, of rectifying that date to clerical errors and but above all if he finds documents which cases in which the claimant submits a relate to him and contain details which document whose original was made out contradict the ones in the register. 32 That before he joined the social security scheme can happen to anybody, irrespective of and which mentions a different date of nationality.The decisive factor for preclud- birth. ing the discriminatory nature of a provision like the one in dispute in the two main proceedings is that, as well as imposing uniform conditions for obtaining rectifica- tion of a date of birth, it does not put In any event, the principle does not require the State to organise its rules for joining the 30 — Luces Gil, Derecho Registral Civil, Bosch 1991, cited by social security system to take account of Linacero de la Fuente, M., 'Notas sobre el Registro civil', Revista de Derecho Privado, February 1998, p. 83 et seq., future rectifications to the dates of birth of especially p. 96. the Turkish workers supposedly due to the 31 — Linacero de la Fuente, M, op. cit. footnote 30, p. 102. 32 — We should not forget that the civil registry is the instrument which serves to record the facts and features which affect a person's civil status and that its certificates constitute ordinary proof of the features of civil status. 33 — People who have married in Turkey have an additional Even so, these registry certificates are not free from error in document which may serve for this purpose, which is the

On the other entries, covered the period from 30 M a y 1970 to hand, people w h o have married in Germany do not have 17 March 1972 (DGRN R 24 March 1986; RJA, 1986, this document, because that State has not yet signed the 3025). Convention.

By contrast, in the case of Mr Örs — who, in 1972 when he joined the social security system, said that he was born in 1950, and 62. Finally, we must bear in mind that the in 1993 submitted a judgment from a Court of Justice, in its judgment in Sürül, 34 Turkish court altering the year of his birth not only acknowledged the direct effect of to 1946 — the German social security Article 3(1) of Decision No 3/80 but also institution refused to recognise the judg- imposed temporal limits on its effect, ment. pointing out that the provision may not be relied upon in support of claims relating ' to benefits in respect of periods prior to the date of the judgment (4 May 1999) except 60. As Paragraph 33a of the SGB I was not as regards those persons who, before that in force when the two workers applied for date, initiated proceedings or made an rectification of their dates of birth, it is equivalent claim. clear that it cannot apply to them and that, as the Court of Justice has recognised the direct effect of Article 3(1) of Decision 34 — Cited in footnote 1, paragraph 113.

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IX — Conclusion

63. In view of the foregoing considerations, I propose that the Court of Justice reply as follows to the questions referred by the Thirteenth and Eighth Senates of the Bundessozialgericht for a preliminary ruling in cases Kocak and Örs respectively:

(1) Article 3(1) of Decision No 3/80 of the Council of Association of 19 Sep- tember 1980 concerning the application of the social security schemes of the Member States to Turkish workers and the members of their families, which establishes the principle of non-discrimination on grounds of nationality, has direct effect and its temporal effects are those stated by the Court of justice in its judgment of 4 May 1999 in Sürül.