Abatay v Bundesanstalt fur Arbeit: C-317/01 and C-369/01

[2003] ECR I-12301, [2003] All ER (D) 342 (Oct)

Court: ECJ

Judgment Date: 21/10/2003

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Catchwords & Digest


EUROPEAN COMMUNITY - FREEDOM OF MOVEMENT FOR WORKERS - FREEDOM OF ESTABLISHMENT - FREEDOM TO PROVIDE SERVICES - LEGISLATION OF MEMBER STATE REQUIRING WORK PERMIT IN INTERNATIONAL ROAD HAULAGE SECTOR - ARTICLE 41(1) OF THE ADDITIONAL PROTOCOL - COUNCIL REGULATION (EEC) 2760/72 - COUNCIL DECISION 1/80, ART 13
EUROPEAN COMMUNITY - THE COURT OF JUSTICE - REFERENCE FROM NATIONAL COURT - REFERENCE FOR PRELIMINARY RULING

The applicants were all Turkish nationals residing in Turkey and working as drivers engaged in international haulage, transporting goods from Turkey to Germany in lorries registered in Germany. The applicants subsequently brought proceedings against the respondent federal labour office over its requirement that Turkish drivers had to hold a work permit in Germany in order to carry out international road haulage. The court stayed proceedings and referred to the Court of Justice of the European Communities for a preliminary ruling questions concerning the interpretation of art 41(1) of the Additional Protocol, concluded approved and confirmed by Council Regulation (EEC) 2760/72 (on the Additional Protocol) and art 13 of Council Decision 1/80 (on the development of the Association). The Association Council was set up by the Agreement establishing an Association between the EEC and Turkey, concluded, approved and confirmed by Council Decision (EEC) 64/732 (on the Association Agreement). The aim of the Association Agreement was to secure freedom of movement for workers, to abolish restrictions on freedom of establishment, and to establish services in order to improve the standard of living of the Turkish people and facilitate the accession of Turkey to the Community at a later date. Article 41 of the Additional Protocol prohibited the introduction of any new restrictions on the freedom of establishment and the freedom to provide services. Article 13 of Decision 1/80 provided that member states and Turkey might not introduce new restrictions on the conditions of access to employment applicable to workers and members of their families legally resident and employed in their restrictive territories.
Held - Article 41(1) of the Additional Protocol had to be interpreted as meaning that Turkish nationals were entitled to rely on those provisions before national courts in order to prevent the application of inconsistent rules of national law. Articles 41(1) of the protocol and art 13 of the decision prohibited generally the introduction of new national restrictions on the right of establishment and the freedom to provide services and freedom of movement for workers from the date of entry into force in the host member state of the legal measure of which those articles were part. Article 13 of the decision was applicable to Turkish nationals only if their residence in the territory of the host member state was not only lawful but for a sufficient period to allow them progressively to become integrated there. In circumstances such as those in the main proceedings, art 41(1) of the Additional Protocol was applicable to international road haulage of goods originating in Turkey, where those services were carries out in the territory of a member state. The protection of art 41(1) could be relied on not only by an undertaking established in Turkey which performed services in a member state but also by employees of such an undertaking to preclude a new restriction on the freedom to provide services; however, it might not be relied on to that end by an undertaking established in a member state where those using the services were established in the same member state. Article 41(1) precluded the introduction into the national legislation of a member state of a requirement of a work permit in order for an undertaking established in Turkey to provide services in the territory of that state, if such a permit was not already acquired at the time of the entry into force of the Additional Protocol. It would be for the national court to determine whether the national legislation applied to Turkish national such as the applicants in the instant case was less favourable than that applicable at the time of entry into force of the Additional Protocol.