Demirci and Others (Opinion) [2014] EUECJ C-171/13

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(Request for a preliminary ruling from the Centrale Raad van Beroep (Netherlands))

(EEC-Turkey Association — Decision No 3/80 of the Association Council — Social security of migrant workers — Supplementary benefit allocated on the basis of national legislation — Residence criterion — Article 6(1) of Decision No 3/80 — Exportability of benefits — Recipients holding multiple citizenships — Citizenship of a Member State of the European Union — Article 59 of the Additional Protocol to the EEC-Turkey Association Agreement — Non-preferential treatment clause)

1. This reference for a preliminary ruling concerns the interpretation of Article 6 of Decision No 3/80 of the EEC-Turkey Association Council (‘Decision No 3/80’). (2) That provision prohibits the introduction of residence clauses in relation to the payment of certain types of cash benefit to Turkish workers.

2. More specifically, the case involves the application of that provision to former workers of Turkish nationality who have since obtained the nationality of the host Member State, while at the same time retaining Turkish nationality. The following questions arise: Does acquisition of the citizenship of the host Member State deprive those workers of the rights that would otherwise flow to them by virtue of Article 6? Are those workers still entitled to a supplementary non-contributory cash benefit (ancillary to an invalidity benefit) awarded on the basis of the national legislation of the host Member State (3) even though they have returned to Turkey and that national legislation imposes a residence criterion? If not, at what point in time may the supplementary benefit be withdrawn?

3. On 12 September 1963, an agreement was signed which established an association between the European Economic Community and the Republic of Turkey (‘the Association Agreement’). (4) Article 9 of that agreement lays down a general prohibition of discrimination on grounds of nationality as between the parties to the Agreement.

4. An Additional Protocol to the Association Agreement was signed on 23 November 1970 (‘the Additional Protocol’), (5) Article 39(4) of which ensures that ‘old-age pensions, death benefits and invalidity pension’ can be transferred to Turkey. Under Article 39(5), that provision is not to have any effect on more favourable arrangements bilaterally agreed upon by Turkey and a Member State.

5. Article 59 of the Additional Protocol forbids preferential treatment, stating that in ‘the fields covered by this Protocol Turkey shall not receive more favourable treatment than that which Member States grant to one another …’.

6. On 19 September 1980 the Association Council adopted Decision No 3/80. That decision is designed to coordinate the social security schemes of the Member States so as to entitle Turkish workers, as well as members of their families and their survivors, to benefits in the field of social security.

7. Under Article 2 of Decision No 3/80, the provisions of that decision are to apply, inter alia, ‘to workers who are or have been subject to the legislation of one or more Member States and who are Turkish nationals’.

8. Article 3(1) of Decision No 3/80 ensures equal treatment with respect to ‘the obligations and benefits under the legislation of any Member State’.

9. Article 4 of Decision No 3/80 defines the scope ratione materiae of the instrument. Under point (b) of Article 4(1), the decision is to apply to ‘invalidity benefits, including those intended for the maintenance or improvement of earning capacity’.

‘Save as otherwise provided in this Decision, invalidity, old-age or survivors’ cash benefits and pensions for accidents at work or occupational diseases, acquired under the legislation of one or more Member States, shall not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in Turkey or in the territory of a Member State other than that in which the institution responsible for payment is situated.

11. Regulation No 1408/71 coordinates the social security systems of the Member States in order to guarantee that workers moving within the European Union are always covered by social security legislation.

12. Article 4 delimits the scope ratione materiae of the regulation. Under Article 4(1), Regulation No 1408/71 is to apply to ‘invalidity benefits, including those intended for the maintenance or improvement of earning capacity’.

13. More specifically, Article 4(2a) defines ‘special non-contributory cash benefits’, that is to say, the category in which the benefit at issue in the cases pending before the referring court falls.

14. While Article 10(1) precludes Member States from imposing a residence criterion, Article 10a(1) excludes certain special non-contributory cash benefits from that prohibition. Article 10a(1) reads as follows:

‘The provisions of Article 10 and of Title III shall not apply to the special non-contributory cash benefits referred to in Article 4(2a). The persons to whom this Regulation applies shall receive these benefits exclusively in the territory of the Member State in which they reside and under the legislation of that State, in so far as these benefits are mentioned in Annex IIa. Benefits shall be paid by, and at the expense of, the institution of the place of residence.’

15. By way of amendment introduced by Regulation (EC) No 647/2005, (7) the TW was added to the list of special non-contributory cash benefits in Annex IIa to the regulation. That amendment came into force on 5 May 2005.

16. The TW regulates the award of supplementary benefits in the Netherlands. These benefits are awarded with the aim of ensuring a certain minimum level of subsistence for everyone. In accordance with the TW, the Uitvoeringsinstituut werknemersverzekeringen (Employee Insurance Agency; ‘the Uwv’) is the authority which, upon receiving an application from an individual, determines whether a right to such a supplementary benefit exists.

17. With the Wet beperking export uitkeringen of 27 May 1999 (Law on limitation of the exportability of benefits; ‘the Wet BEU’), a new provision was inserted into the TW which made entitlement to supplementary benefits conditional upon residence in the Netherlands. Thus, as from 1 January 2000, all recipients of a supplementary benefit must reside in the Netherlands.

18. Under the transitional regime put in place by Article XI of the Wet BEU, the payment of benefits under the TW to recipients who had already received a supplementary benefit before the entry into force of the new regime and who were at that time residing outside the territory of the Netherlands was to be phased out by one third every year as of 1 January 2000. The same phasing-out procedure was to be followed as from the year 2007 in respect of EU and EEA citizens after the TW was added to the list in Annex IIa to Regulation No 1408/71.

19. Mr Demirci and five other former migrant workers (‘the respondents’) are Turkish nationals who worked and resided in the Netherlands for several years. Owing to invalidity, they became unable to work and were accordingly awarded an invalidity benefit, (8) as well as a non-contributory supplementary benefit on the basis of the TW. The supplementary benefit in question is designed to ensure that the level of the incapacity benefit brings the income of recipients as close as possible to the minimum wage. Before 2000, the respondents all returned to Turkey, even though they had in the meantime acquired — in addition to their Turkish nationality — Netherlands nationality and thus retained a right to reside in the Netherlands.

20. When the Uwv phased out the supplementary benefit on the basis of the Wet BEU, the respondents appealed against the decisions taken to that effect. Following several court decisions, the Uwv continued the award of the supplementary benefit for several years but ultimately phased it out as from 2004 or 2007, depending on the circumstances.

21. Entertaining doubts as to the legality of the discontinuation of the supplementary benefit, the Centrale Raad van Beroep (Higher Social Security Court) (Netherlands) decided to stay the proceedings and to refer the following questions for a preliminary ruling:

‘(1) In the light of Article 59 of the Additional Protocol, must Article 6(1) of Decision No 3/80 be interpreted as precluding a legislative provision of a Member State, such as Article 4a of the [TW], which withdraws the supplementary benefit awarded on the basis of national legislation if the persons in receipt of that benefit no longer live in the territory of that State, even if those persons, while retaining Turkish nationality, have acquired the nationality of the host Member State?

(2) If, in answering the first question, the [Court] concludes that the persons concerned may rely on Article 6(1) of Decision No 3/80, but that such reliance is restricted by the effect of Article 59 of the Additional Protocol: must Article 59 of the Additional Protocol be interpreted as precluding continuation of entitlement to the supplementary benefit for Turkish nationals, such as the respondents, as from the point in time at which EU nationals can no longer claim entitlement to that benefit on the basis of EU law, even if EU nationals retained that benefit for a longer period of time on the basis of national law?’

22. Written observations in the present proceedings have been submitted by Uwv, Messrs Demirci and Keskin, by the Netherlands Government, as well as by the Commission. At the hearing on 14 May 2014, oral argument was presented by those parties and by Mr Cetin.

23. The web of problems underlying the cases before the referring court (‘the present case’) closely resembles the complicated situation that gave rise to the judgment of the Court in Akdas and Others. (9) In essence, both Akdas and the present case deal with the exportability from the Netherlands of a non-contributory cash benefit (a special supplementary benefit) under the TW in circumstances where that benefit can no longer be exported to other Member States by EU nationals.

24. Nevertheless, one crucial difference exists between the two cases. In Akdas, the former Turkish workers concerned held Turkish citizenship. In the present case, the respondents have obtained, in addition to Turkish citizenship, that of the host Member State. As this case demonstrates, multiple citizenship results in unprecedented interpretative difficulties in relation to Article 6 of Decision No 3/80.

25. Before moving on to examine those difficulties in more detail, it is useful to call to mind that Regulation No 1408/71 has laid down a specific regime for ‘special non-contributory benefits’ since 1992. While such benefits fall within the scope of that regulation, Member States may, in accordance with Article 10a thereof (now Article 70 of Regulation (EC) No 883/2004), (10) reserve such benefits to residents. This is so as long as the benefits concerned are listed in Annex IIa to Regulation No 1408/71 (now Annex X to Regulation No 883/2004). The TW is listed in that annex.

26. Against that background, the Court held in Akdas that, notwithstanding the fact that EU nationals who move from one Member State to another are not entitled to export the supplementary benefits provided on the basis of the TW, that restriction does not apply to Turkish workers. Importantly, the fact that Turkish nationals may export the supplementary benefit in question was not held to be contrary to Article 59 of the Additional Protocol, which precludes more favourable treatment of Turkish nationals as compared with EU nationals. (11)

27. In light of the judgment in Akdas, the question that now arises is what implications the naturalisation of the respondents has for deciding the present case. As attested by the diverging views expressed by the parties that submitted observations, the answer to that question is by no means evident. However, as I will aim to illustrate below, I believe that the situation of the respondents is intrinsically different from that of the Turkish workers in Akdas. After all, they are, as Netherlands nationals, citizens of a Member State of the European Union.

B – The impact of holding the citizenship of a Member State of the European Union

28. For migrant workers, such as Turkish nationals, working in a Member State of the European Union, the acquisition of the nationality of the host Member State undoubtedly represents an important step in reaching the apex of integration. (12) For the reasons that follow, it is my understanding that Decision No 3/80 no longer falls to be applied once a Turkish worker has acquired the nationality of the host Member State. That worker is an EU national in his own right. Consequently, he can no longer pick and choose between the applicable rules according to what appears to be in his best interest in any given situation.

29. It is my understanding that as soon as Turkish nationals who have come to a Member State under the EEC-Turkey Association regime are naturalised in the host Member State, they no longer derive their social security rights from Decision No 3/80. As (fully-fledged) EU nationals, they derive their rights from the legislation of the Member State in question and, where applicable, from EU law. Otherwise, two sets of rules on invalidity benefits would apply at the same time.

30. For example, Decision No 1/80 (13) — an instrument enacted to revitalise and develop trade and economic relations between the Republic of Turkey and the European Union (14) — seeks to improve the social treatment accorded to workers and members of their families under the EEC-Turkey Association regime. (15) In this respect, it is only in their capacity as workers or as members of a worker’s family that Turkish nationals are covered by the Association Agreement and accordingly derive their legal status from Decision No 1/80. (16) That is not the position, under EU law, for workers (or any other category of person for that matter) holding the citizenship of a Member State who have exercised their right to freedom of movement. They derive rights from EU law simply by dint of their citizenship of a Member State of the European Union. (17)

31. That is illustrated by Kahveci, (18) another case on which the respondents rely. Kahveci turned on the proper construction of Article 7 (19) of Decision No 1/80. The point at issue was whether or not family members of Turkish workers who — like the respondents — held dual Netherlands and Turkish nationality, can still invoke that provision once those workers have acquired the nationality of the host Member State.

32. I fully agree with the analysis of Advocate General Sharpston in that case. As regards the workers concerned, it is open to the authorities of a Member State, in their dealings with a worker who has dual nationality, to regard him as having only the nationality of that Member State. (20) However, they cannot ignore the person’s Turkish nationality in their dealings with family members who are not EU nationals. This is so because, from the perspective of the authorities’ relationship with the family member concerned, the worker who holds multiple citizenships continues to be a person of Turkish nationality who is lawfully on the employment market in the Netherlands. Although the worker will derive his rights from his status as a national of the Member State concerned, he continues nonetheless to be a ‘Turkish worker’ within the meaning of Article 7 of Decision No 1/80. In other words: in so far as those workers have gained lawful entry into the Member State in question, the family members can derive rights under Article 7, even if the source of those rights can no longer do so himself, because, when dealing with that person, the authorities of the Member State in question are required to disregard one half of his citizenship status. (21)

33. In that context, a point that should be emphasised is that affording a certain category of EU national (that is to say, those holding both Turkish nationality and that of a Member State) preferential treatment as a result of non-EU nationality would in practice entail distinguishing between different categories of EU national. Thus, allowing exportability (within the European Union) for some EU nationals, but not for others would clearly run counter to the general principle of non-discrimination.

34. Put differently, once Turkish workers such as the respondents acquire the nationality of the host Member State, they quite simply cease to be ‘Turkish workers’ within the meaning of Decision No 3/80 (or, in more general terms, under the Law of the Association). From then on, they no longer derive their rights to social security benefits from the Law of the Association but instead from national law and, where applicable, from EU law.

35. Therefore, it is my understanding that Decision No 3/80 does not fall to be applied in the circumstances of the cases before the referring court, where the workers concerned have obtained the nationality of the host Member State while at the same time retaining Turkish nationality.

36. However, the referring court and the parties that submitted observations have predominantly chosen a different angle from which to approach the interpretative issues underlying the present case, namely from the viewpoint of Article 6 of Decision No 3/80 (and the judgment of the Court in Akdas). For the sake of completeness, I will now go on to show — albeit at the risk of blurring the picture unnecessarily — that, even on the basis of Article 6 of Decision No 3/80 read in conjunction with Article 59 of the Additional Protocol, this case falls to be distinguished from Akdas.

37. In Akdas the Court confirmed that Article 6(1) of Decision No 3/80 has direct effect in relation to persons who fall within the scope ratione personae of the decision. (22) Article 2 of Decision No 3/80 covers, amongst others, workers who have been subject to the legislation of a Member State, and who are Turkish nationals. Assuming that Decision No 3/80 is still applicable, the respondents (like the persons concerned in Akdas) fulfil that criterion: they are Turkish nationals who have been subject to the legislation of a Member State, namely that of the Netherlands. Accordingly, those former Turkish workers should — as a matter of principle — be entitled to rely on Article 6 of Decision No 3/80 to ensure that the supplementary benefit at issue in the main proceedings continues to be paid in Turkey.

38. After the judgment of the Court in Akdas, it is also clear that a supplementary non-contributory cash benefit such as that at issue here falls within the scope ratione materiae of Article 6(1) of Decision No 3/80. (23) As regards, more specifically, the exportability of the benefit in question, the Court accepted that former Turkish workers who have returned to Turkey are still entitled to receive, under Article 6(1) of Decision No 3/80, a social benefit such as that supplementary benefit (even though EU nationals enjoy no corresponding right).(24) The Court reached this conclusion for the following reasons.

39. First, Article 39(4) of the Additional Protocol expressly provides for certain social benefits to be exportable, including old-age pensions and invalidity pensions obtained by Turkish workers under the legislation of one or more Member States. Secondly, as mentioned above, Article 2 of Decision No 3/80 covers Turkish workers who ‘have been subject’ to the legislation of one or more Member States, without further specification. Turkish workers fall within the scope of Decision No 3/80 on the simple basis of having been subject to the legislation of at least one Member State. (25)

40. Thirdly — and perhaps even more fundamentally — to apply in the context of Decision No 3/80 the system currently in force under Regulation No 1408/71 concerning special non-contributory benefits would amount to an amendment of that decision. That, however, is a prerogative reserved to the Association Council.

41. What is of particular interest for present purposes is, however, the status of Turkish nationals after they have stopped working in the host Member State. Relying on the line of authority devolving from Bozkurt, (26) the Court observed that a Turkish national who used to belong to the labour force of a Member State — within the meaning of Article 6 (27) of Decision No 1/80 — is not automatically entitled to remain in the territory of that State following an accident at work. This is so in particular where that accident renders him permanently incapable of work and thus definitively excludes him from the labour market.(28)

42. As the persons concerned in Akdas could no longer be considered to belong to the labour force in any meaningful sense, they were not entitled — on the basis of Decision 1/80 – to remain in the territory of the host Member State. (29) Therefore, for the purposes of Article 59 of the Additional Protocol, the situation of such persons could not usefully be compared to that of EU nationals. This was so, in essence, because EU nationals are entitled — as a result of holding the citizenship of a Member State of the European Union — to move to and to reside in (subject to certain provisos) the territory of other Member States. Thus, EU nationals also retain their right of residence in the Member State which awarded the benefit in question. In other words, they can choose to leave the territory of that State and, for that reason, lose the benefit. But, on the other hand, they also retain the right to return to the Member State concerned.

43. As the considerations of the Court in Akdas make clear, Article 59 of the Additional Protocol operates as a ‘mechanism of last resort’ to ensure that the interpretation of the provisions of the EEC-Turkey Association regime does not unduly treat EU nationals less favourably than Turkish nationals. Article 59 does not, however, constitute an overarching non-discrimination clause that may be invoked by EU nationals in all circumstances where Turkish nationals are afforded rights under the EEC-Turkey Association regime that EU nationals do not enjoy. (30)

44. This point is neatly illustrated by the judgment in Derin. (31) There, the Court held that Article 59 of the Additional Protocol did not preclude an interpretation of Article 7 of Decision No 1/80 according to which a family member of a Turkish worker who lived independently of that worker after reaching adulthood was to retain the right to reside in the host Member State. This was so even though EU nationals did not enjoy a corresponding right under the applicable EU rules.

45. Indeed, that construction was justified on the grounds that the legal status of Turkish nationals (under Article 7 of Decision No 1/80) could not be compared to that of EU nationals (under the system set up by Regulation (EEC) No 1612/68 (32)). The rights flowing from the Law of the Association fell short of those flowing from EU law for EU nationals in a number of ways. (33) Consequently, Article 59 of the Additional Protocol was not considered to stand in the way of granting a right to Turkish nationals that does not exist for EU nationals in such a context. From that judgment it appears that what is of relevance is the overall legal status of Turkish and EU nationals. In other words, Article 59 merely requires that the position of EU nationals cannot — on the whole — be less favourable than that of Turkish nationals in relation to a particular category of rights. (34)

46. Indeed, similarly to the issues underlying Derin, the legal regime set up to coordinate social security schemes put in place by Decision No 3/80 and which was at issue in Akdas is not wholly aligned with Regulation No 1408/71 (now Regulation No 883/2004). While the decision may ensure the exportability of certain benefits, it can reasonably be assumed that it provides for less extensive protection than that flowing from EU citizenship as a whole. (35)

47. Conversely, from the viewpoint of Turkish nationals, where Turkish nationals are considered to be in a situation comparable with that of EU nationals, the application of Article 59 of the Additional Protocol may result in a situation whereby the rights that the Turkish nationals would otherwise have derived from the EEC-Turkey Association regime do not fall to be applied. (36)

48. Does the position of the respondents sufficiently differ from that of the Turkish workers in Akdas? As already explained above, I think it does. However, even at the risk of being repetitive, I will briefly consider those differences in the light of Akdas.

49. In Akdas, the former Turkish workers concerned had become incapacitated in the Netherlands. As a consequence, they no longer belonged to the labour force of the host Member State in a way that would have afforded them a right of continued residence. It seems clear to me that — as the referring court points out — the situation of such Turkish nationals cannot usefully be compared to that of EU nationals, given that the latter are entitled to move around and reside in the territory of the Member States: unlike Turkish workers, EU nationals enjoy the freedom, not only to leave a Member State, but also to return to it. Most importantly perhaps, the nationals of a particular Member State can also always choose not to leave that State in the first place.

50. In the present case, the respondents enjoy the right to reside in the Netherlands precisely because they have acquired the nationality of that State: they have not been compelled to leave the Member State of their other nationality and may always return there if they so wish. If they do so, they will also receive the supplementary benefit. Therefore — under this second line of reasoning — I agree, in particular, with the Commission and the Netherlands Government that the respondents are in a substantially different position as compared with the persons concerned in Akdas. As regards the right of residence of the respondents, they are as a matter of fact on an equal footing with any other EU national. Indeed, they are EU nationals.

51. This alone appears to justify the conclusion that, in the case of the respondents, Article 59 of the Additional Protocol precludes an interpretation of Article 6(1) of Decision No 3/80 that would allow them to export the supplementary benefit in question beyond the borders of the Member State in which the institution responsible for payment is situated. However, given that the respondents rely on the judgment of the Court in Kahveci in their submissions, I will briefly return to that judgment. In essence, the respondents deduce from that judgment that multiple citizenship alone cannot result in the loss of rights otherwise derived from the EEC-Turkey Association regime.

52. I am not convinced that the dicta of the Court in Kahveci can be transposed directly to the present case or that Kahveci offers a helpful point of reference for present purposes. As explained, Kahveci turned on the proper construction of Article 7 of Decision No 1/80 in relation to the rights of family members of Turkish workers. In that context, the Court held that the overarching objective of Article 7 is to further the integration of Turkish workers and the members of their families in the host Member State. (37)

53. The objective pursued by Article 7 of Decision No 1/80 is twofold. On the one hand, it is designed to enable family members to be with a migrant worker. It aims to consolidate, by means of family reunification, the employment and residence situation of the Turkish worker who is already legally integrated in the host Member State. (38) On the other hand, and most fundamentally in my view, that provision seeks to advance the integration of the Turkish migrant worker’s family into the host Member State. The attainment of this objective is ensured by granting the family member concerned the possibility of gaining access to the labour market. The provision thus aims gradually to strengthen the position of the family member in the host Member State so that he can ultimately reach a position independent from the migrant worker. (39)

54. By contrast, Article 6 of Decision No 3/80 is not designed to further family reunification in the host Member State. It ensures (inter alia) that former Turkish workers who have returned to Turkey or moved to a Member State other than that in which the institution responsible for payment is situated remain entitled to certain types of benefit (despite possible residence clauses introduced by the host Member State), such as those at issue before the referring court. It is intended to facilitate the former Turkish worker’s return to, inter alia, Turkey, should he choose to do so.

55. In this sense, the prohibition of residence clauses laid down in Article 6 of Decision No 3/80 can be described as pursuing a ‘compensatory’ objective. That prohibition ensures that former Turkish workers who have been victims of an accident at work or who have suffered from occupational diseases are provided with appropriate compensation for the misfortunes they have suffered in the host Member State. This seems reasonable, given that that State has benefitted from the input of those workers.

56. At first sight, viewed in the light of that objective, the approach I propose may perhaps seem unreasonable. Indeed, the logical conclusion of my approach is that former Turkish workers who have acquired the nationality of the host Member State would stand to lose the rights they would otherwise enjoy under Article 6 of Decision No 3/80. That is what happens if that provision is read in the light of Article 59 of the Additional Protocol.

57. However, that objection overlooks an important point. To reiterate, the Law of the Association offers Turkish workers — generally speaking, at least — less extensive protection than EU law offers to EU nationals. While loss of the right to export certain benefits may certainly appear unfortunate, naturalisation in the host Member State conveys other rights that are not available to workers who hold only Turkish citizenship. In this respect, the social security rights enjoyed by a naturalised former Turkish worker in the position of the respondents are fully comparable to those of (other) EU nationals (and, in this case, to those of other Netherlands nationals). This is not so in the case of former Turkish workers who have not obtained the nationality of the host Member State (as was the case in Akdas).

58. Moreover, as some of the parties who submitted observations have pointed out, exportability of the supplementary benefit to Turkey may be regained by relinquishing Netherlands nationality. True, that solution may seem problematic if measured against the objective of ensuring the integration of Turkish workers in the host Member State. It could discourage those workers from taking the nationality of the host Member State. However, I am not persuaded that the risk of losing a supplementary benefit such as that at issue in the present case would in practice have the deterrent effect alleged. That is because, as was mentioned above, the nationality of the host Member State conveys other rights (including that of free movement) that are derived from citizenship of a Member State of the European Union.

59. Accordingly, even following the interpretative path chosen by the referring court, the substantive result would be the same. Thus, it is my view that Article 6(1) of Decision No 3/80, read in the light of Article 59 of the Additional Protocol, cannot be construed as precluding a legislative provision of a Member State which withdraws the supplementary benefit awarded on the basis of national legislation in circumstances where the persons in receipt of that benefit no longer reside in the territory of that State and where those persons, while retaining Turkish nationality, have acquired the nationality of the host Member State.

60. Given the above considerations, the question arises as to the date from which payment of the supplementary benefit may be terminated. That issue is addressed next.

D – The appropriate time for terminating payment of the supplementary benefit

61. As with the first question referred, the second is framed in terms of Article 59 of the Additional Protocol. More specifically, the referring court asks whether that provision precludes the continued payment of supplementary benefit to the respondents when EU nationals in the same circumstances (who have returned to their country of origin) can no longer claim entitlement to that benefit on the basis of EU law.

62. As attested by both the written observations and the oral pleadings, considerable confusion exists as to the correct comparator in this context. In that regard, one of the facts on which special emphasis has been placed is the fact that EU nationals — who at the time when the residence criterion was introduced were residing in other Member States — nonetheless retained that benefit during a transitional period on the basis of national legislation. (40)

63. Be that as it may, I wish to make it clear that what we are dealing with here, in reality, are Netherlands nationals who have moved from the Netherlands to a third country and who wish to export (or, indeed, have exported) the supplementary benefit from that Member State beyond the borders of the European Union. It is therefore my firm conviction that the appropriate comparator is not an EU national (for example, a German) returning to his country of origin after having worked in the Netherlands. Instead, the respondents must be compared with any other Netherlands national who wishes to export the supplementary benefit to a third country (be it Turkey or any other country).

64. In those circumstances, it is my understanding that determining the appropriate time at which to terminate payment remains purely a matter of national law and the key to resolving it is not to be found in an interpretation of Article 59 of the Additional Protocol. (41) Put differently, given that we are dealing with Netherlands nationals exporting the supplementary benefit to a third country, there seems to be no apparent connection to EU law. The respondents have not exercised their right to freedom of movement within the European Union. (42)

65. Accordingly, I do not believe that, in the circumstances of the present case, Article 59 of the Additional Protocol offers an appropriate yardstick for determining the time for terminating payment of the supplementary benefit in question. That is a matter of national law, to be determined by the national court.

66. In the light of the foregoing considerations, I propose that the Court answer the questions referred by the Centrale Raad van Beroep as follows:

(1) Decision No 3/80 of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families does not fall to be applied in the circumstances of the cases before the referring court, in which the persons concerned have obtained the nationality of the host Member State while at the same time retaining Turkish nationality.

(2) In those circumstances, determining the time for the termination of the payment of the supplementary benefit is a matter of national law, and therefore for the national court to decide.

2 – Decision of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families (OJ 1983 C 110, p. 60).

3 – Toeslagenwet of 6 November 1986 (Law on supplementary benefits; ‘the TW’).

4 – This agreement was concluded, approved and confirmed on behalf of the Community by the Council of the European Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113, p. 1).

5 – The Additional Protocol was signed in Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1977 L 361, p. 60).

6 – Council Regulation of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971(II), p. 416), as amended.

7 – Regulation of the European Parliament and of the Council of 13 April 2005 amending Council Regulations (EEC) No 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 and (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ 2005 L 117, p. 1).

8 – This was awarded on the basis of the Wet op de arbeidsongeschiktheidsverzekering (Law on invalidity benefits).

10 – Regulation of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1).

12 – See Opinion of Advocate General Sharpston in Kahveci, C-7/10 and C‑9/10, EU:C:2011:673, points 61 to 63, on the notion of integration in the host Member States and the complexities involved in that process.

13 – Decision of the Association Council of 19 September 1980 on the development of the Association.

14 – This aim is expressed in the first recital in the preamble to that decision.

16 – Opinion of Advocate General Bot in Ziebell, C‑371/08, EU:C:2011:244, point 49.

17 – See, by analogy, Micheletti and Others, C‑369/90, EU:C:1992:295. In that case, the Court held that the Spanish authorities were required to treat a person with dual Argentinian and Italian nationality as an EU national. In my view, it can be deduced from that judgment that, in their dealings with those of their own nationals who hold multiple citizenship (such as in the present case), the competent authorities of the Member State in question must regard those persons as having the nationality of that State.

19 – Article 7 governs the rights of family members of Turkish workers legally resident in the host Member State. It states, inter alia, that such family members are entitled to respond to any offer of employment after they have been legally resident for at least three years in that Member State and that they are to enjoy free access to any paid employment of their choice, provided they have been legally resident in the host Member State for at least five years.

20 – Indeed, as is well known, Member States retain the power to lay down the conditions for the acquisition and loss of their nationality. The same applies as regards the exercise by the Member States of their powers in the sphere of nationality generally. However, that is subject to the proviso that those powers must be exercised in conformity not only with EU law but also international law.

21 – Opinion of Advocate General Sharpston in Kahveci, EU:C:2011:673, point 74. This reasoning seems to be accepted — at least implicitly — by the Court (see paragraph 35 of the judgment in that case). According to the Court, the overarching aim of Decision No 1/80 — to improve the social treatment of Turkish workers in the host Member State — ‘would be impeded if acquisition of the nationality of the host Member State were to require a worker who retains Turkish nationality to forego the benefit of the conditions which promote family reunification in the host Member State’.

25 – The situation is somewhat different for the family members of those workers. In fact, in accordance with the second indent of Article 2 of Decision No 3/80, that decision is to apply to ‘the members of the families of these workers, resident in the territory of one of the Member States’.

27 – Article 6 governs the conditions of actual employment in the host Member State, which are designed to contribute to the gradual integration of the Turkish worker concerned in the host Member State. In accordance with that provision, a Turkish worker duly registered as belonging to the labour force of a Member State is entitled in that Member State, after one year’s legal employment, to the renewal of his permit to work for the same employer, if a job is available. After three years’ legal employment in a particular Member State, such a worker is entitled to respond — provided that certain other conditions are met — to another offer of employment. Finally, after four years of legal employment, the person concerned is to enjoy free access in the Member State concerned to any paid employment of his choice.

29 – EU:C:2011:346, paragraph 94. On that basis, the persons concerned had not left the host Member State of their own choice and without legitimate reason. Indeed, it is settled law that leaving without legitimate reason may lead to the loss of rights acquired under the EEC-Turkey Association regime. See, in this respect, Er, C‑453/07, EU:C:2008:524, paragraph 30. See also Genc, C‑14/09, EU:C:2010:57 paragraph 42.

30 – Indeed, as two commentators have put it, ‘the two categories are subject to different legal regimes that have a different legal basis and are governed by different legislators’. See Eisele, K., and van der Mei, A., ‘Portability of Social Benefits and Reverse Discrimination of EU Citizens vis-à-vis Turkish Nationals: Comment on Akdas’, 37(2012) European Law Review, pp. 204 to 212, at p. 211.

32 – Regulation of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968(II), p. 475).

33 – See, in particular, Derin, EU:C:2007:442, paragraphs 62 to 67. See also point 52 of the Opinion of Advocate General Bot in Ziebell, EU:C:2011:244, concerning the status of EU nationals moving from one Member State to another.

35 – It is true that both Decision No 3/80 and Regulation No 1408/71 are designed to ensure the coordination of social security schemes in situations of worker mobility. However, while the decision makes reference to most of the benefits mentioned in Regulation No 1408/71, it does not cover, unlike the regulation, unemployment benefits. It is also interesting to observe that the judgment of the Court in Akdas prompted a Commission proposal to amend Decision No 3/80 and to include in the new decision a rule concerning the non-exportability of special non-contributory cash benefits. See Commission proposal, 30 March 2012, COM(2012) 153 final, p. 8.

36 – I will return to this issue in point 55 et seq. below. As regards the relevant case-law of the Court, see, for example, Soysal and Savatli, C‑228/06, EU:C:2009:101, and order in Commission v Netherlands, C‑92/07, EU:C:2007:402.

37 – See EU:C:2012:180, paragraph 33. See also Opinion of Advocate General Sharpston in Kahveci, EU:C:2011:673.

38 – See, to that effect, Kahveci, EU:C:2012:180, paragraph 32 and case-law cited.

40 – As mentioned above, the exportability of the supplementary benefit within the European Union has been restricted since 5 May 2005, the date of the entry into force of Regulation No 647/2005. After that date, national transitional rules (providing for a progressive phasing out period) have been applied in relation to other EU Member States.

41 – In that regard, it emerges from the order for reference that the payment of the supplementary benefit to recipients who had already received such a benefit before the entry into force of the new regime and who were then residing outside the territory of the Netherlands was to be phased out progressively as of 1 January 2000.

42 – Had that been the case, a right to exportability could be derived from EU law only until 5 May 2005. From that date on, different bilateral arrangements have been applied.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Demirci and Others (Opinion) [2014] EUECJ C-171/13_O (10 July 2014) URL: http://www.bailii.org/eu/cases/EUECJ/2014/C17113_O.html Cite as: ECLI:EU:C:2014:2073, [2014] EUECJ C-171/13_O, EU:C:2014:2073

Court of Justice of the European Communities (including Court of First Instance Decisions)