An overview of recent legal developments at community level in relation to third country nationals resident within the European union, with particular reference to the case law of the European court of justice

Common Market Law Review

Volumn 38, Issue 3, 2001, Pages 525-586

  Hedemann Robinson, Martin ^a,b  

^a BRUNEL UNIVERSITY   (United Kingdom)

^b EUROPEAN COMMISSION   (Belgium)

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[No Author keywords available]

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EID: 26444556991     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (327)

1. The literature on Community law in relation to TCNs is extensive. See e.g.: Oliver, "Non-Community nationals and the Treaty of Rome", 5 YEL (1985), 57;
2. Weiler, "Thou shalt not oppress a stranger: On the judicial protection of human rights of non-EC nationals", 3 EJIL (1992), 65;
3. O'Keeffe, "Union citizenship" in O'Keeffe and Twomey (Eds.), Legal Issues of the Maastricht Treaty (Wiley, 1994);
4. Evans, "Third country nationals and the Treaty on European Union", 5 EJIL (1994), 199;
5. Cholewinski, "The protection of the right of economic migrants to family reunion in Europe", (1994) ICLQ, 568;
6. Cremona, "Citizens of third countries: movement and employment of migrant workers within the European Union", (1995/2) LIEI, 87;
7. Hervey, "Migrant workers and their families in the European Union", in Shaw and More (Eds.), New Legal dynamics of the EU (Wiley, 1995);
8. Peers, "Towards equality: Actual and potential rights of third country nationals in the European Union", 33 CML Rev. (1996), 8;
9. Hedemann-Robinson, "Third country nationals, European Union citizenship and free movement of persons: A time for bridges rather than divisions", 16 YEL (1996), 321;
10. Martin and Guild, Free Movement of Persons in the EU (Butterworths, 1996);
11. Peers, "Undercutting integration: Developments in Union policy on third country nationals", 22 EL Rev. (1997), 76;
12. Peers, "Building Fortress Europe: The development of EU migration law", 35 CML Rev. (1998), 1235;
13. Staples, The Legal Status of Third Country Nationals Resident in the European Union (Kluwer, 1999).
14. See e.g. Cremona, The Legal Status of Third Country Nationals Resident in the European Union ( op. cit. supra note 1.
15. It is estimated that over 10 million TCNs reside within the European Union. See data compiled in EUROSTAT (OOPEC, 1997 Yearbook) and COM(94)23fin. Commission Communication on Immigration and Asylum Policies, at para 118. From the data available it would appear that TCNs currently represent approximately 3% of residents within the EU. This figure easily exceeds the combined population of the three Member States with the smallest number of inhabitants: i.e. Denmark, Ireland and Luxembourg.
16. As exemplified in the Immigration Consultation case, in which no less than five Member States challenged the competence of the Commission to promulgate Decision 85/381 (O.J. 1985, L 217/25) setting up a prior consultation and communication procedure on migration policies in relation to non-member countries under the auspices of Art. 137 EC (ex 118 EEC): Cases 281, 283-285 & 287/85, Germany, France, The Netherlands, Denmark and the UK v. Commission [1987] ECR 3245.
17. Cases 281, 283-285 and 287/85, supra note 4.
18. Notable examples include the Commission's proposals for a directive on the right of third country nationals to travel in the Community (COM(95)346fin), for a Council regulation amending Regulation 1408/71 as regards its extension to nationals of third countries (COM(97)561 fin) and for a Council act establishing a convention on the rules for the admission of third country nationals to the Member States of the EU (COM(97)387fin).
19. In particular, see the EU Council Resolution of 4 March 1996 on the status of third country nationals residing on a long-term basis in the territory of the Member States (O.J. 1996, C 80/2).
20. See Title IV to the EC Treaty on Asylum, Immigration and Other Policies Related to the Free Movement of Persons, Arts. 61-69 EC.
21. The text of the Presidency Conclusions of the European Council summit at Tampere, Finland (15-16 Oct. 1999) is reproduced on the EU's website (www.europa.eu.int).
22. E.g. Art. 45(2) of the EU Charter on Human Rights, recently approved by the European Council at its Nice Summit on 7 Dec. 2000, envisages the possibility that freedom of movement and residence rights "may be granted, in accordance with the [EC] Treaty, to nationals of third countries legally resident in the territory of a Member State". That this issue was placed formally onto an agenda of fundamental human rights discourse at Union level is, in itself, a significant step. The text of the Charter (CHARTE 4487/1/00 REV 1 CONVENT 50) is available for inspection on the Union's website at www.europa.eu.int.
23. See the favourable views expressed by recent editorial comments in this journal on the impact of Tampere, in 36 CML Rev., 1119-1125.
24. See point 21 of the Tampere Presidency Conclusions, contained within Section III "Fair Treatment of Third Country Nationals".
25. Point 18 of the Presidency Conclusions, ibid.
26. See point 21 of the Tampere Presidency Conclusions in which the European Council specifies in further detail what it means by "Fair Treatment of Third Country Nationals" (Section III of the Conclusions). Here, it calls for TCN residents who are in possession of a long-term residence permit from a Member State to be "granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by EU Citizens; e.g. the right to reside, receive education, and work as an employee or self-employed person, as well as the principle of non-discrimination vis-à-vis the citizens of the State of residence." (our emphasis). Arguably, the concern of the European Council here appears to be centred on ensuring that each Member State affords national treatment to those persons admitted into their respective territories under the auspices of national immigration rules. This would seem to contradict the European Council's earlier introductory statements made in points 2 and 3 of the Tampere Conclusions that "[t]he challenge of the Amsterdam Treaty is now to ensure that freedom [based on human rights, democratic institutions and the rule of law], which includes the right to move freely throughout the Union, can be enjoyed in conditions of security and justice accessible to all", a freedom which "should not, however, be regarded as the exclusive preserve of the Union's own citizens". For a critical assessment of the recent constitutional developments taken at EU level in respect of TCN residents, see Hedemann-Robinson, "Continuation of second class citizenship under European Union law? An overview of recent developments in law and policy on third country nationals resident within the European Union" (2001) YEL, forthcoming.
27. See point 22 of Annex v. of the European Council's Presidency Conclusions at Santa Maria da Feira 19-20 June 2000, on a Common Strategy of the EU on the Mediterranean Region, which states that in respect of nationals of Mediterranean third States lawfully residing in a EU Member State there should be an approximation "of their legal status in that Member State to that enjoyed by EU citizens" as a means of ensuring their "integration into society" (our emphasis). In addition, Art. 45(2) of the Charter of Fundamental Rights of the European Union, as recently enunciated by the European Council at its Nice Summit on 7 Dec. 2000, merely states that freedom of movement and residence "may be granted . . . to nationals of third countries legally resident in the territory of a Member State" (our emphasis).
28. The Tampere summit has timetabled "a full debate assessing progress" to occur at the European Council's summit under the Belgian Presidency in December 2001. However, it is unclear what this will mean in terms of there being (any) definitive change.
29. See for a fuller account of the legal arrangements in place on TCN residents pre-Amsterdam, the article by Peers published in this Review (1996), supra note 1.
30. Art. 220 EC.
31. See in particular, Arts. 5 and 7 EC.
32. This particular issue is made all the more poignant with the recent institution of the EU Charter on Human Rights, a constitutional restatement of the importance of ensuring the Union's adherence to minimum standards of fundamental rights and freedoms for individuals located within its territory.
33. This state of affairs echoes the critical sentiments expressed by various judges of the European Court of Human Rights in the context of aliens' rights guaranteed under the European Convention on Human Rights and Fundamental Freedoms 1950. Many have criticized continued reliance on the haphazard evolution and limited scope of rights protection afforded under the Convention, an instrument ill-suited to dealing with the subject of resident alien integration. See for instance, the opinions of Judges Martens and Pettiti in Boughanemi v. France [1996] 22 EHRR 228; Judge Palm in Bouchelkia v. France [1997] 25 EHRR 686 at 708; Judges Baka and Van Dijk in Boujlifa v. France of 21 Oct. 1997 and Judges Costa and Tulkens in Bhagli v. France of 30 Nov. 1999. (The latter two judgments can be located on the ECHR website www.echr.coe.int/hudoc).
34. Detailed overviews of the provisions and effects of the various EU bilateral agreements with regard to third country nationals' rights include: Cremona, supra note 1; Guild (Ed.), The Legal Framework and Social Consequences of Free Movement of Persons in the EU, (1999 Centre of European Law, KCL);
35. Hakura, "The external EU immigration policy: The need to move beyond the orthodoxy", 3 EFA Rev. (1998), 115;
36. Handoll, Free Movement of Persons in the EU, (1994, Wiley) especially Chapter 10; Martin and Guild, supra note 1; Peers (1996), supra note 1; Staples, supra note 1.
37. Agreement creating a European Economic Area (O.J. 1994, L 1/3). This agreement was concluded between the European Economic Community, together with the European Steel and Coal Community and Member States, and Austria, Finland, Iceland, Norway and Sweden (essentially the membership of the European Free Trade Association at the time bar Switzerland and Liechtenstein). Liechtenstein acceded finally in 1995, this delay accounted for by the Swiss rejection of ratification by way of referendum in late 1993.
38. The Agreement between the EC, its Member States and the Swiss Confederation on the Free Movement of Persons, signed on 21 June 1999. It is likely to enter into force in late 2001. A copy of the Agreement can be inspected on the website www.europa.admin.ch/e/int/.
39. Agreement establishing an Association between the EEC and Turkey 1963 (O.J. 1973, C 113/2).
40. The so-called Europe Agreements, concluded with Hungary, Poland, the Czech and Slovak Republics, Bulgaria, Romania, the Baltic States and Slovenia.
41. The Maghreb group is composed of Algeria, Libya, Morocco and Tunisia.
42. Namely, those with Liechtenstein, Norwegian or Icelandic nationality (given the EU accession of Austria, Finland and Sweden on 1 Jan. 1995).
43. See Arts. 2,4 and 6 of Protocol No.3 on the Channel Islands and the Isle of Man of the Treaty of Accession as between the UK and the EEC.
44. O.J. 1991, C 302/12.
45. In practice, relatively few inhabitants of these regions will encounter problems in terms of being able to integrate into the European Union. In particular, a substantial number of the inhabitants of these regions possess nationality of a Member State (e.g. British, French or Italian), and will therefore encounter few real problems in practice in being able to rely on the EU Law rights accorded to other Member State nationals residing within the EU territory (see Art. 6 of Protocol No. 3 of First Treaty of Accession 1972). For discussion of immigration implications in relation to Member State nationals residing in the Channel Islands and Isle of Man, see e.g. Plender, "The rights of European Citizens in Jersey" (1998) 2(3) Jersey Law Rev. 220-242; C-171/96, Roque, [1998] ECR I-4607, annotated by Stanley in 35 CML Rev., 1091.
46. For recent overviews of the legal status and effects of international agreements involving the EU in relation to immigration policy, see e.g. Cremona, "External Relations and External Competence: The Emergence of an Integrated Policy", in Craig and De Burca (Eds.), The Evolution of EU Law (1998, Oxford);
47. Handoll, The Evolution of EU Law ( op. cit. supra note 22, Ch. 10;
48. McGoldrick, International Relations Law of the EU, (1997, Longman).
49. As recognized by Staples, International Relations Law of the EU ( op. cit. supra note 1 at p. 239.
50. The orthodox view hitherto is that the EU has no legal personality or capacity to conclude such agreements. (See, for a differing view on the EU's status in international law: Wessel, "International legal status of the European Union", 2 EFA Rev. (1997), 109-129). In terms of international practice, it is has been instead the European Communities and the individual Member States of the EU which have been the vehicles used for implementing the EU's external relations. Essentially, competence is divided on the following basis: whereas the former have responsibility for concluding agreements as regards matters in respect of which they have exclusive competence internally under the three Community treaties (Treaties of Rome 1957 and Paris 1951) and in respect of the Common Commercial Policy under Art. 133 EC, the latter represent the EU in all other areas (such as the second and third pillars under the Treaty on European Union 1992 as amended). The division of competence between Community and Member States, as determined under Arts. 133 and 300 EC in conjunction with the ECJ's case law, is highly complex and nuanced. In particular, further refinements to the situation of mixity are envisaged in the services sector as a result of amendments to Art. 133 EC by the Treaty of Nice 2000.
51. Cases 183/73, Haegemann v. Belgium, [1974] ECR 449; C-192/89, Sevince v. Staatssecretaris van Justitie, [1990] ECR I-3461.
52. Case 12/86, Demirel v. Stadt Schwäbisch Gmünd, [1987] ECR 3719.
53. Sevince, supra note 35.
54. Sevince, supra note 35 and C-18/90, ONEM v. Kziber, [1991] ECR I-199.
55. Case 270/80, Polydor Ltd, [1982] ECR 329.
56. Such as the Partnership and Co-operation agreements with independent States of the former Soviet Union.
57. See e.g. the ECJ's analysis of the Community's involvement in the GATT in Case 21-24/72, International Fruit Co. NV, [1972] ECR 1219.
58. Currently, cases are pending in relation to particular agreements with central and eastern European countries. See section 2.4.1 below.
59. Namely whether a norm fulfils the requirements of being sufficiently clear, precise and unconditional.
60. One possible route that the Court could take would be to attach more importance to the presence or absence of any clauses in an agreement which expressly purport to exclude the possibility of direct effect. Such a clause has not been used in any of the thirty agreements which contain provisions on TCN migration. In the preamble of its Decision concluding the WTO Agreement, the Council inserted a clause stating that "by its nature the Agreement establishing the World Trade Organization, including the Annexes thereto, is not susceptible to being directly invoked in Community or Member State courts". (Council Decision of 22 Dec. 1994, O.J. 1994, L 336/1). Pending clarification from the ECJ, it is moot whether or not this clause has the effect that it intends. See e.g. De Witte, "The nature of the legal order" in Craig and De Burca, International Relations Law of the EU op. cit. supra note 32, p. 186.
61. See McGoldrick, supra note 32, at 132.
62. The EEA Agreement was signed on 2 May 1992 at Oporto, and entered into force on 1 Jan 1994 (O.J. 1994, L 1/3).
63. A full text of the EC-Swiss agreement can be located on the www.europa.admin.ch/e/int/ website.
64. On 10 Dec. 1998 the EU Council of Ministers concluded political negotiations on an agreement with Switzerland regarding the free movement of persons (i.e. Swiss and EU nationals), the terms of which are substantially to mirror those adopted under the EEA Agreement, bar transitional provisions. See EC-Bull. 12/1998 and General Report on the Activities of the EU in 1998 (1999, OOPEC) at point 793.
65. The seven agreements relate to technical barriers to trade, free movement of persons, research, public procurement, overland transport, civil aviation and agricultural produce. All are inextricably linked to one another, so that if one were to be cancelled by a party, all the others would rendered inapplicable at the same time.
66. For analysis on the EEA arrangements, see e.g.: Martin and Guild, supra note 1 Ch. 12; Handoll, International Relations Law of the EU op. cit. supra note 22, at point 10.5 et seq.;
67. Sevon and Johansson, "The protection of the rights of individuals under the EEA Agreement", 24 EL Rev.(1999), 373.
68. Annex VII to the EEA incorporates the Community acquis on mutual recognition of professional qualifications and Annex VIII applies the EC Treaty rules on the freedom of establishment.
69. See Art. 10(2) of the EC-Swiss agreement which permits the Community to maintain existing controls with respect to prioritizing workers for two years after entry into force of the agreement. Switzerland has reserved for itself lengthier derogations, spreading up to 12 years: see Arts. 10(1),(3) and (4).
70. Art. 9 of Annex I, ibid.
71. Council Regulation 1612/68/EEC on freedom of movement for workers within the Community O.J. Sp Ed 1968 (II) 475.
72. Art. 10 of Annex I, ibid.
73. Arts. 9(5) and 16 of Annex I, ibid.
74. Art. 16(2) of the EC-Swiss agreement states: "In so far as the application of this agreement involves concepts of Community law, account shall be taken of the relevant case law of the [ECJ] prior to the date of its signature. Case law after that date shall be brought to Switzerland's attention. To ensure that the Agreement works properly, the Joint Committee, shall, at the request of either Contracting Party, determine the implications of such case law". A reasonable inference to be drawn from this clause is that the Community itself will be bound by future case law, but special procedures will need to be set up in respect of Switzerland.
75. See e.g. the non-discrimination prohibition contained in Art. 4 EEA, which prohibits differential treatment applied by the signatories to EEA nationals on grounds of national origin.
76. Discussed below at sections 2.2 and 2.3 respectively.
77. Case C-85/96, Martinez Sala v. Freistaat Bayern, [1998] ECR I-2691; but see also annotation by Tomuschat in 37 CML Rev., 449-457.
78. The general non-discrimination provisions contained in the agreements (Art. 2 EC-Swiss Agreement and Art. 4 EEA), prohibiting discrimination on grounds of nationality are unlikely to be of assistance here, as their application is limited to the respective scope of the agreements, neither of which addresses the issue of citizenship.
79. See Hedemann-Robinson, "The Area of Freedom, Security and Justice with regard to the UK, Ireland and Denmark: The 'opt-in opt-outs' under the Treaty of Amsterdam", in O'Keeffe and Twomey (Eds.), Legal Issues of the Amsterdam Treaty (1999, Wiley).
80. Paras. 9-10 of Annex VIII of the EEA Agreement.
81. See Art. 22(3) of Annex I, ibid.
82. See Protocol 29 on Vocational Training to the EEA Agreement. For further analysis of the implications of this in relation to Art. 4 EEA, see Peers (1996), supra note 1 at 18. See also Art. 24(4) of Annex I to the EC-Swiss Agreement.
83. Notably, Art. 112 EEA provides that any contracting State may of its own motion take safeguard measures "if serious economic, societal or environmental difficulties of a sectorial or regional nature liable to persist are arising". See also the Declaration by the EEA Council on Free Movement of Persons of 10 March 1995 (reproduced in Martin and Guild, supra note 1 at p. 249).
84. Even Luxembourg, with a relatively high population of resident aliens (some 30%) and which has a derogation as regards EU Regulation 1251/70 on the right of EU-MSN workers to remain, decided not to apply this to EEA-EFTA nationals: see para 4 of Annex v. of the EEA Agreement.
85. An EU Member State would have to prove that a "serious" economic, societal or environmental difficulty had arisen (Art. 112(1) EEA) as well as ensure that any unilateral measures were restricted "to what is strictly necessary in order to remedy the situation" (Art. 112(2) EEA). It is virtually inconceivable that the ECJ would countenance any such measures as being compatible with these norms. Thus, Art. 112 EEA is, in effect a paper tiger as far as residence within the EU is concerned.
86. For more detailed commentary on the association in respect of migrants' rights, see Rogers, A Practitioner's Guide to the EC-Turkey Association Agreement, (Kluwer, 2000).
87. All the sources are reproduced in EEC-Turkey Association Agreement and Protocols and Other Basic Texts, (1992 OOPEC). EEC-Turkey Association Agreement 1963 (signed 12 Sept. 1963; entered into force 1 Dec. 1964) O.J. 1964, L 217. Additional Protocol 1970 (signed 23 Nov. 1970; entered into force 1 Jan. 1973) O.J. 1972, L 293. Decision 1/80 on the development of the Association, Decision 3/80 on the application of the social security schemes of the Member States of the EC to Turkish workers and their families (both signed 19 Sept. 1980 and entered into force as from 1 Dec. 1980). The recent customs union agreement entered into between the European Community and Turkey on 31 Dec. 1995 (by virtue of Decision 1/95 of the EC-Turkey Association Council O.J. 1996, L 35/1) has not affected the position regarding Turkish TCN resident rights: Peers, "Living in sin: Legal integration under the EC-Turkey Customs Union", 7 EJIL (1996), 411 at 414.
88. See the third recital to the Preamble and Art. 28 of the Ankara Agreement.
89. See Arts. 12-14 Ankara Agreement.
90. The ECJ has, for instance, denied that Arts. 12-13 of the Ankara Agreement have direct effect in Demirel, supra note 36; C-37/98, R v. SSHD, ex parte Abdulnasir Savas, judgment of 11 May 2000, nyr.
91. See Demirel, supra note 36 at para 23 of judgment; Martin and Guild, supra note 1 at p. 253; Cremona, supra note 1 at 93. This particular provision might well have direct effects in conjunction with other legal instruments underpinning the association arrangements, by way of analogy with Art. 12 EC. See Peers (1996), supra note 1 at 18 who refers to Art. 9 as a potential "wild card", and recent cases which seem to lend support to the argument that Art. 9 may have important residual legal effects: A.G. Pergola's second Opinion of 17 Dec. 1998 in C-262/96, Süriil v. Bundesanstalt für Arbeit, [1999] ECR I-2685, and the Court's comments at para 36 of its judgment in Joined Cases C-102 & 211/98, Kocak v. Landesversicherunganstalt Oberfranken und Mittelfranken and Ramazan Örs v. Bundesknappschaft, of 14 March 2000.
92. Title II (Movement of Persons and Services): Arts. 36-42.
93. Cited supra note 36.
94. Abdulnasir Savas, supra note 73.
95. In this particular case, the standstill clause applied with effect from the entry into force of the date of accession of the UK to the EEC in Jan. 1973.
96. See Kziber, supra note 38; C-58/93, Youfsi v. Belgium, [1994] ECR I-1353; C-126/95, Hallouzi-Choho v. Bestuur van de Sociale Verzekeringsbank, [1996] ECR I-4807; C-416/96, El-Yassini v. SSHD, [1999] ECR I-1209: Arts. 40-41 EEC-Morocco Cooperation Agreement 1976. Cases C-103/94, Krid v. CNVATS, [1995] ECR I-719; C-113/97, Babahenini v. Belgian State [1998] ECR I-183: Art. 39 EEC-Algeria Cooperation Agreement 1976.
97. See also recent comments by the Court in para 38 of its judgment referring to Art. 37 AP in Kocak and Örs, supra note 74.
98. The ECJ has consistently confirmed this: see e.g. C-36/96, Günaydin et al. v. Freistaat Bayern, [1997] ECR I-5143 at para 23 of judgment; C-1/97, Birden v. Stadtgemeinde Bremen, [1998] ECR I-7747 at paras. 37-38 of judgment.
99. See para 22 of judgment in Günaydin, supra note 81.
100. See e.g. Sevince, supra note 35.
101. See Sevince, supra note 35; C-355/93, Eroglu v. Land Baden Württemberg, [1994] ECR I-5131; C-351/95, Kadiman v. Freistaat Bayern, [1997] ECR I-2139; C-210/97, Akman v. Oberkreisdirektor des Rheinish-Bergischen-Kreises, [1998] ECR I-7519. The Court rightly rejected the view proffered by defendant Member State governments that no such residency rights could be implied from the texts, as this would have completely undermined the employment rights conferred by Decision 1/80: see comments by Zuleeg 33 CMLRev., 93 at 100, on the Eroglu case.
102. Commission Regulation on the right of workers to remain in the territory of a Member State after having been employed in that State (O.J. Sp Ed 1970 (II) 402).
103. Directive 75/34 concerning the right of nationals of a Member State to remain in the territory of another Member State after having pursued therein an activity in a self-employed capacity (O.J. 1975, L 14/10).
104. Case C-434/93, Bozkurt, [1995] ECR I-1475.
105. Akman, supra note 84, where the ECJ held that the son of a retired Turkish worker, formerly employed in Germany, should continue be able to exercise his employment rights under Art. 7(2) of Decision 1/80 in Germany, notwithstanding the fact that his father had moved to live in Turkey. For comments on this case, see Peers 36 CML Rev., 1027. Of course, as and until family members become entitled to any of the rights contained in Art. 7 of Decision 1/80, their rights to remain in the host territory under the association arrangements is wholly contingent upon the residency status of the primary right-holder, namely the migrant worker.
106. See similar comments by Cremona, supra note 1 at 105.
107. Notwithstanding the fact that the text of the ECHR does not appear to contain much legal protection for immigrants located within the jurisdiction of its contracting parties, the ECtHR has developed a significant of body of case law on the compatibility of immigration rules with the Convention's rights and freedoms. In particular, Art. 8 ECHR, which guarantees respect for privacy, family life, home and correspondence, and Art. 3 ECHR (torture, inhuman and degrading treatment and punishment) have been important in this respect. For an overview of recent Strasbourg case law, see e.g. Marin and O'Connell, "The European Convention and the relative rights of resident aliens", 5 ELJ (1999), 4.
108. Greater residency rights are afforded under Community law to EEA or Swiss nationals, and those closely related to a MSN resident.
109. The creation of a freedom of establishment and freedom to provide services commensurate with that existing under the EC Treaty's self-employment provisions were foreseen in the Ankara Agreement but never implemented: see Arts. 13-14 EEC-Turkish Association Agreement. As Staples has pointed out these programmes for future action constitute only "paper" rights: Staples, supra note 1 at pp. 255, 259.
110. By virtue of Art. 41(1) AP. See the judgment in Savas, supra note 73.
111. The remit of the prohibition in Art. 9 is subject to its application being "within the scope of this Agreement". Clarification is needed from the ECJ as to whether the absence of any specific non-discrimination clause contained in the association arrangements with respect to self-employment means that Art. 9 cannot apply to the field of establishment or services. To exclude the reach of Art. 9 from the self-employment field would be unconvincing, not least as a common intent of eliminating barriers between the Contracting Parties in the areas of establishment and services is expressed in the Ankara Agreement (Arts. 13-14) and is regulated to a limited extent by the Additional Protocol (Arts. 41-42 AP). Thus, self-employment is a matter clearly falling within the scope of the Ankara Agreement.
112. The EC's EURES (European Employment Services) vacancy clearance system operates on the basis of priority of Community nationals over third country migrant workers: see Art. 19(2) of Regulation 1612/68 (O.J. 1968 Sp. Ed., as amended by Regulations 312/76 and 2434/92 respectively: O.J. 1976, L 39/2; O.J. 1992, L 245/1) and Commission Decision 93/569 (O.J. 1993, L 274/32). See recent Commission report on the EURES system, COM(2000)607fin. EURES activity report 1997-1998 "Towards an integrated European labour market: the contribution of EURES". (The degree of free access accorded under the third indent of Art. 6(1) in Decision 1/80 is rendered slightly unclear by the effect of Art. 8(1) which requires Member States and their employment services to "endeavour" to prioritize Turkish workers whenever jobs cannot be placed with MSN workers).
113. See Peers (1996) supra note 1 at 27; Martin/Guild, supra note 1 at 274.
114. EC Council Regulation 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community O.J. Sp Ed 1971 (II).
115. Art. 32 of Decision 3/80 simply requires the Contracting Parties to "take the necessary steps" to implement its provisions.
116. Case C-227/94, Taflan-Met v. Bestuur van de Social Verzekeringsbank, and Akol v. Bestuur van de Nieuwe Algemene Bedrijfsvereniging, [1996] ECR I-4085.
117. See Arts. 12-14 of the Ankara Agreement.
118. In Case C-171/95, Tetik v. Land Berlin, [1997] ECR I-329 the ECJ drew from its case law in respect of Art. 39 EC in order to hold that a Turkish seaman, who had voluntarily discharged himself from employment as a mariner after completing over four years' continuous work with the same German employer so that he could seek work on the German mainland, remained a "worker" for the purposes of Art. 6(1) of Decision 1/80. See also Birden, supra note 81.
119. In Bozkurt, supra note 87, the ECJ drew inspiration from its MSN migrant worker case law (Case 9/88, Lopes da Veiga, [1989] ECR 2989) in order to determine whether a Turkish international lorry driver's employment had a sufficiently close connection with the Netherlands for him to be deemed to be part of the Dutch workforce. For comments on Bozkurt, see Peers 33 CML Rev., 103 at 106.
120. Birden, supra note 81.
121. C-340/97, Ömer Nazli et al. v. Stadt Nürnberg, judgment of 10 Feb. 2000, nyr.
122. Case C-98/96, Ertanir, [1997] ECR I-5179. See also Bozkurt, supra note 87 where the Court (at para 29) held that the Netherlands could not rely on the fact that it did not require either the issue of a work or residence permit for Bozkurt's contract as lorry driver in order to argue that he was outside the remit of "legal employment" for the purposes of Art. 6(1).
123. See e.g. Case 157/79, R v. Pieck, [1979] ECR 2171.
124. See Peers, note on Bozkurt (supra note 87), supra note 102, at 106.
125. Bozkurt, supra note 87.
126. Taflan-Met, supra note 99.
127. Sevince, supra note 35; C-237/91, Kus v. Landeshauptstadt Wiesbaden, [1992] ECR I-6781; Eroglu, supra note 84; C-285/95, Kol v. Land Berlin, [1997] ECR I-3069; Günaydin, supra note 81. See also commentators' assessments of this case law: "Cases and legislation - EEC (Casenote on Kus), 7/2 INLP (1993), 71; Lichtenberg, "The rights of Turkish workers in Community Law", 24 ILJ (1995), 90;
128. Vedder and Folz, note on Eroglu, 7 EJIL (1996), 130.
129. Kol, supra note 110.
130. This seems to be the position after the judgment in Kol, supra note 110, where the ECJ refused to allow a Turkish worker to be able to rely on periods of work completed pending the outcome of his appeal against a refusal to extend his residence permit in order to qualify for the three year rule in Art. 6(1). Instead Kol could only rely on the period of work completed under the auspices of the original work permit (i.e. only qualify for the rights pertaining to one year's employment).
131. Sevince, supra note 35; Kus, supra note 110; Eroglu, supra note 84.
132. Cases Ertanir, supra note 105; Günaydin, supra note 81.
133. Case Günaydin, supra note 81.
134. Sevince, supra note 35; C-386/95, Eker v. Land Baden Württemberg, [1997] ECR I-2707; Birden, supra note 81. This is subject, of course, to compliance with public policy, security or health requirements as set down in Art. 14 of Decision 1/80.
135. C-65/98, Safet Eyüp v. Landesgeschäftsstelle des Arbeitsmarktservice Vorarlberg, judgment of 22 June 2000, nyr.
136. Permanent retirement from employment, for whatever reason, will trigger a collapse of these rights. See Case Bozkurt, supra note 87.
137. Ömer Nazli, supra note 104.
138. See paras. 40-45 of judgment, ibid. In Nazli's case, he had been given a suspended instead of custodial sentence, a factor which the Court used to underline the point that, far from having definitively left the workforce, he had been invited to rejoin the labour market by the host State as part of a process of offender rehabilitation.
139. Case Tetik, supra note 101.
140. See para 30 of judgment, ibid.
141. C-329/97, Sezgin Ergat v. Stadt Ulm, judgment of 16 March 2000, nyr.
142. C-292/89, R v. IAT, ex parte Antonissen, [1991] ECR I-745.
143. Case Kadiman, supra note 84.
144. El-Yassini, supra note 79.
145. Art. 12 states that the Contracting parties may refrain from automatically applying Arts. 6-7 in the event of employment market disturbances that "might seriously jeopardize the standard of living or level of employment in a particular region, branch of activity or occupation". Although this derogation appears wider than that employed in relation to the EEA Agreement (Art. 112 EEA), there appears little doubt that the ECJ would subject EU Member States to a proportionality test in the event of its activation within the EU.
146. Ömer Nazli et al., supra note 104.
147. Notably, the judgments in 67/74, Bonsignore, [1975] ECR 297; 115-116/81, Adoui & Cornuaille, [1982] ECR 1665 and C-348/96, Donatella Calfa, [1999] ECR I-11.
148. Cited supra note 99. For commentaries on this case, see Bulterman 34 CML Rev., 1497
149. and Peers, "Equality, Free Movement and Social Security", 22 EL Rev.(1997), 342.
150. Arts. 12 and 13 respectively.
151. Council Regulation 574/72 laying down the procedure for implementing Regulation 1408/71 O.J. Sp Ed 1972 (I), 159. The Commission proposed an implementing measure in 1983 but this is still waiting for Council approval: COM(83)13fin O.J. 1983, C 110/1.
152. Most commentators had thought that the ECJ had ruled out direct effect in respect of the Decision entirely: Bulterman (1997) supra note 130, at 1503; Peers (1997) supra note 130 at 347 and 349.
153. Sürül, supra note 74.
154. The ECJ decided to rule out the retrospective effect of its judgment in Sürül, supra note 74, on the grounds that the legal status of Decision 3/80 had been left unclear in the light of its decision in Taflan-Met, supra note 99 (see para 113 of judgment). That migrant workers have had effectively to forfeit rights due to the misleading comments of the ECJ itself has rightly been the subject of criticism: see Peers, "Social Security Equality for Turkish Nationals", 24 EL Rev. (1999), 627.
155. See the recent Joined Cases Kocak and Örs, supra note 74. The ECJ rejected submissions by the plaintiffs' and Commission's argument that German social security rules were indirectly discriminatory, in refusing to take account of foreign court judgments which had rectified dates of birth entered on the plaintiffs' original birth certificates. The Court appeared to ignore the fact that the effect of the German rules were far more likely to affect adversely Turkish workers than German nationals in practice, due to the relatively higher rates of belated registration of births with the authorities in Turkey. See also C-336/94, Dafeki v. Landesveranstalt Württemberg, [1997] ECR I-6761, where the ECJ held that German rules on evidence of civil status, which at the time differed according to whether the individual concerned was a German or of other nationality, was contrary to Community law under Arts. 39-42 EC.
156. The ECJ has confirmed recently that children who have completed a course of vocational training within a host Member State for the purposes of Art. 7(2) of Decision 1/80 are not subject to the policy of preferential access to Community workers: para 36 of judgment in Akman, supra note 84. For comments on Akman, see Peers 36 CML Rev., 1027-1041. For further information on EURES, see Commission Decision 93/569/EEC on the implementing of Council Regulation 1612/68 on freedom of movement of workers with the Community as regards, in particular, a network entitled EURES (European Employment Services) O.J. 1993, L 569/118. (EURES operates under the auspices of Title II to Council Regulation 1612/68).
157. Although it could be argued that the concept of "working conditions" should be interpreted broadly so as to include dismissal and redundancy situations, given that their exclusion would be wholly anomalous and the fact that the concept of "working conditions" has been used elsewhere in EC Law in close association with the area of dismissal: see Art. 5 of EC Directive 76/207 on equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (O.J. 1976, L 39/40). The Court has construed that the reference to "working conditions, including conditions governing dismissal" in Art. 5 of Directive 76/207 embraces redundancy schemes: Case 152/84, Marshall v. Southampton and South-West Hampshire AHA, [1986] ECR 723.
158. Supra, note 54.
159. Art. 7(2) of Regulation 1612/68.
160. Notably, Art. 7 of Decision 1/80 does not expressly incorporate the persons listed in Art. 10 of Regulation 1612/68, namely the family members applicable to MSN migrants. In contrast, family members are defined when it comes to questions of access to social security benefit: see Art. 1 of Decision 3/80. Interestingly, recent case law in respect of the EEC-Moroccan Cooperation Agreement, suggests that in the absence of any specific reservation made by the Contracting Parties, the term "family members" has an autonomous meaning independent of national law: C-179/98, Belgium v. Mesbah, judgment of 11 Nov. 1999. To what extent this ruling, which turned upon access to social security, applies in the context of the employment rights afforded in Art. 7 of Decision 1/80 is unclear.
161. For instance, the earliest opportunity when a family member acquires rights to engage in paid employment under Art. 7 of Decision 1/80 is after 3 years of residency in the host State (or after completion of a course of vocational training in the case of a child). See Demirel, supra note 36, especially at para 28 of judgment.
162. It is conceivable that the ECJ might decide to construe the reference to "Turkish" as being surplusage or a reference to the nationality of the parent(s), given that Art. 7 makes no distinction on grounds of national origin as regards access to the host labour market, as well as the fact that it has been prepared to depart from the literal wording of Art. 12 of Regulation 1612/68 in order to secure equal treatment for migrant MSN workers' children: e.g. Cases 9/74, Casagrande, [1974] ECR 773; 389-390/87, Echtemach and Moritz, [1989] ECR 723.
163. Art. 9(2) of Decision 1/80.
164. As most recently expressed in the draft EU Charter of Human Rights which affirms the Union's commitments to the minimum guarantees afforded under the ECHR in relation to migration issues.
165. C-386/95, Eker, supra note 116. At para 29 in its judgment, the Court stated that the Community worker priority system would otherwise be compromised, a wholly unconvincing explanation which sits uneasily with the Court's case law elsewhere concerned with the need to extend migrants' rights to be in greater alignment with the EC Treaty migrant worker rules. Moreover, in such a case the legitimate expectations of the migrant worker should be a primary concern, in order that compliance with basic human rights standards and essential legal principles within the Community legal order is maintained (cf. Demirel, supra note 127). Whether or not the Court will be prepared to amend its stance, for instance in the light of the EU Charter on Human Rights, it would appear that Art. 6(1) offers no protection in the event of a change of employer due to bankruptcy, or perhaps even a takeover.
166. Demirel, supra note 36. Art. 36 AP stipulates that freedom of movement of workers between the Contracting Parties shall be secured between the twelfth and the end of the twenty second year after the entry into force of the Ankara Agreement.
167. Bozkurt, supra note 87.
168. Taflan-Met, supra note 99.
169. Case Kadiman, supra note 84.
170. See paras. 32-40 of the judgment, supra note 84.
171. She could not rely on Art. 6(1) of Decision 1/80 as a worker, as she had not engaged in paid work in Germany with the same employer for at least one year during this period (notwithstanding the fact that she had received work permits). The Court's judgment also seems to imply that national immigration authorities are entitled to require cohabitation between spouses as a condition attached to the first year of paid work under Art. 6(1). Thus, non-fulfilment of a condition of one year's cohabitation during paid work would entitle a Member State to prevent a spouse from being able to rely on that provision in order secure continued residency in the host territory, notwithstanding any willingness on the part of an employer to extend the contract of employment indefinitely.
172. Para 38 of judgment, supra note 84.
173. Cases 267/83, Diatta, [1985] ECR 567; 131/85, Gül, [1986] ECR 1573.
174. See also the recent ECJ judgment in Safet Eyüp, supra note 117. The Court held that a period of over 7 years, during which a Turkish couple were divorced before deciding to remarry, should be taken into account for the purposes of calculating the acquisition of rights under Art. 7, given that they had never stopped cohabiting throughout their joint residency in Austria.
175. That the ECJ is prepared to contemplate the construction of differing degrees of family reunion protection based on grounds of nationality appears to conflict with the principles set out by the ECtHR in relation to the human rights guarantees of privacy, family and home secured under Art. 8 and non-discrimination under Art. 14 of the ECHR: Abdulaziz, Cabales and Balkandali v. UK [1985] 7 EHRR 471.
176. See e.g. the Council Resolution on measures to be adopted on the combating of marriages of convenience O.J. 1997, C 382/1.
177. O.J. 1978, L 265/2.
178. O.J. 1978, L 264/2.
179. O.J. 1978, L 263/2.
180. Reproduced in full in (1997) EFA Rev. 125.
181. This group is composed of Egypt, Jordan, Lebanon and Syria.
182. Namely, EURO 4.685bn over the period 1995-1999.
183. Namely, EMAs with Morocco (signed 26 Feb. 1995:), Tunisia (signed 17 July 1995), Jordan (signed 24 Nov. 1997) and Israel (20 Nov. 1995), the text of which are reproduced in the European Communities Section of HMSO Treaties under the following references respectively: EC No.2 (1997) cm3532; EC No.6 (1996) cm3519; EC No.3 (1998) cm3946; EC No.11 (1996) cm3239.
184. The Tunisian EMA entered into force on 1 March 1998 (O.J. 1998, L 132).
185. Aghrout and Alexander, "The Euro-Med new strategy and the Maghreb countries", 2 EFA Rev. (1997), 307.
186. Hakura, "The Euro-Med policy: the implications of the Barcelona Declaration", 33 CML Rev. 337; Aghrout and Alexander, supra note 166 at 13.
187. See section of the Declaration on "Partnership in Social, Cultural and Human Affairs: Developing Human Resources, Promoting Understanding Between the Cultures and Exchanges Between Civil Societies".
188. See first and third indents of section of the Declaration entitled "Political and Security Partnership: Establishing a Common Area of Peace and Stability".
189. 6th indent, ibid.
190. Tenth indent of section entitled "Partnership in Social, Cultural and Human Affairs: developing human resources, promoting understanding between the cultures and exchanges between civil societies".
191. Aghrout and Alexander, "The Euro-Med new strategy and the Maghreb countries", 2 EFA Rev. (1997), 307.
192. Hakura, "The Euro-Med policy: the implications of the Barcelona Declaration", 33 CML Rev. 337; Aghrout and Alexander, supra note 166 at 13.
193. See section of the Declaration on "Partnership in Social, Cultural and Human Affairs: Developing Human Resources, Promoting Understanding Between the Cultures and Exchanges Between Civil Societies".
194. See first and third indents of section of the Declaration entitled "Political and Security Partnership: Establishing a Common Area of Peace and Stability". 170. 6th indent, ibid.
195. Tenth indent of section entitled "Partnership in Social, Cultural and Human Affairs: developing human resources, promoting understanding between the cultures and exchanges between civil societies".
196. This approach was recently favoured by A.G. Leger in El-Yassini, supra note 79 at para 33 of Opinion.
197. Libya is part of the Maghreb region. However, due to the long-standing political tensions and difficulties surrounding the EU's international relations with this country, no formal co-operation agreements have yet been signed. However, this situation may well begin to change in the wake of the recent decision by the Council of the European Union in May 1999 to suspend the restrictive economic measures hitherto applied against Libya, after the Libyan Government decided to co-operate with the progress of criminal proceedings in the Netherlands in connection with the bombing of Pan Am flight 103 over Lockerbie, Scotland. See Council's Common Position 1999/261/CFSP O.J. 1999, L 103 (EC Bull. 5/99 at 1 April 1973).
198. At the time of writing only the EMA with Tunisia has entered into force, namely on 1 March 1998.
199. See comments by Hakura (1997), supra note 167 at 351.
200. See Martin and Guild, supra note 1 at p. 282. Of course, EU Member States immigration laws remain subject to the human rights guarantees enshrined in other international instruments, notably the ECHR 1950.
201. See the Joint Declarations relating to Art. 64 in the Moroccan and Tunisian EMAs. The declarations only refer to the possibility of reunion with "spouse and children", and this solely "for the duration of the worker's authorized stay".
202. See Art. 71(1)(a)-(b) of Ch. 3 (Co-operation in the Social Field) of Title VI (Co-operation in Social and Cultural Matters) and Joint Declarations relating to Readmission in the Moroccan and Tunisian EMAs.
203. Art. 66, ibid. This arguably constitutes a weakening of TCN residents' rights, as none of the 1976 agreements expressly excluded illegal aliens from the scope of their provisions. However, it is doubtful that the ECJ would construe references to Maghrebi nationals in these first generation agreements to include illegal aliens, given the clear intentions of the contracting parties to afford only rights to a narrowly defined class of individuals (i.e. migrant workers and their families).
204. The Tunisian and Moroccan EMAs merely envisage the parties at some future unspecified date agreeing to widen the scope of the agreements "to cover the right of establishment of one Party's firms on the territory of the other and liberalization of the provision of services by one Party's firms to consumers of services in the other", the Association Council merely having the power to make recommendations in this regard (see Art. 31).
205. As noted by Cremona, supra note 1 at 95; Martin and Guild, supra note 1 at p. 282.
206. Title III (Co-operation in the field of labour) of the 1976 Co-operation Agreements: Art. 38(1) (Algeria); Art. 40(1) (Morocco); Art. 39(1) (Tunisia).
207. See Art. 64(1) of Moroccan and Tunisian EMAs.
208. See comments supra note 138.
209. See Art. 64(2) of Moroccan and Tunisian EMAs. However, it is not unlikely that the ECJ would include this category of employee within the concept of "worker" in the first generation of cooperation agreements, given the absence of any specific reservations or derogations in the texts.
210. El-Yassini, supra note 79. For comments on this case, see Melis, 36 CML Rev., 1357-1364.
211. Paras. 45-46 of judgment, supra note 79. Even under Art. 39 EC it is clear that stricter measures may be applied to aliens as compared with nationals of the host State, such as expulsion: Case 41/74, Van Duyn, [1974] ECR 1337.
212. Ibid. para 64 of judgment.
213. The ECJ could draw inspiration from its case law in relation to Art. 39 EC, where it has held that unemployed migrant MSNs have the right to seek work in other EU Member States for a "reasonable period" of time: Antonissen, supra note 124.
214. A similar argument could be made in relation to the question of equal access for Maghrebi "workers" and their families to social security benefits (in particular unemployment and family benefits) up until the expiry of the existing work permit. Under the EMA and Maghrebi agreements, the prohibition of discrimination on grounds of nationality is extended to the field of social security. Whether the ECJ will be prepared to interpret "worker" as including those made involuntarily unemployed remains to be seen. Further clarification from the Court is needed on the wider effects of its judgment in El Yassini, supra note 79.
215. The Exchange of Letters on Algerian, Moroccan and Tunisian labour employed in the Community annexed to the 1976 agreements stipulates that the EU Member States were "ready" to exchange views: "to examine possibilities of making progress towards the attainment of equality of treatment for Community and non-Community workers and the members of their families in respect of living and working conditions, having regard to the Community provisions in force. Such exchange of views, which would not be concerned with matters covered by the Agreement would deal in particular with social and cultural questions."
216. See Art. 65 of the Tunisian and Moroccan EMAs, which only grants rights to family members "living with" migrant workers. This confirms that authorization to live with the worker is in the domain of the host State. See also the Joint Declaration relating to Art. 65 attached to the two EMAs, which expressly states: "It is understood that the term 'members of their family' shall be defined according to the national legislation of the host country concerned."
217. Art. 69 of the two EMAs (Chapt. II on Dialogue in Social Matters of Title VI Co-operation in Social and Cultural Matters) states: "1. The Parties shall conduct regular dialogue on any social matter which is of interest to them. 2. Such dialogue shall be used to find ways to achieve progress in the field of movement of workers and equal treatment and social integration for [Tunisian/Moroccan] . . . nationals residing legally in the territories of their host countries. 3. Dialogue shall cover in particular all issues connected with: (a) the living and working conditions of the migrant communities; (b) migration; . . . (c) schemes and programmes to encourage equal treatment between [Tunisian/Moroccan] and Community nationals, mutual knowledge of cultures and civilizations, the furthering of tolerance and the removal of discrimination."
218. E.g. the Declaration attached to the Tunisian EMA by Tunisia on Art. 69 of the agreement states: "-Considering family reunification as a basic right of Tunisian workers residing abroad, - Bearing in mind that this right is a key factor in maintaining the balance of the family and guaranteeing success at school and the children's social and occupational integration, - Notwithstanding the bilateral agreements concluded between Tunisia and certain EU Member States, Tunisia wishes the question of family reunion to be the subject of in-depth discussions with the Community with a view to easing and improving the conditions for family reunion." (Emphasis added). 195. Arts. 39(1), 41(1) and 40(1) of the 1976 Co-operation agreements with Algeria, Morocco and Tunisia respectively, and now replicated in Art. 65(1) of the Moroccan and Tunisian EMAs.
219. See commentaries by Burrows, "Non-discrimination and social security in Co-operation Agreements", 22 EL Rev. (1997), 166;
220. Neuwahl, "Social Security under the EEC-Morocco Co-operation Agreement", 17 EL Rev. (1992), 326.
221. See in relation to Art. 41 of the 1976 Moroccan Co-operation Agreement: Kziber, supra note 38; Youfsi, supra note 79; Hallouzi-Choho, supra note 79; Mesbah, supra note 141. See in relation to Art. 39 of the 1976 Algerian Co-operation Agreement: Krid, supra note 79; Babahenini, supra note 79.
222. Art. 65(1) second para of the Tunisian and Moroccan EMAs specify which social security benefits are covered. This list matches that employed in Art. 4 of Regulation 1408/71 as regards MSN workers, bar any reference to benefits in respect of accidents at work and occupational diseases. Whether or not the ECJ would construe that these benefits are covered under the reference in Art. 65 of the EMAs to the "branches of social security dealing with sickness" (my emphasis) remains doubtful, given that the whole approach of the EU towards accepting TCN integration has been based on the primary holder of immigration rights being able to work. See e.g. Bozkurt, supra note 176 in relation to Turkish workers in the EU.
223. See A.G. Van Gerven's Opinion in Kziber, supra note 38.
224. The German Government unsuccessfully requested the ECJ to reconsider its decision taken in Kziber, supra note 38 and in the subsequent case of Youfsi, supra note 79 (see para 16 of latter judgment).
225. See Kziber, supra note 38: unemployment benefit payable to daughter of retired Moroccan worker; Krid, supra note 79: supplementary OAP allowance paid to widow of Algerian worker; Hallouzi-Choho, supra note 79: OAP benefit payable to spouse of Moroccan pensioner; Babahenini, supra note 79: disability allowance for spouse of retired Algerian worker.
226. Mesbah, supra note 141.
227. This enabled the plaintiff, who was the mother-in-law of and residing with a retired Moroccan worker, to be able to claim invalidity benefit on the same terms as a relative of a retired Belgian worker.
228. Kziber, supra note 38; Youfsi, supra note 79 and Hallouzi-Choho, supra note 79.
229. Prior to its decision in Case C-308/93, Cabanis-Issarte, [1996] ECR I-2097, the ECJ had held that TCN family members under Regulation 1408/71 had rights to access to social security benefits on the same terms as host nationals solely in their capacity as family members, not as individuals in their own right. The "derivative rights" doctrine thus precluded them from accessing a large range of benefits determined on a personal as opposed to family status: see e.g. Case 40/76, Kermaschek, [1976] ECR 1669.
230. See Art. 39(3), 41(3) and 40(3) of the 1976 Co-operation agreements with Algeria, Morocco and Tunisia respectively, and Art. 65(3) of the Moroccan and Tunisian EMAs.
231. See discussion above of Taflan-Met, supra note 99.
232. See e.g. El-Yassini, supra note 79 at paras. 44-61 of the judgment.
233. Mesbah, supra note 141.
234. Case C-369/90, Micheletti v. Delegacion del Gobierno en Canatabria, [1992] ECR I-4239.
235. This accords with the general position under international law in cases of multiple nationality, according to which a State may reserve itself the right to determine a person's effective and genuine nationality: see Nottebohm Case (Liechtenstein v. Guatemala) (Second Phase) ICJ Rep 1955 4.
236. For a general overview of the EMA with Israel, see Hirsch, "The 1995 trade agreement between the European Communities and Israel: three unresolved issues" 1 EFA Rev. (1996), 87.
237. The text of the EMAs with Israel (signed 20 Nov. 1995) and Jordan (signed 24 Nov. 1997) are reproduced in HMSO's UK Treaty Series, European Communities No. 11 (1996) cm3239 and No.3 (1998) cm3946 respectively.
238. Arts. 57 and 63 of the Israeli EMA simply require that the parties will co-operate with a view to "defining areas of mutual interest concerning policies on immigration" and discuss matters of mutual interest as regards "social problems of post-industrial societies". Art. 42 of the Jordanian EMA expressly reserves to the parties the power of stipulating conditions regarding "entry and stay, work, labour conditions and establishment of natural persons and supply of services". It focuses on reducing migratory pressure and combating illegal immigration, rather than addressing TCN residents' issues: see Art. 82(2) of Jordanian EMA and Joint Declaration on the co-operation for the prevention and control of illegal immigration.
239. Art. 64(1) EMA with Israel.
240. Art. 29(1) of Title III (Right of Establishment and Supply of Services) of the Israeli EMA.
241. Art. 29(2), ibid.
242. There is a commitment in Art. 35 of the Association Council examining the steps needed to provide for mutual recognition of qualifications in order to "make it easier for . . . Jordanian nationals to take up and pursue regulated professional activities in . . . the Community". However, this sounds rather hollow given that there is no deadline and no power of the Co-operation Council to take binding decisions in respect of this matter.
243. Art. 30 of Jordanian EMA.
244. Art. 34, ibid. This clause is similar to ones used in various agreements with Central and Eastern European nations, which are considered below (in section 2.4.1).
245. For detailed overviews of the impact of the European Agreements and Partnership and Co-operation Agreements from the viewpoint of immigration rights and controls, see Eisl, "Relations with the Central and Eastern European Countries in Justice and Home Affairs: Deficits and options", 2 EFA Rev. (1997), 351;
246. Guild, A Guide to the Right of Establishment under the Europe Agreements, (1996 Baileys Shaw and Gillett, London);
247. Guild A Guide to the Right of Establishment under the Europe Agreements, ( op. cit. supra note 22 Ch. 9; Martin and Guild, supra note 1 Ch. 16.
248. The Europe Agreements were signed and entered into force on the following dates: Poland and Hungary (16 Dec. 1991 and 1 Feb. 1994); Romania and Bulgaria (8 March 1993 and 1 Feb. 1995); the Czech and Slovak Republics (4 Oct. 1993 and 1 Feb. 1995); Estonia, Latvia and Lithuania (12 June 1995 and 1 Feb. 1998); Slovenia (10 June 1996; 1 Feb. 1999). The texts of the agreements are reproduced respectively as follows: O.J. 1993, L 347/2 and L 348/3; O.J. 1994, L 357/2 and O.J. 1994, L 358/3; O.J. 1994, L 360/2 and 359/2; O.J. 1998, L 68, L 26 and L 51; O.J. 1999 L 51/3.
249. At the time of writing two Advocates General had opined that certain provisions of the Polish, Czech and Bulgarian EAs had direct effect in relation to self-employed migrants. See A.G. Alber's Opinions in Cases C-63/99, R v. Secretary of State for the Home Department, ex parte Gloszczuk and Gloszczuk and C-235/99, R v. Secretary of State for the Home Department, ex parte Kondova, of 14 Sept. 2000 and A.G. Mischo's Opinion in Case C-257/99, R v. Secretary of State for the Home Department, ex parte Barkoci and Malik, of 26 Sept. 2000.
250. See Chapt. IV (General Provisions) of Title IV (Movement of workers, establishment, supply of services) in the EAs: Art. 58(1) re Poland and Hungary; Art. 59(1) re Romania, Bulgaria, Slovakia and the Czech Republic; Art. 57(1) re Slovenia; Art. 56(1) re Latvia and Lithuania; Art. 55 re Estonia.
251. Declaration by the European Community regarding Ch. 1 of Title IV states: "The Community declares that nothing in the provisions of Chapter 1: 'Movement of Workers' shall be construed as impairing any competence of Member States as to the entry into and stay on their territories of workers and their family members".
252. So Martin and Guild, supra note 1 at p. 296.
253. Art. 36(1) first indent of Estonian EA; Art. 37(1) first indent of Polish, Hungarian, Latvian, Lithuanian EAs; Art. 38(1) first indent of Czech, Slovak, Romanian, Bulgarian and Slovenian EAs.
254. This qualification might suggest that the contracting parties have retained sufficient discretion over implementing this provision, an interpretation which would render it insufficiently unconditional for the purposes of determining direct effect.
255. Comparison may be made with the Court's case law in relation to the Turkish and Maghreb agreements as discussed above in sections 3.1.2 and 3.1.3.1 respectively, in which it confirmed the direct effect of non-discrimination provisions in social security matters, notwithstanding the absence of any specific implementing measures taken by the contracting parties.
256. El Yassini, supra note 79.
257. For a similar view, see Martin and Guild, supra note 1 at p. 297.
258. Arts. 37-38 of Estonian EA; Arts. 38-39 of Polish, Hungarian, Lithuanian, Latvian EAs; Arts. 39-40 of Czech, Slovak, Romanian, Bulgarian and Slovenian EAs. See Cremona, supra note 1 at 114.
259. Arts. 40-41 of Estonian EA; Arts. 41-42 of Polish, Hungarian, Lithuanian, Latvian EAs; Arts. 42-43 of Czech, Slovak, Romanian, Bulgarian and Slovenian EAs.
260. Art. 41(3) of Polish EA.
261. See Martin and Guild, supra note 1 at p. 300.
262. Cremona, supra note 1 at 105.
263. Art. 36(1) second indent of Estonian EA; Art. 37(1) second indent of Polish, Hungarian, Latvian, Lithuanian EAs; Art. 38(1) second indent of Czech, Slovak, Romanian, Bulgarian and Slovenian EAs.
264. Joint Declarations by the contracting parties have been attached to each EA clarifying that reference to "children" and "members of their family" are defined in accordance with national legislation.
265. See Peers (1996), supra note 1 at 32.
266. Art. 111 of the Polish EA states: "Within the scope of this Agreement, each Party undertakes to ensure that natural and legal persons of the other Party have access free of discrimination in relation to its own nationals of the competent courts and administrative organs of the Community and Poland to defend their individual rights and their property rights, including those concerning intellectual, industrial and commercial property." This provision is mirrored in Arts. 113 of the Hungarian, Czech and Slovakian EAs, Art. 114 of the Bulgarian EA, Art. 115 of the Romanian EA, Art. 118 of the Estonian EA, Arts. 119 of the Latvian and Slovenian EAs and Art. 120 of the Lithuanian EA.
267. Art. 43 of the Estonian EA; Art. 44(1) of the Lithuanian and Latvian EAs; Art. 44(3) of the Polish and Hungarian EAs; Art. 45(1) of the Romanian and Bulgarian EAs; Art. 45(3) of the Czech, Slovakian and Slovenian EAs. Nationals of Hungary, Estonia and Slovenia are only allowed to take advantage of the right of establishment in their capacity as natural persons as from 1 Feb. 1999, 1 Jan. 2000 and 1 Feb. 2005 respectively: see Arts. 44(4), 43(1)(iii) and 45(4) of the respective EAs.
268. See e.g. Art. 44(4)(a) of Polish EA.
269. Martin and Guild, supra note 1 at p. 14; Staples, supra note 1 at p. 258. This qualification is thought to have been inserted in order to prevent an incentive for the creation of paper companies in central and eastern Europe in order to circumvent EU Member State immigration requirements.
270. Namely, the Romanian, Bulgarian and Baltic EAs.
271. Such as Martin and Guild, supra note 1 at p. 314.
272. Gloszczuk, supra note 223.
273. Barkoci and Malik, supra note 223.
274. Kondova, supra note 223.
275. See especially paras. 76 and 85 of A.G. Alber's Opinions in Gloszczuk and Kondova respectively, and para 22 of A.G. Mischo's Opinion in Barkoci and Malik, supra note 223.
276. See paras. 91 and 100 of A.G. Alber's Opinions in Closzczuk and Kondova respectively, and paras. 69-73 of A.G. Mischo's Opinion in Barkoci and Malik, supra note 223.
277. Art. 48 of Estonian EA; Art. 49 of Latvian and Lithuanian EAs; Art. 50 Slovenian EA; Art. 52 of Polish and Hungarian EAs; Art. 53 of Czech, Slovak, Romanian and Bulgarian EAs.
278. See comments by Martin and Guild, supra note 1 at p. 315.
279. Such individuals are not allowed either to make direct sales to the public or supply services themselves directly. See Art. 51(2) of Estonian EA; Art. 52(2) of Latvian and Lithuanian EAs; Art. 53(2) of Slovenian EA; Art. 55(2) of Polish and Hungarian EAs; Art. 56(2) of Czech, Slovak, Romanian and Bulgarian EAs.
280. The provisions are qualified by being required to be "in step with the liberalization process mentioned in paragraph 1". As this phrase does not appear to amount to a particular pre-condition, but instead mere rhetorical surplusage, the basic commitments would appear to satisfy the usual criteria of precision, clarity and unconditionality for the purposes of direct effect. For an opposing viewpoint, see Martin and Guild, supra note 1 at p. 318.
281. The PCAs which have been signed between the EU and the independent States of the ex-USSR are listed below. (A second date indicates the date of entry into force if applicable). PCA with the Ukraine (14 June 1994), the Russian Federation (24 June 1994; 1 Dec. 1997), Moldova (28 Nov. 1994); Kazakhstan (23 Jan 1995); Kyrgyz (9 Feb. 1995); Belarus (6 March 1995); Armenia, Azerbaijan and Georgia (22 April 1996; 1 July 1999); Uzbekistan (21 June 1996) and Turkmenistan (25 May 1998). The texts of the agreements are reproduced respectively as follows: O.J. 1998, L 49; O.J. 1997, L 327; O.J. 1998, L 181; O.J. 1999, L 196; HMSO EC Treaty Series No 7 (1995) Cm 2972; O.J. 1999, L 239, L 246 and L 205; O.J. 1999, L 229 and HMSO EC Treaty Series No 3 (1999) Cm 4189.
282. See e.g. Art. 72 of Armenian PCA.
283. As contained in Art. 20(1) of the Moldovan PCA: "Subject to the laws, conditions and procedures applicable in each Member State, the Community and the Member States shall endeavour to ensure that the treatment accorded to Armenian nationals legally employed in the territory of a Member State shall be free from any discrimination based on nationality, as regards working conditions, remuneration or dismissal, as compared with its own nationals." This provision is mirrored in the other PCAs: Art. 18 (Turkmenistan); Art. 19 (Kazakhstan, Kyrgyz, Uzbekistan); Art. 20 (Azerbaijan, Georgia); Art. 23 (Belarus, Moldova, Russian Federation); Art. 24 (Ukraine).
284. See e.g. Martin and Guild, supra note 1 at p. 353.
285. See e.g. Art. 28 of the Armenian PCA.
286. The text of the Convention is reproduced in the Official Journal: O.J. 1991, L 229/3.
287. The text of the agreement can be located on the website www.europa.eu.int/ comm/development/cotonou. It will enter into force after approval from the European Parliament and ratification by the Contracting Parties.
288. Art. 13 (Migration) is housed within Title II (The Political Dimension (Arts. 8-13)) of Part 1 (General Provisions) of the Agreement.
289. Art. 13(3) first sentence states: "The treatment accorded by each [EU] Member State to workers of ACP countries shall be free from any discrimination based on nationality as regards working conditions, remuneration and dismissal, relative to its own nationals."
290. Namely, the Joint Declaration of the Contracting Parties on ACP Migrant Workers and ACP students and the Joint Declaration on Workers who are Nationals of one of the Contracting Parties and are legally resident in a territory of a Member State or an ACP State (contained in Annexes V and VI of the Final Act of Lomé IV). Due to fact that equal treatment guarantees were enshrined in declarations attached to rather than in articles within the Fourth Convention, uncertainty exists as to whether any of them are directly effective. See comments and differing views on the declarations, e.g. Martin and Guild, supra note 1 at p. 293 and Peers (1996) supra note 1 at 29. Factors pointing towards direct effect include the fact that they are agreed by all parties, housed within specific Annexes and divided up into specific sections. This arguably reflects a collective intention on the part of the contracting parties to treat them as legally binding norms, and therefore constitute an integral part of the Convention in accordance with Art. 31 of the 1969 Vienna Convention on the Law of Treaties. Some judicial light has recently been shed on this issue by the ECJ; see R v. SSHD, ex parte Manjit Kaur, judgment of 20 Feb. 2001, nyr, where the ECJ pronounced on the legal effects of unilateral declarations adopted by the UK, annexed to the Final Act of the First Treaty of Accession 1972 and 1981 as a result of changes in UK nationality law.
291. E.g. the ECJ had construed the "national treatment" obligations contained in the First Lomé Convention in relation to self-employment to mean non-discrimination as between nationals of ACP countries, rather than between host Member State nationals and ACP residents: see Case 65/77, Jean Razanatsimba, [1977] ECR 2229.
292. Art. 13(2) of the Cotonou Agreement states: "The Parties agree to consider that a partnership implies, with relation to migration, fair treatment of third country nationals who reside legally on their territories, integration policy aiming at granting them rights and obligations comparable to those of their citizens, enhancing non-discrimination in economic, social and cultural life and developing measures against racism and xenophobia."
293. Recitals 7, 8 and 12 in the preamble to the agreement contain a number of references to human rights instruments, notably of the UN and the ILO. Specifically within the context of migration issues, Art. 13(1) reaffirms the contracting parties' existing obligations under international law to ensure respect for human rights, including prohibitions of discrimination based on origin, sex, race, language and religion.
294. Art. 13(5)(c)i obliges ACP States to accept any of its nationals illegally present in a EU Member State "at that Member State's request and without further formalities". This clause, as currently drafted, appears to be incompatible with existing human rights commitments binding on the Community and Member States in relation to deportation and extradition scenarios, as elucidated in particular by the ECtHR in relation to Arts. 3 and 8 of the ECHR 1950.
295. This includes Denmark, France, the Netherlands and the UK, as identified in Annex II of the EC Treaty.
296. Annex II to the Treaty of Rome provides a list of the OCTs.
297. As confirmed by the ECJ in C-100-101/89, Kaefer and Procacci v. France, [1990] ECR I-4667.
298. Art. 183(5) EC: "In relations between Member States and the countries and territories the right of establishment of nationals and companies or firms shall be regulated in accordance with the provisions and procedures laid down in the Chapter relating to the right of establishment and on a non-discriminatory basis, subject to any special provisions laid down pursuant to Article 187."
299. Martin and Guild, supra note 1 at p. 230.
300. Notably, EC Council Directives 73/148, 75/34 and 75/35 on general rights to free movement of the self-employed and their families and Directives 89/48 and 92/51 on mutual recognition of qualifications, as well as all the sectoral directives on liberal professions.
301. Micheletti, supra note 210. In this connection it is interesting to note that the UK Government is in the process of preparing the way for legislation to the effect of granting British Citizenship to cover all its outstanding overseas territories and dependencies, in the wake of Hong Kong having been seceded to China. See the UK Government's White Paper of March 1999 "Partnership for Progress and Prosperity: Britain and the Overseas Territories" (HMSO 1999 cm4264) at pp. 16-19. British Citizenship was granted to Falkland Islanders already in 1983. Possession of nationality of a Member State remains, of course, subject to the qualification contained in Art. 186 EC in respect of migrant OCT workers.
302. See in particular Arts. 63(3)(a) and 63(4) EC.
303. Art. 17(1) EC.
304. Art. 19(2) EC.
305. Art. 18(1)EC.
306. Art. 18(1)EC.
307. Art. 20 EC.
308. See e.g. the Opinions of the A.G.s La Pergola and Jacobs respectively in Martinez Sala, supra note 60 and C-274/96 Bickel and Franz, [1998] ECR I-7637 at 7645.
309. The exceptions concern EEA and Swiss migrant nationals, discussed above, and family members of MSN migrants.
310. Art. 39 EC. Notwithstanding the open-textured nature of the text, the ECJ has held that the reference to "migrant workers" in Art. 39 only refers to workers possessing nationality of a Member State: Case 238/83, Meade, [1984] ECR 2631.
311. Art. 43 EC (establishment) and Art. 49 EC (service provision).
312. See the following Community directives providing migration and residence rights to students, retired persons and those of independent means: Council Directives 93/96 O.J. 1993, L 317/59 (as amended), 90/365 O.J. 1990, L 180/28 and 90/364 O.J. 1990, L 180/26 respectively.
313. Regulation 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community O.J. Sp Ed 1971 (II) (as amended). The Commission has proposed to extend its remit to cover TCN residents (see COM(97)561fin).
314. C-230/97, Criminal proceedings against Ibiyinka Awoyemi, [1998] ECR I-6781.
315. Directive 80/1263 on the introduction of a Community driving licence O.J. 1980, L 375. Directive 91/439 on driving licences, which abolishes the requirement to apply for an exchange of Member State licences, only came into effect in July 1996 (O.J. 1991, L 237/1).
316. See Art. 8(1) of Directive 80/1263. The Directive was silent on the issue of criminal penalties.
317. Case C-193, Criminal proceedings against S Skanavi et al., [1996] ECR I-929.
318. See paras. 26-27 of the judgment.
319. Case C-154/93, Tawil-Albertini v. Ministre des Affaires Sociales, [1994] ECR I-458.
320. O.J. 1978, L 233/1.
321. Case C-319/92, Haim v. Kassenärztliche Vereinigung Nordrhein (Haim I), [1994] ECR I-439. See also the recent preliminary ruling on the issue of State liability relating to this case in C-427/97, Haim v. Kassenärztliche Vereinigung Nordrhein (Haim II), Judgment of 4 July 2000.
322. See e.g. Arts. 10-12 of Regulation 1612/68 O.J. Sp Ed 1968(II) and Art. 1 of Directive 73/148 O.J. 1973, L 172/14. See for a recent illustration of the conditionality and dependency of TCN family members' rights on the MSN migrant under Community law Case C-356/98, Arben Kaba v. SSHD, Judgment of 11 April 2000, nyr.
323. See e.g. Cases C-113/89, Rush Portuguesa, [1990] ECR I-1417 and C-43/93, Vander Elst, [1994] ECR I-3803. See in this connection, Directive 96/71 concerning the posting of workers in the framework of the provision of services O.J. 1997, L 18/1 and the recent Commission document COM(99)3 proposing two directives on the posting of workers who are third country nationals for the provision of cross-border services and on extending the freedom to provide cross-border services to third country nationals established within the Community.
324. Thus, a TCN spouse of a migrant MSN worker currently forfeits his/her Community rights of residence and employment in the event of a divorce (although not in the event of separation): Cases 267/83, Diatta v. Land Berlin, [1985] ECR 567 and C-370/90, R v. IAT, ex parte Secretary of State for the Home Department, [1992] ECR I-4265. All TCN family members similarly lose Community rights to remain and work in the host Member State where the MSN migrant decides to emigrate from that country, bar the limited rights afforded to them in Regulation 1251/70 O.J. Sp Ed 1970 (II) and Directive 75/34 O.J. 1975, L 14/10 in respect of formerly employed and self-employed migrant MSNs.
325. A point that was criticized in the 1997 Report of the High Level Panel on the Free Movement of Persons (The Veil Report) presented to the Commission - especially Chapt. VI (DOC XV/A/1/642/97). See Bull. 3-1997, point 1.1.4.
326. Consider, for instance, the mutually inconsistent reasoning adopted in Case 94/84, Office Nationale de L'Emploi v. Deak, [1985] ECR 1873 with C-243/91, Belgium v. Taghavi, [1992] ECR I-4401.
327. It was only relatively recently in Cabanis-Issarte, supra note 205, that the ECJ abandoned the notion that under Regulation 1408/71 family members should only be entitled to receive rights in their capacity as family members rather than rights in personam.