C-162/00

OPINION OF MR JACOBS — CASE C-162/00

OPINION OF ADVOCATE GENERAL JACOBS delivered on 20 September 2001 1

1. In this case the Bundesarbeitsgericht The relevant legislative provisions (Federal Labour Court), Germany, asks questions about the direct effect, interpre- tation and scope ratione temporis of Article 37(1) of the Europe Agreement establishing an association between the European Communities and their Member The Europe Agreement States, of the one part, and the Republic of Poland, of the other part. 2 3. By Decision No 93/743 3the Council and the Commission approved, on behalf of the Communities, the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part, done in Brussels on 16 December 1991. Pursuant to Article 121, that Agreement entered into force on 1 February 1994. 4

6. In order to realise those objectives, the '— to provide an appropriate framework Agreement lays down a number of detailed for the political dialogue, allowing the provisions concerning, in particular, free development of close political relations movement of goods (Title III), movement between the parties, of workers, establishment and supply of services (Title IV), payments, capital, com- petition and approximation of laws (Title V), economic cooperation (Title VI), cul- tural cooperation (Title VII) and financial cooperation (Title VIII). Moreover, Article 102 establishes an Association Council which is entrusted with the task of supervising the implementation of the — to promote the expansion of trade and Agreement and (under Article 104) of the harmonious economic relations adopting, pursuant to specific provisions between the parties and so to foster in the Agreement, decisions and recom- the dynamic economic development mendations. and prosperity in Poland,

7. In issue in the present case are the provisions of Title IV ('Movement of — to provide a basis for the Community's workers, establishment, supply of services') financial and technical assistance to and, in particular, Chapter I ('Movement of Poland, workers') of that Title.

8. The provisions of Chapter I do not — to provide an appropriate framework confer upon Polish migrant workers a right for Poland's gradual integration into of entry to and stay on the territories of the the Community. To this end, Poland Member States. However, with regard to shall work towards fulfilling the Polish migrant workers legally employed in necessary conditions, the territory of a Member State, Article 37

'For the purpose of Title IV of this Agree- ment, nothing in the Agreement shall pre- — the treatment accorded to workers of vent the Parties from applying their laws Polish nationality, legally employed in and regulations regarding entry and stay, the territory of a Member State shall be work, labour conditions and establishment free from any discrimination based on of natural persons, and supply of services, nationality, as regards working con- provided that, in so doing, they do not ditions, remuneration or dismissal, as apply them in a manner as to nullify or compared to its own nationals, impair the benefits accruing to any Party under the terms of a specific provision of this Agreement. This provision does not 5 — Identically worded provisions are to be found in each of the 10 Europe Agreements signed to date. See Article 38(1) of prejudice the application of Article 53.' the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part, OJ 1994 L 358, p. 3; Article 38(1) of the Europe Agreement establishing an association between the European Commu- nities and their Member States, of the one part, and the Czech Republic, of the other part, OJ 1994 L 360, p. 2; Article 36(1) of the Europe Agreement establishing an association between the European Communities and their 10. Finally, attached to the Agreement are Member States, of the one part, and the Republic of Estonia, of the other part, OJ 1998 L 68, p. 3; Article 37(1) of the Europe Agreement establishing an association between the a number of joint declarations. The second European Communities and their Member States, of the one of those declarations, entitled 'Article 37(1)', part, and the Republic of Hungary, of the other part, OJ 1993 L 347, p. 2; Article 37(1) of the Europe Agreement states: 6 establishing an Association between the European Commu- nities and their Member States, of the one part, and the Republic of Latvia, of the other part, OJ 1998 L 26, p. 3; Article 37(1) of the Europe Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Republic of Lithuania, of the other part, OJ 1998 L 51, p. 3; Article 38(1) of the Europe Agreement establishing an association between the European Economic Communities and their Member States, of the one part, and Romania, of 'It is understood that the concept "con- the other part, OJ 1994 L 357, p. 2; Article 38(1) of the ditions and modalities applicable in each Europe Agreement establishing an association between the European Communities and their Member States, of the one Member State" includes Community rules part, and the Slovak Republic, of the other part, OJ 1994 L 359, p. 2; and Article 38(1) of the Europe Agreement where appropriate.' establishing an association between the European Commu- nities and their Member States, acting within the framework of the European Union, of the one part, and the Republic of Slovenia, of the other part, OJ 1999 L 51, p. 3. 6 — OJ 1993 L 348, p. 179.

13. The HRG has been amended on a number of occasions. At the time of the events giving rise to the dispute in the present case, the relevant provisions were 15. Paragraph 57b(2) provides that, in the to be found in the HRG as amended by case of the workers referred to in Para- Article 1 of the Gesetz über befristete graphs 53 and 54, such grounds exist in Arbeitsverträge mit wissenschaftlichem particular (1) where the activities of an Personal an Hochschulen und Forschung- assistant further his scholarly or artistic seinrichtungen of 14 June 1985 (Law on development or professional training, (2) fixed-term contracts of employment for where he is paid out of funds which are academic staff at universities and research earmarked for activities of limited dur- institutes).8 ation, (3) where he is intended to acquire or temporarily to contribute special knowl- edge or experience, (4) where he is financed 7 —See my Opinion in Case C-272/92 Spoin [1993] ECR I-5185, paragraph 5. mainly from the funds of a third party, or 8 — BGBl. 1985 1, p. 1065. (5) where he is engaged for the first time.

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16. According to Paragraph 57b(3) as in legislature with effect from 24 August force at the material time: 1998. 9 Foreign language assistants are now subject to the general provisions of Article 57b(1) and (2). However, given that the applicant's contract expired before 24 August 1998, the law as amended does not, according to German case-law, apply to her situation. 'An objective ground also exists for the engagement on a fixed-term contract of an instructor performing special duties who is a speaker of a foreign language where the instructor is mainly engaged to teach foreign languages (as a "foreign-language assistant").'

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ing knowledge of Poland's culture. The Considering that the case before it raised a applicant was permitted to provide instruc- point of Community law, the Bundes- tion in linguistics and literature only excep- arbeitsgericht stayed the main proceedings tionally and, in any event, to a limited and referred to the Court of Justice the degree. following questions for a preliminary rul- ing:

21. By an action, which she commenced '1. Does Article 37(1) of the Europe before the Arbeitsgericht (Labour Court) Agreement of 16 December 1991 on 16 January 1996, the applicant sought a establishing an association between declaration that her employment relation- the European Communities and their ship with the defendant would not termin- Member States and the Republic of ate on account of the fact that its duration Poland preclude the application — to was limited to 30 September 1996. Relying Polish nationals — of national law on the judgment of the Court of Justice in according to which posts for foreign- Spotti, 10 which held that such provisions of language assistants may be filled by national law were contrary to Article 48(2) means of employment contracts of of the EEC Treaty, she argued that that limited duration whereas, for other limitation could not be justified under teaching staff performing special Paragraph 57b(3) of the HRG. The defend- duties, recourse to such contracts must ant resisted that claim, contending essen- be individually justified by an objective tially that — until its repeal with effect reason? from 24 August 1998 — Paragraph 57b(3) of the HRG continued to apply to employ- ment contracts with foreign-language assis- tants from countries which are not members of the European Union.

Admissibility 26. In order to answer that question, it is necessary to examine two issues. First, does Article 37(1) have direct effect so that it 24. The Agreement in issue in the present may be invoked by a private person in the case is an international agreement — con- applicant's situation against a public auth- cluded between the Communities and the ority acting in its capacity as an employer Member States and Poland — which is of university teachers? Second, is a national binding, under Article 300(7) EC, upon rule contrary to Article 37(1) where it the Communities and the Member States. provides that language assistants may be According to the Court's case-law, such an employed on fixed-term contracts without agreement forms, from its entry into force, justification by reference in every case to an an integral part of the Community legal objective reason? order and the Court of Justice is therefore competent to rule on its interpretation in the context of the procedure laid down in Article 234 EC.11The questions submitted in the present case are thus admissible.

The direct effect of Article 37(1) of the Agreement

The first question

27. According to the Court's settled case- law, 'a provision in an agreement con- 25. By its first question, the referring court cluded by the Community with non- asks whether Article 37(1) of the Agree- member countries must be regarded as being directly applicable when, having regard to its wording and to the purpose 11 — Case 181/73 Haegeman [1974] ECR 449, paragraphs 5 and nature of the agreement itself, the and 6 of the judgment; Case 12/86 Demirel [1987] ECR 3719, paragraph 7. provision contains a clear and precise

30. As can be seen, the wording of Article 37(1) consists of two distinct phrases. The latter phrase ('the treatment accorded ... shall be free from discrimi- nation ...') lays down in clear, precise and unconditional terms a prohibition against 32. According to the Land Nordrhein- discrimination based on nationality against Westfalen, Article 37(1) of the Agreement migrant Polish workers as regards working conditions, remuneration and dismissal. 13 — Case C-416/96 [1999] ECR I-1209, paragraph 27 of the judgment. 14 — Paragraphs 27, 28 and 32 of the judgment. See also, for the 12 — See, in particular, Demirel, cited in note 11, paragraph 14 direct effect of equal treatment clauses in the context of of the judgment; Case C-262/96 Sümüt [1999] ECU 1-2685, social security, Case C-18/90 Kziber [1991] ECR I-199; paragraph 60; Case C-37/98 Savas [2000] ECU 1-2927, Case C-103/94 Krid [1995] ECR I-719 and, most recently, paragraph 39. Case C-179/98 Mcsbah [1999[ ECR 1-7955.

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34. In my view, however, the defendant's 36. It may be noted, first of all, that neither argument rests on a misunderstanding of Article 37(1), nor any other provision of the Court's case-law on the direct effect of provisions of international agreements. According to that case-law, 15 in order to 16 — I will consider what those conditions might be below, at decide whether a provision is unconditional paragraphs 42 to 45. 17 — See similarly M. Cremona, 'The New Associations: Sub- it must be examined whether the obligation stantive Issues of the Europe Agreements with the Central and Eastern European States', in (ed.) V. Konstadinidis, laid down in that provision requires (is The Legal Regulation of the European Community's conditional upon) the adoption of sub- External Relations after the Completion of the Internal Market, at p. 145; D. Martin, 'Association Agreements', in sequent measures by the parties to the Assoziierungsabkommen der EU mit Drittstaaten (1998), at p. 32. M. Hedemann-Robinson, 'An overview of recent agreement, or whether that obligation is legal developments at Community level in relation to third sufficiently precise and complete to be country nationals resident within the European Union, with particular reference to the case law of the European applied by national courts without the Court of Justice' [2001] Common Market Law Review 525, at pp. 571 to 572. Others have spoken in favour of adoption of such measures. In view of that the direct effect of Article 37(1), albeit without explicitly examining the importance of the phrase '[s]ubject to the case-law, it is not decisive that the wording conditions and modalities applicable in each Member of Article 37(1) refers to 'the conditions State'. See S. Peers, 'Towards Equality: Actual and Poten- tial Rights of Third-Country Nationals in the European Union', [1996] Common Market Law Review 7, at p. 29; L. Nyssen & X. Denoël, 'La situation des ressortissants de pays tiers à la suite de l'arrêt Bosman', Revue du marché unique européen (1996) 119, at pp. 124 to 125. 15 — See note 12 above.

37. When seeking to answer that question, it must be taken into account that the interpretation favoured by the Land Nordrhein-Westfalen — according to which the equal treatment of Polish migrant workers is subject to 'modalities' and 'conditions' of national law linked directly or indirectly to nationality — would enable, in effect, the Member States 39. A comparison of Article 37(1) with to evade the prohibition laid down in other provisions of the Agreement also Article 37(1). It would thus, as the Com- suggests, contrary to what the Land mission and the Bundesarbeitsgericht point Nordrhein-Westfalen asserts, that the pro- out, considerably reduce the effectiveness hibition of discrimination laid down in of Article 37(1) and, perhaps, render it Article 37(1) has direct effect. Some of nugatory. I find it difficult to accept the those provisions are purely programmatic proposition, implicit in the Land in character and depend for their imple- Nordrhein-Westfalens argument, that the mentation upon decisions still to be taken parties to the Agreement intended such an by the Association Council. 18 That, for outcome. In that context, I note that example, is the case with regard to the neither the Member States nor the Council areas of social security for workers under have submitted observations to the Court Articles 38 and 39 and the supply of in the present case seeking to defend that services under Article 55 of the Agreement. proposition, and that the Commission and Those provisions refer explicitly to meas- the French Government are in agreement ures still to be taken by the Association that Article 37(1) is capable of having Council which is given the power to adopt direct effect, although — according to the legally binding provisions in order to realise French Government — the right to equal their objectives. It is questionable whether, treatment with regard to conditions of in the light of the Court's case-law, those employment does not carry with it a right of access to, or stay on, the territories of the Member States. 18 — See paragraph 6 above.

41. It may be added that the fact that the Agreement is intended essentially to pro- 40. The view that Article 37(1) is capable mote the economic development of of directly governing the situation of indi- Poland — with a view to preparing its viduals is, moreover, entirely consistent accession to the Community — and that with the purpose and nature of the Agree- an imbalance may therefore arise between ment. 20 As is apparent from the preamble the obligations assumed by the Community and Article 1(2), 21 that Agreement creates and by Poland does not, according to an association which, by providing a settled case-law, prevent the Court from framework for political dialogue, aims to recognising some of its provisions as having promote trade and harmonious economic direct effect. 23 relations between the parties as well as the prosperity of Poland in order to facilitate the accession of Poland to the European Union. It cannot be denied that that aim will be furthered if Polish migrant workers are afforded the possibility of relying directly on the equal treatment provisions laid down in the Agreement before the national courts in the Member States. 42. The question remains, however, what is to be understood by the phrase 'conditions 19 — See Demirel, cited in note 11, paragraphs 19 to 25 of the judgment; Savas, cited in note 12, paragraphs 41 to 45. 20 — See similarly the Opinion of Advocate General Léger, delivered on 8 May 2001, in Case C-268/99 Jany, at 22 — Case C-416/96, cited in note 13. paragraph 48. 23 — See, in particular, Sürül, paragraph 72 of the judgment, 21 — Cited in paragraphs 4 and 5. and Savas, paragraph 53, both cited in note 12.

44. In that context, the reference in Article 37(1) to 'the conditions and modal- ities applicable in each Member State' must, in my view, be understood primarily as a reminder that, since the conditions of access to the labour markets of the Member 43. That question must, in my view, be States remain in principle a matter of answered in the light of the structure of the national law, the right to equal treatment Agreement as a whole. It is, as the French in employment applies only to Polish Government has stressed, clear that a migrant workers who satisfy the procedural distinction is drawn within the Agreement and substantive conditions for entry and between access to employment and treat- stay on the territory laid down by the ment in employment. While the conditions relevant national rules. of access of Polish migrant workers to the labour markets of the Member States are in principle not affected by the Agreement, migrant workers who have been admitted to the territory of a Member State and who are lawfully resident there must be afforded equal treatment as regards working con- ditions, remuneration and dismissal as 45. Moreover that interpretation is in no compared to the nationals of that Member way inconsistent with the joint declaration State. That distinction is apparent from the of the parties to the Agreement which states absence — in Chapter I of Title IV of the that '[i]t is understood that the concept Agreement — of provisions explicitly "conditions and modalities applicable in granting Polish migrant workers the right each Member State" includes Community to enter and reside on the territory of the rules where appropriate'. 25 Member States and from Article 58(1) under which 'nothing in [the] Agreement shall prevent the Parties from applying their laws and regulations regarding entry and stay ... provided that, in so doing, they do not apply them in a manner as to nullify or impair the benefits accruing to any Party 46. I accordingly conclude, in agreement under the terms of a specific provision of with the Commission and the French this Agreement'. Moreover, annexed to the Government, that Article 37(1) of the Agreement is a declaration by the European Agreement has direct effect. A Polish Community which states that 'nothing in the provisions of Chapter I "Movement of workers" shall be construed as impairing 24 — OJ 1993 L 348, p. 183. 25 — See also D. Martin &: E. Guild, Free Movement of Persons any competence of Member States as to the in the European Union (1996) p. 297.

49. First, the Court of Justice has already 51. Third, there is to my mind no doubt had occasion to rule that the duration of that Article 37(1) must be interpreted as employment contracts and, more specifi- cally, the use of fixed-term contracts for university teaching staff falls within the 26 — See Case 33/88 Allué [1989] ECR 1591; Spotti, cited in note 7. concept of 'conditions of work and employ- 27 — Spotti, cited in note 7, paragraph 18 of the judgment.

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submitting observations in this case put on which the Contracting Parties notify forward any such justifications. each other that the procedures referred to in the first paragraph have been com- pleted'. Pursuant to that provision, the Agreement entered into force on 1 February 1994. 33

53. I accordingly conclude that Article 37(1) of the Agreement precludes the application to Polish nationals of a provision of national law according to which posts for foreign-language assistants may be the subject of employment contracts of limited duration whereas, for 56. Apart from Article 121, the Agreement other teaching staff performing special does not contain any transitional provi- duties, recourse to such contracts must be sions. In order to determine the scope individually justified by an objective rea- ratione temporis of Article 37(1), it is son. therefore necessary to interpret the wording of that provision taking into account its objective and the Court's case-law concern- ing temporal application of Community legislation.

The second question

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normally applies to the future effects of application of that provision to the effects situations which have arisen under the law in the future of situations which have arisen as it stood before amendment, 35 unless the under the law as it stood before amend- immediate application of a particular ment. provision would be contrary to the pro- tection of legitimate expectations. 36

60. I am reinforced in that view by the case of Licata. 37 The applicant in that case, a temporary agent of the Economic and Social Committee, challenged a decision 58. The Land Nordrhein-Westfalen argues whereby the Committee cut short the term that the application of legal provisions to for which she had been elected to a Staff an employment contract concluded before Committee following her appointment as a the entry into force of those provisions permanent official. That decision was made must be categorised as a form of retroactive pursuant to rules — concerning the repre- application of the law. Since the Agreement sentativeness of the Staff Committee — does not explicitly provide for such an which had entered into force after the effect, Article 37(1) is inapplicable in the election. 38 The applicant argued, inter alia, circumstances of the case in the main that the application of those rules violated proceedings. the principle that legislation does not have retroactive effect. However, the Court of Justice held that 'as a matter of principle, new rules apply immediately to the future effects of a situation which arose under the old rule. The application of the [rules in issue] to the remainder of Mrs Licata's term of office does not therefore constitute a breach of the principle that measures must 59. I disagree with that analysis. Applying not be retroactive.' 39 a legal provision to a fixed-term employ- ment contract which has not finally ended by the time that provision enters into force does not involve retroactive application of the law; it entails only the immediate

applicable to employment contracts which contrary to the principle of legal certainty. were concluded before, and which were The Court of Justice has consistently held due to expire after, 1 February 1994. That that the principle of legitimate expec- conclusion is supported by the importance tations, which is an aspect of the principle of the aim sought by Article 37(1). The of legal certainty, 'cannot be extended to principle that there shall be no discrimi- the point of generally preventing new rules nation on grounds of nationality is one of from applying to the future effects of the central pillars of the Agreement, as may situations which arose under the earlier be seen from several of its provisions. 40 rules.' 41 That statement applies, in my Indeed, it is difficult to think of any step view, to a provision such as Article 37(1) which would contribute more to the real- of the Agreement which is liable to change, isation of the overall objectives sought by or affect, the scope of rights and obli- the Agreement than the abolition, in all gations of employers and migrant workers fields, of discrimination on grounds of under employment contracts concluded nationality between Community and Polish before its entry into force. nationals. Equal treatment as regards con- ditions of employment is, moreover, of particular importance since it affects directly the lives and welfare of the growing number of individuals who have lawfully moved from Poland into the Community in order to work.

new legislation to the future effects of 66. Finally, it has not been suggested to the situations which arose under the earlier Court in the present case that the Member rules and, second, that an exemption of States retain the power to decide, as one of contracts already signed would have the 'conditions and modalities applicable in robbed the suspension of its practical each Member State', from which point in effect. 43 time the right to equal treatment may be relied upon by Polish migrant workers. In my view, such an argument would in any event have failed. As explained above, the reference to 'conditions and modalities' in Article 37(1) must be understood as a reminder that the right to equal treatment in employment is contingent upon com­ pliance with national rules concerning access and stay. 44 To extend the scope of those words to cover the effect ratione temporis of Article 37(1) would limit the effectiveness of that provision and — contrary to the purpose of Article 121 of the Agreement and considerations of legal certainty — cause different provisions in 65. Second, the application of Article 37(1) the Agreement to enter into force at of the Agreement cannot, in any event, be different points in time. said to violate the defendant's legitimate expectations. It must be remembered, as the Commission points out, that the Agree­ ment was signed by the parties, including the representative of the Federal Republic of Germany, on 16 December 1991; that is approximately 11 months before the Land Nordrhein-Westfalen entered into a fixed- term employment contract with Ms Pokrzeptowicz-Meyer. In my view, public authorities in the Member States, including the German Lander, may be expected to keep abreast of international developments and thus to be aware of obligations which arise under international agreements to which the Community is a party and which, like the Europe Agreements, are of vital political and legal importance for the 67. I accordingly conclude that Article 37(1) Community as a whole. of the Agreement applies to fixed-term employment contracts which were con­ cluded before, and which were due to 43 — Paragraphs 48 ro 50 of the Įiidgment. See also, with regard expire after, the entry into force of that to the immediate application of Community measures to agreement on 1 February 1994. products which are in transit between a State outside the Community and a Member State, Case C-183/95 Affisi) BV |1997| ECR 1-4315, paragraphs 55 to 58 and the order in Case C-51/95 P Um fruit Hellas v Commission |1997| ECR 1-727, paragraph 27. 44 — See paragraphs 43 to 44.

(3) Article 37(1) of the Agreement applies to contracts of limited duration which were concluded before, and which were due to expire after, the entry into force of the Agreement on 1 February 1994.

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