C-171/01

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what are now, after amendment, Articles 39 7. Article 6 of the Agreement sets up a to 41 EC for the purpose of progressively Council of Association (or 'Association securing freedom of movement for workers Council'), to ensure the implementation between them. and progressive development of the Associ- ation. Under Article 22(1), the Association Council has the power to take decisions as provided for in the Agreement, and the Contracting Parties must take the measures necessary to implement those decisions. In accordance with Article 23, it comprises members of the Governments of the Member States, of the Council, of the Commission and of the Turkish Govern- 5. An additional protocol to the Agree- ment. ment 5 lays down conditions, arrangements and timetables for implementing the tran- sitional stage. Articles 36 to 40 thereof cover freedom of movement for workers. Under Article 36 'Freedom of movement for workers between Member States of the Community and Turkey shall be secured by 8. On 19 September 1980, the Association progressive stages in accordance with the Council adopted Decision No 1/80, principles set out in Article 12 of the Article 10(1) of which provides: 'The Agreement of Association.... The Council Member States of the Community shall as of Association shall decide on the rules regards remuneration and other conditions necessary to that end.' of work grant Turkish workers duly regis- tered as belonging to their labour forces treatment involving no discrimination on the basis of nationality between them and Community workers.'

10. Article 12 EC provides: 'Within the become unemployed, reinstatement or re- scope of application of this Treaty... any employment;' and under Article 8(1) 8 such discrimination on grounds of nationality a worker 'shall enjoy equality of treatment shall be prohibited.' Article 39 secures as regards membership of trade unions and freedom of movement for workers within the exercise of rights attaching thereto, the Community, and paragraph 2 thereof including the right to vote and to be eligible provides that such freedom of movement is for the administration or management to entail 'the abolition of any discrimi- posts of a trade union; he may be excluded nation based on nationality between from taking part in the management of workers of the Member States as regards bodies governed by public law and from employment, remuneration and other con- holding an office governed by public law. ditions of work and employment'. 6 How- Furthermore, he shall have the right of ever, under paragraph 4, the provisions of eligibility for workers' representative the article do not apply to 'employment in bodies in the undertaking....' the public service'. Under Article 40, the Council is to issue directives or make regulations setting out the measures required to bring about freedom of move- ment for workers, as defined in Article 39.

The ASTI cases

13. The Court examined the question 15. Subsequently, in Commission v Lux- above all in the light of Article 8(1) of embourg, 13 the Court confirmed that rul- Regulation No 1612/68 which, it con- ing and further held that 'by maintaining in sidered, 'extends beyond the bounds of force legislation which denies workers who trade-union organisations in the strict sense are nationals of other Member Stales and and includes, in particular, the partici- are employed in the Grand Duchy of pation of workers in bodies which, while Luxembourg the right to vote and to stand not being, in law, trade-union organi- as candidates for membership in elections sations, perform similar functions as organised by Luxembourg occupational regards the defence and representation of guilds', Luxembourg had failed to fulfil its workers' interests' 10 and 'precludes obligations under what is now Article 39(2) national legislation refusing foreign EC and under Article 8(1) of Regulation workers the right to vote in elections of No 1612/68. members of an occupational guild to which they are compulsorily affiliated, to which they must pay contributions, which is responsible for defending the interests of affiliated workers and which performs a consultative function in the legislative field'. 11

Austrian legislation in issue

— representing the interests of workers, including unemployed and retired workers, in particular sending repre- sentatives to various bodies and organi- sations,

19. All workers are in principle members of the chambers of workers and must pay contributions thereto. — monitoring conditions of work,

— cooperating with voluntary occupa- tional associations entitled to enter into collective agreements and with bodies representing interests within undertak- 20. The institutions of a chamber of ings workers include a general assembly {'Voll- versammlung'), delegates to which are elected for five years by the workers entitled to vote. All workers who belong to the chamber on the relevant date are entitled to vote, regardless of nationality. and

— advising members on matters of employment and social law and in particular providing legal represen- tation. 21. In order to be elected, however, Para- graph 21 of the AKG lays down certain conditions including a requirement that candidates must be qualified (in all respects except that of age) for election to the Austrian Parliament. That excludes in par- 18. Within their area of competence, ticular all persons who do not possess chambers of workers may also, subject to Austrian nationality.

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'(1) Is Article 10(1) of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Associ- ation to be interpreted as precluding a 24. Gemeinsam obtained two of the total provision of a Member State which of 70 seats, with 1 535 votes out of a total excludes Turkish workers from eligibility of 45 444 validly cast. It then contested the to the general assembly of a chamber of validity of the elections before the compet- workers? ent Federal minister, who rejected the complaint, essentially on the ground that, although the requirement of Austrian nationality was indeed unlawful in the light of the directly applicable prohibition of discrimination in Article 10(1) of Decision No 1/80, the deletion of the Turkish nationals' names could not have influenced (2) If the answer to Question 1 is affirm- the result of the election, since voting was ative: Is Article 10(1) of Decision No 1/80 for a list and not for individual candidates. of the Association Council of 19 September

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1980 on the development of the Associ- pean Union and other EEA citizens, but the ation directly applicable Community law?' ruling in this case may help to settle the areas of dispute in those proceedings.

27. Written observations have been sub- mitted to the Court by Gemeinsam, the Vorarlberg Chamber of Workers, the Aus- trian Government and the Commission, all Assessment of whom, with the exception of the Aus- trian Government, made oral submissions at the hearing on 24 October 2002.

The first question

as the national court suggests and the further stage in securing freedom of move- Austrian Government argues, such a right ment for workers on the basis of Articles might not fall within the definition of [39 to 41 EC]... [16] 'conditions of work' for the purposes of the provision in issue. Second, as is argued by the Vorarlberg Chamber of Workers, even if the right does fall within that definition, it might none the less be excluded from the prohibition of discrimi- nation on the ground that those elected participate in the exercise of powers con- ferred by public law. The Court has consistently inferred from the wording of Article 12 of the Associ- ation Agreement and Article 36 of the Additional Protocol, as well as from the objective of Decision No 1/80, that the principles enshrined in Articles [39 to 41 EC] must be extended, so far as possible, to (a) Is the right of eligibility to the general Turkish nationals who enjoy the rights assembly of a chamber of workers a conferred by Decision No 1/80... | 17 ] 'condition of work'?

34. In the field of freedom of movement for workers the Court has interpreted the EEC-Turkey Agreement, the Additional Protocol and the decisions of the Associ- ation Council in the light of Articles 39 to It follows that, when determining the scope 41 EC — as is clearly correct, having regard of the public policy exception provided for to Article 12 of the Agreement. by Article 14(1) of Decision No 1/80, reference should be made to the interpre- tation given to that exception in the field of freedom of movement for workers who are nationals of a Member State of the Com- munity. Such an approach is all the more 35. Most recently, for example, in Nazli, 14 justified because Article 14(1) is formulated it stated: in almost identical terms to [Article 39(3) EC].' 18

38. Within the sphere of the Treaty, it is clear from ASTI and Commission v Lux- embourg that Austrian law may not exclude Community nationals from eligi- 41. I none the less disagree with that view. bility to the general assembly of a chamber of workers.

42. It seems clear to me that the right to 39. Only one argument would appear participate in employee representation is capable of militating against the appli- inherently a 'condition of work' of the kind cation of that principle to Turkish workers contemplated in the Treaty, Regulation who are already part of the workforce of ã No 1612/68, the EEC-Turkey Agreement Member State and who may thus not be and its additional protocol, and Decision discriminated against as regards conditions No 1/80. of work.

40. Article 8(1) of Regulation No 1612/68, on which the Court particularly relied in 43. The concept of working conditions, those cases, is more explicit than which appears in a variety of Community Article 39(2) EC. It is also more explicit instruments in the context of a prohibition than Article 7(1) of Regulation No 1612/68, of discrimination, has, as the national whose wording is more comparable to that court, the Austrian Government and the

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Commission have all pointed out, been 45. To put it in other terms, where all given a broad definition by the Court in, workers are subject to the same material for example, Meyers, 19 which concerned working conditions and where a body discrimination on grounds of sex with exists which may exert some influence over regard to entitlement to family credit. The those conditions, it cannot be said that Court refused to confine the concept solely there is no discrimination, as regards con­ to working conditions set out in the ditions of work, between one group which contract of employment or applied by the is entitled to stand for membership of thai- employer, which, it said, would remove body as well as to vote for candidates and situations directly covered by an employ­ another group which is entitled only to ment relationship from the scope of the vote. prohibition of discrimination in issue. 20

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48. In addition, however, it clarities the 50. First in that connection, chambers of limitation on that scope which flows from workers are in its submission autonomous, Article 39(4) EC — under which Article 39 non-territorial, representative authorities does not apply to employment in the public governed by public law and subject to service — by providing that non-nationals constitutional requirements of democracy, may be excluded from 'taking part in the with quasi-legislative and decision-making management of bodies governed by public powers involving the exercise of powers law and from holding an office governed by conferred by public law. Participation in public law'. Both aspects of the clarifica- the democratic process is subject to pos- tion should thus be taken into account session of the relevant nationality, the only when defining the scope of the equivalent exception being the right to vote and stand prohibition under Article 10(1) of Decision as a candidate in municipal elections, open No 1/80. to all citizens of the Union in accordance with Article 19(1) EC. However, that is a limited exception expressly laid down in the Treaty. Austrian chambers of workers form another sub-national democratic organ, not covered by the exception, so that even citizens of the Union are barred from standing as candidates. The same must apply a fortiori to Turkish nationals.

(b) Does election to the general assembly of a chamber of workers involve participation in the exercise of powers conferred by public law?

57. Moreover, that limitation flows from Article 39(4) EC and should be interpreted accordingly in both Article 8(1) of Regu- 5 4 . T h e V e r f a s s u n g s g e r i c h t s h o f is lation No 1612/68 and Article 10(1) of undoubtedly better qualified than this Decision No 1/80. The type of employment Court to determine the role, nature and concerned, the Court has consistently held, 'must be understood as meaning a series of posts which involve direct or indirect par- 22 — The full text of Article 3 is as follows: ' E q u a l i t yof treatment 1.Subject to the special provisions o f ' t h i s ticipation in the exercise of powers con- Decision, persons resident in the territory of one of the ferred by public law and duties designed to Member States to whom this Decision applies shall be subject to the same obligations and enjoy the same benefits safeguard the general interests of the State under the legislation of any Member State as the nationals of that State. 2. The provisions of paragraph 1 shall apply or of other public authorities and which, to the right to elect members of the organs of social because of that fact, presume on the part of security institutions or to participate in their nomination, hut shall not affect the legislative provisions of any those occupying them the existence of a Member State relating to eligibility or methods of nomi- nation of persons concerned to those organs.' special relationship of allegiance to the 23 — At point 3.2.4 of the order for reference. State and reciprocity of rights and duties

58. The fact that such chambers are subject to democratic and constitutional con- straints does not in itself seem significant, and any assessment of their democratic legitimacy must surely take account of the identity and interests of those represented 'Article 8 of Regulation No 1612/68 is not — here those working in the Member State intended to debar workers from other rather than its nationals. Moreover, the Member States from certain posts, but types of measure which the chambers may simply permits them to be debarred in themselves adopt seem to be essentially some circumstances from certain activities self-regulatory; the Vorarlberg Chamber of which involve their participation in the Workers itself stresses their autonomous exercise of powers conferred by public law, nature and the fact that their sphere of such as — to use the examples given by the activity is confined essentially to the inter- Belgian Government itself — those invol- ests of those whom they represent. ving "the presence of trade-union represen- tatives on the boards of administration of many bodies governed by public law with powers in the economic sphere".'

59. It is true that, of the list of bodies to which chambers of workers may send 60. Nor does the proposed comparison with the exclusion of Turkish workers from 24 — See, for example, Case C-4/91 Bleis [1991] ECR I-5627, paragraph 6 of the judgment, together with the case-law cited there. 25 — Cited in note 12, at paragraph 15 of the judgment.

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eligibility to the organs of social security having regard to its wording and to the institutions under Article 3(2) of Decision purpose and nature of the agreement itself, No 3/80 seem to me to support the the provision contains a clear and precise approach put forward. If anything, it obligation which is not subject, in its appears rather to confirm that which I implementation or effects, to the adoption have outlined above, allowing such of any subsequent measure'. 26 workers to participate in bodies which send members to organs with powers con- ferred by public law but not themselves to be members of those organs.

64. As regards Article 10(1) of Decision No 1/80, it is helpful to refer to the judgment in Sürül 28 on the comparable provision in Article 3(1) of Decision No 3/80 of the Association Council. 29 That paragraph, the Court found, laid down in clear, precise and unconditional The second question terms a prohibition of discrimination based on nationality against persons to whom the decision was applicable. It contained a precise obligation of result and could thus be relied on by an individual requesting a 62. It is clear that both the Association Agreement and decisions of the Association 26 — Judgment of 29 January 2002 in Case C-162/00 Pokrzcp- Council are in principle capable of having towicz-Meyer, at paragraph 19, citing, inter alia, Case direct effect. The Court, in one of its most C-262/96 Surul [1999] LCR 1-2685, paragraph 60, and Case C-63/99 Gloszezuk [2001] KCR 1-6369, paragraph recent rulings in this area, has expressed 30. The case concerned the Europe Agreement between Poland and the Communities. that principle as follows: 'a provision in an 27 — Case C-192/89 [1990] LCR I-3461, at paragraph 9 of the agreement concluded by the Community judgment. with non-member countries must be 28 — Cited above in note 26, at paragraph 60 et seq. of the judgment. regarded as being directly applicable when, 29 — Quoted above in note 22.

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30 —The Court cited Case C-18/90 Kziber [1991] ECR I-199, paragraphs 15 to 23 of the judgment, confirmed by Case 67. The answer to the second question C-58/93 Yousfi [1994] ECR I-13J3, paragraphs 16 to 19; Case C-103/94 Krid [1995] ECR I-719, paragraphs 21 to referred thus follows ineluctably — as does 24; Case C-126/95 Hallouzi-Choho [1996] ECR I-4807, paragraphs 19 and 20; and Case C-113/97 Babahenini the answer to the first question — from the [1998] ECR I-183, paragraphs 17 and 18, relating to the Court's existing case-law. principle of equal treatment contained in Article 39(1) of the EEC-Algeria Cooperation Agreement (see Council Regulation (EEC) No 2210/78 of 26 September 1978, OJ 1978 L 263, p. 1), and to Article 41(1) of the EEC-Morocco Cooperation Agreement (see Council Regu- 33 — See Glosczuk, paragraphs 29 to 38 of the judgment, and lation (EEC) No 2211/78, OJ 1978 L 264, p. 1). Pokrzeptowicz-Meyer, paragraphs 19 to 30, both judg- 31—In Case C-416/96 El-Yassini [1999] ECR I-1209, at ments cited above in note 26. paragraphs 25 to 32 of the judgment. 34 — See paragraphs 2 to 4 above, and Nazli, quoted in 32 — Cited above in note 30. paragraph 35.

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Conclusion

68. I am therefore of the opinion that the Court should give the following reply to the questions raised by the Verfassungsgerichtshof:

(1) Article 10(1) of Decision No 1/80 of the Association Council set up by the EEC-Turkey Agreement is to be interpreted as precluding a national rule excluding Turkish workers duly registered as belonging to the labour force of a Member State from the right to be elected to the general assembly of a body such as a chamber of workers in Austria, provided that such a general assembly does not itself participate in the exercise of powers conferred by public law.