Ankara Law Review Vol. 7 No. I (Summer 2010), pp. 1-28
EQUAL TREATMENT OF MIGRANT TURKISH
CITIZENS IN THE EU: CONTRASTING THE KAHVECİ
CASE WITH THE OLYMPIQUE LYONNAIS CASE
Prof. Dr. Christa Tobler^ABSTRACT
Equal treatment on the grounds of nationality is a key concept in the law relating to the Ankara Association of Turkey with the European Union. The Kahveci case, decided by the Court of Justice in 2008, deals with the prohibition on discrimination against Turkish workers duly registered as belonging to the labour force of the EU Member States with respect to remuneration and other conditions of work. The case concerns professional sport (football). The present article compares the judgment in this case with another football case decided by the Court of Justice in 2010 under EU law, namely Olympique Lyonnais. However, this case concerned the prohibition of restrictions of free movement, rather than of discrimination on grounds of nationality. Could this much broader concept also be relevant in the context of the Ankara Association?
ÖZ
Vatandaşlık temelinde eşit muamele, Türkiye ile Avrupa Birliğinin Ankara ortaklığına ilişkin hukukunda bir ana kavramdır. 2008 yılında Adalet Divanınca karara bağlanan Kahveci davası, bir AB üye devletinin işgücü piyasasına yasal olarak dâhil bulunan Türk işçilerine yönelik ücret ve diğer çalışma koşulları bakımından ayrımcılık yasağı ile ilgilidir. Bu dava, profesyonel spor (futbol) İle alakalıdır. Bu makale, bu davadaki karar ile Adalet Divanı tarafından 20î O
LL.M. Europa Institutes of the Universities of Basel (Switzerland) and Leiden (Netherlands).The author wishes to thank her assistant at Basel University, Ms Bozena Hagen, for her collaboration in preparing the materials for this article and for drafting certain parts of the article. The author further wishes to thank her Leiden colleagues Ms Narin Idriz (Narin Tezcan), Prof. Christophe Hillion and Prof Stefaan Van den Bogaert for their comments on previous drafts of this article.
Ankara Law Review Vol. 7 No. 1
yılında AB hukuku uyarınca karara bağlanan bir başka futbol davası olan Olympique Lyonnais davasını karşılaştırmaktadır. Bununla birlikte, bu dava, vatandaşlık temelinde ayrımcılık yasağından ziyade; serbest dolaşıma yönelik kısıtlamalar üstündeki yasak ile ilgili bulunmaktadır. Oldukça geniş bu kavram, Ankara ortaklığı bağlamında da alakalı olabilecek midir?
Keywords: Association of Turkey with the European Union, workers, equal treatment, restrictions, professional sport
Anahtar Kelimeler: Türkiye'nin Avrupa Birliği ile ortaklığı, işçiler, eşit muamele, kısıtlamalar, meslek olarak spor
I. INTRODUCTION
Turkey is associated with the European Union through the so-called Ankara Agreement^ (AA), which was signed in Ankara in 1963. Article 2 of the Ankara Agreement states that the aim is to promote the continuous and balanced strengthening of trade and economic relations between the parties. Together with an important Additional Protocol"* and the decisions taken by the Association Council, the Ankara Agreement forms the legal framework for a close and long-standing relationship between the EÜ and Turkey. Of particular importance is the Customs Union between Turkey and the EU that became operational on 1 July 1996, based on a decision by the Association Council.'* It is also through decisions by the Association Council that the position of Turkish migrant workers in the EU is regulated. At present, the main decision in this context is Decision 1/80.^
Importantly, the law from the Ankara Association does not concern only the parties to the Ankara Agreement, i.e. the Turkish State, on the one hand, and the EU*' and its Member States, on the other hand. Rather, the legal framework created by the Ankara Agreement and its related instruments also immediately concerns individuals, in particular Turkish nationals. Where national law is not
^ Agreement establishing an Association between the European Community and its Member States, of the one part, and the Republic of Turkey, of the other part, signed in 1963, OJ 217 of 29 December 1964, p. 3687 (German. Italian, French, Dutch), OJ 1973 C 113/1 ("Ankara Association Agreement").
^ Additional Protocol, signed on 23 November 1970 in Brussels and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972, OJ 1973 C 133/17 (2008).
^ Decision 1/95 of the Association Council of 22 December 1995, OJ 1996 L 35.
^ Decision 1/80 of the Association Council of 19 September 1980, not published in the Official Journal.
*• Since the entry into force of the Lisbon Treaty, the EU has succeeded the EC, which was the original signatory to the Agreement, though at the time under its original name of 'European Economic Community' (EEC).
2010 Equal Treatment of Migrant Turkish Citizens in the EU 3
in line with the law of the Ankara Association, individuals disadvantaged by this situation may be able to rely directly on the relevant provision. Accordingly, the rights enjoyed by individuals in this framework are of particular importance. The present article focuses on one particular aspect of these rights, namely the right to equal treatment in relation to the nationality of migrant Turkish workers in the EU Member States, or, to put it differently, the right to be free from discrimination on grounds of nationality. This article discusses the issue by contrasting two decisions of the Court of Justice of the European Union: KahveciJ a July 2008 case conceming a Turkish footballer (soccer player) who worked in Spain and experienced discrimination on grounds of nationality, and Olympique Lyonnais,^ a March 2010 case conceming a French footballer who wished to work in the UK and deaU with a restriction (rather than equal treatment/discrimination). Both cases reached the Court in 2008. Quite apparently, the Court found Kahveci quite easy and decided it quickly, as reflected by the date of the judgment and the use of the simplified preliminary procedure. For Olympique Lyonnais, the Court took more time, using the ordinary preliminary ruling procedure but sitting as the Grand Chamber (which indicates the importance of the case).
Before turning to the issue of equal treatment and to the two cases just mentioned, it should be added that besides equal treatment, Turkish migrant workers are also granted other rights under the Ankara Association. Particularly important is the right under Decision 1/80 to a work pemiit and to residence in an EU Member State under certain conditions, as well as rights of certain family members of Turkish workers. However, these family member issues are not discussed in the present paper, which focuses on the equal treatment of workers. Further, Decision 1/80 prohibits the introduction of new restrictions on the conditions of access to employment applicable to workers and members of the families legally resident and employed in the respective territories of the parties. This so-called 'standstill provision' will be mentioned later, when contrasting the prohibition of discrimination on grounds of nationality with that of restrictions.^ For a very useful and interesting account of the Court's case law on free movement of persons between Turkey and the EU in general, the article by Tezcan/Idriz in the Common Market Law Review is particularly recommended.'
Case C-152/08 Real Sociedad de Futbol SAD, Nihat Kahveci v Consejo Superior de Deportes.
Real Federacion Espanola de Futbol [2008] ECR 1-6291. The text of the Court's judgments are available at http://curia.europa.eu/junsp/cgi-bin/form.pi?Iang=en or http://eurlex.europa.eu/ RECHmenu .do? ihm lang=en.
Case C-325/08 Olympique Lyonnais SASP v Olivier Bernard and Newcastle United FC, judgment of 16 March 2010 (Grand Chamber).
^ Most recently e.g. Case C-462/08 Ümit Bekleyen v Land Berlin,'}\iĞ%mcni of 2\ January 2010. '" Narin Teczan/Idriz, Free movement of persons between Turkey and the EU: To move or not to
Ankara Law Review Vol. 7 No. 1 11. EQUAL TREATMENT FOR MIGRANT WORKERS
Like in EU law, equal treatment on the groimds of nationality is a key concept of the law stemming from the Ankara Association, and like in EU law it can be found in different contexts and on different levels of law. On the most general level. Article 9 AA states the principle in a general manner:
The Contracting Parties recognise that within the scope of this Agreement and without prejudice to any special provisions which may be laid down pursuant to Article 8, any discrimmation on grounds of nationality shall be prohibited in accordance with the principle laid down in Article 7 of the Treaty establishing the Community.
Under present EU law, the reference in this provision to "Article 7 of the Treaty establishing the Community" must be read as concerning Article 18 of the Treaty on the Functioning of the European Union (TFEU), which, following the Lisbon revision, is the new name of the revised European Community (EC) Treaty).
Regarding the legal position of migrant workers, two provisions hi particular are relevant, namely Article 37 of the Additional Protocol and Article 10(1) of Decision 1/80." As will be seen later, both of them are relevant to the Kahveci case. Article 37 of the Additional Protocol provides:
As regards conditions of work and remuneration, the rules which each Member State applies to workers of Turkish nationality employed in the Community shall not discriminate on grounds of nationality between such workers and workers who are nationals of other Member States of the Community.
This is repeated in Article 10(1) of Decision 1/80 of the Association Council:
As regards remuneration and other conditions of work, the rules which the Member States of the Community apply to Turkish workers duly registered as belonging to their labour forces shall not in any way discriminate on grounds of nationality between such workers and Community workers.
Again, following the Lisbon revision, the references to the "Community" in these provisions must be read as concerning the European Union, which, since
' Decision 1/80 further contains a non-discrimination provision concerning the access to education for children of Turkish workers, namely Art. 9. Also. Decision 3/80 on social security (OJ 1983 C 110/60) contains a prohibition of discrimination on grounds of nationality, namely Art. 3(1).
2010 Equal Treatment ofMigrant Turkish Citizens in the EU 5
the entry into force of the Lisbon Treaty, has replaced and succeeded the European Community.
Article 37 of the Additional Protocol and Article 10(1) of Decision 1/80 must be read in the context of other provisions of the Ankara Association concerning the free movement of persons. The starting point in this regard is Article 12 AA, which envisages the introduction step-by-step of the free movement of persons. Following the entry into force of the Ankara Agreement, this was attained through decisions of the Council of Association set up under the Agreement, although only to some extent. Under the decision at present in force, namely the already mentioned Decision 1/80, Turkish workers do not have an original right to freely access the labor market of an EU Member State. Rather, admitting them is a matter for the national law of the Member States. However, once a Turkish worker is lawfully established in the EU, Article 6(1) of Decision No 1/80 provides for certain rights in relation to the access to employment:
Subject to Article 7 on free access to employment for members of his family, a Turkish worker duly registered as belonging to the labor force of a Member State:
-shall be 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;
-shall be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of Member States of the Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment services of that State, for the same occupation;
-shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment.
In this respect, the situation is different under EU law where migrant workers with the nationality of an EU Member State enjoy the right to market access under Article 45 TFEU, as well as the right to movement and residence under Directive 2004/38/EC.'^ According to Article 45(1), "[fjreedom of movement for workers shall be secured within the Union." Article 45(2) specifies that the freedom of movement "entails the abolition of any discrimination based on nationality between workers of the Member States as
' Directive 2004/38/EC on the right of citizens of the Union and their families members to move and reside freely within the territory of the Member States, OJ 2004 L 158/77 (as corrected).
Ankara Law Review Vol. 7 No. 1
regards employment, remuneration and other conditions of work and employment." Regulation 16l2/68/EC'^ further specifies the areas in which equal treatment is called for. In addition to equal treatment and in the context of market access, Article 45 also guarantees the right of free movement to not be burdened with other restrictions. This is not evident from the wording of the provision which does not mention the term 'restriction,' but is based on the case law of the Court of Justice.''' As will be seen later, the prohibition of restrictions is at the basis of the Court of Justice's decision in the Olympique Lyonnais case.
m . EQUAL TREATMENT OF TURKISH WORKERS:
TWE. KAHVECI CAS^
A. The facts of the ^a/ive« case
Mr Kahveci, a Turkish national, lived in Spain and worked as a professional footballer for the club Real Sociedad de Futbol SAD. Holding a work permit and a so-called non-Community player's license, Mr Kahveci applied through his club to Real Federaciân Espanola de Futbol (RFEF) for a professional Community player's licence. By decision of 5 February 2002, based on the RFEF's General Regulations in conjunction with the agreement concluded on 28 May 1999 between the RFEF and the National Professional Football League, the RFEF refused Mr Kahveci's application. The rules in question limit the number of players who may have the nationality of a country not belonging to the European Economic Area {EEA, i.e. the Member States of the European Union as well as Norway, Iceland and Lichtenstein) in national competitions.
Mr Kahveci appealed the RFEF decision to the Consejo Superior de Deportes (Higher Sports Council). He argued that the above-mentioned rules are contrary to European law in that a Turkish footballer in his situation has the right to be treated in the same way as EU/EEA nationals (i.e. no limits in numbers) under Article 37 of the Additional Protocol and under Article 10(1) of Decision 1/80. When his appeal was dismissed, Mr Kahveci brought an action to the Tribunal Superior de Justicia de Madrid. The Tribunal decided to stay the proceedings and requested from the Court of Justice a preliminary ruling on the following question:
Does Article 37 [of the Additional Protocol] preclude a sporting federation from applying a rule to a professional sportsman of Turkish nationality, lawfully employed by a Spanish football club, as in the main proceedings, under which clubs may use only a limited number of
13
Regulation 1612/68/EEC on freedom of movement for workers within the Community, OJ, English Special Edition, 1968(11), p. 475.
2010 Equal Treatment of Migrant Turkish Citizens in the EU 7
players from non-member States not belonging to the European Economic Area in national competitions?
B. The Court's Judgment
In answering this question, the Court reUed heavily on two previous judgments in similar cases, namely Kolpak^^ and Simutenkov, both of which
also concerned sports and equal treatment, ahhough in a context different from the Ankara Agreement.'^ The reason for the Court's reference to these cases is the fact that the wording of Article 37 of the Additional Protocol is very similar to the non-discrimination provisions in the (former) Europe Agreement with Slovakia'^ (which was at issue in Kolpak) and in the EU-Russia Cooperation and Partnership Agreement'^ (which was at issue in Simutenkov). According to this previous case law, rules according to which clubs are authorized to field, during league or cup matches, only a limited number of players from non-member countries that are not parties to the Agreement on the European Economic Area (EEA), were contrary to the prohibitions of discrimination on grounds of nationality under the agreements mentioned. Rules on the number of players in matches fall under the term 'working conditions' since they directly affect the participation in matches of a professional player, national of non-EEA member country, who was already legally employed in the host Member State.^'* A further part of the judgment in the Kahveci case concerns the direct effect of Article 37 of the Additional Protocol, i.e. the possibility of an individual to rely on this provision before a national court in an EU Member State where the national law is contrary to the Ankara Association law."' Again drawing an analogy to its judgments in Kolpak and Simutenkov, the Court found that Article 37 is directly effective since it is clear, precise and unconditional. The Court
'^ Case C-438/00 Deutscher HandballbundeV v Maws Kolpak [2003] ECR 1-4135.
^^ Case C-265/03 Igor Simutenkov v M'misterio de Educacion y Cullura and Real Federacidn
Espanola de Fûtbo\ [2005] ECR 1-2579.
'"'/Ca/ive'cj, para. 21.
'^ Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Slovak Republic, of the other part, signed in Luxembourg on 4 October 1993 and approved on behalf of the Communities by Decision 94/909/ECSC, EEC, Euratom of the Council and the Commission of 19 December 1994, OJ
1994 L 359, p. 1.
" Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part, signed on 24 June 1994, OJ 1997 L 327/3.
^^ Kahveci, para. 24.
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recalled that in previous case law {Wahiergruppe Gemeinsam) the same had already been held in relation to Article 10(1) of Decision 1/80. It added that the finding of direct effect is consistent with the objectives of the Ankara Agreement. Overall, the Court concluded that
the prohibition on all discrimination against Turkish workers duly registered as belonging to the labour force of the Member States with respect to remuneration and other conditions of work, as laid down in Article 37 of the Additional Protocol and 10(1) of Decision No 1/80, must be interpreted as precluding the application to a professional sportsman of Turkish nationality legally employed by a club established in a Member State, of a rule laid down by a sports association in that State, that clubs are authorised to field in competitions organised at national level only a limited number of players from non-member States which are not parties to the Agreement on the European Economic Area.'"^
It should be added that because there was previous case law on the same legal issue, the Court was able to make use of the simplified preliminary ruling procedure, as provided for by the first subparagraph of Article 104(3) of the Court's Rules of Procedure.^'^ The simplified preliminary ruling procedure is for 'easy' cases, i.e. cases where a question referred for a preliminary ruling is identical to a question on which the Court has abeady ruled, where the answer to such a question may be clearly deduced from existing case law or where the answer admits of no reasonable doubt. To some extent, this implies that in fact a reference for a preliminary ruling may not have been necessary, if the Court nevertheless accepts the reference, it is in view of the broad discretion of the national courts İn determining whether a reference İs necessary. The Court of Justice reserves the right to refuse to answer questions for a preliminary ruling on the interpretation of EU law only where they are unnecessary, hypothetical or are not accompanied by sufficient information about the facts or the national legal context of the case.^^ The choice of the simplified preliminary ruling procedure means first of all that even though the case was assigned to an Advocate-General (in the case of Kahveci, Advocate General Poiares Maduro), no written opinion was published. Further, no oral hearing was held and the
^^ Case C-171 /01 Wahiergruppe "Gemeinsam Zajedno/Birlikte Alternative und Griine Gewerkschafterlmien/UG"[2Q0i] ECR İ-4301.
"^ Kahveci, para. 32.
^'' Rules of procedure of the Court of Justice of the European Union, OJ 1983 L 43/1 {as amended).
" See e.g. Christa Tobler and Jacques Beglinger, ESSENTIAL EU LAW IN CHARTS 22 (2"'' edition, Budapest; HVG-Orac, 2010).
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Court issues its ruling in the form of a 'reasoned opinion,' rather than that of a 'judgment.'
C. The meaning of the right to equal treatment
The brief summary above shows that the Court's decision in the Kahveci case is unsurprising given the previous case law in similar cases concerning agreements with other third countries. These cases in turn mirrored existing case law relating to EU law, in particular the famous cases of Walrave and Koch^^ of 1974 and Bosman^^ of 1995, both of which also concerned nationality clauses.
As for the meaning the legal concept of equal treatment, it needs to be remembered that in any concrete case concerning alleged discrimination, three issues must be examined:
- First, does the case fall within the field of application of the non-discrimination provision in question?
- Second, does the case entail discrimination within the meaning of this provision?
- Third, does the law provide for a possibility of justification?
The Kahveci ruling is either very brief on these matters (scope, right to non-discrimination) or does not address it all (justification). The following remarks are intended to provide some additional information in the specific context of Art. 37 of the Additional Protocol and Art. 10(1) of Decision 1/80, which were at issue in the Kahveci case.
1. The scope of Article 37 of the Additional Protocol and of Article 10(1) of Decision 1/80
As has been already noted, the prohibition of discrimination on grounds of nationality in Article 37 of the Additional Protocol applies to "workers of Turkish nationality employed in the Community [now: Union]." Similarly, Article 10(1) of Decision 1/80 applies to "Turkish workers duly registered as belonging to the [...] labour forces [of an EU Member State]." As for the term 'worker,' its meaning is the same as under EU law^*^ and denotes a person who.
Case 36/74 B.N.O. Walrave and L.J.N. Koch v Association Union cycliste inlernationale. Koninklijke Nederlandsche Wielren Unie ei Federacion Espanoia CicHsmo [1974] ECR 1405.
Case C-415/93 Union royale beige des societes de football association ASBL v Jean-Marc
Bosman [1995] ECR 1-4921.
See Wahlergnippe Gemeinsam, para. 72 (wbere the Court held that when determining the scope
of Art. 10(1) of Decision 1/80, reference must be made to the interpretation given to the principle of non-discrimination under tbe free movement for workers under EU law).
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for a certain period of time (that is, on a permanent as opposed to a temporary basis), performs services for and under the direction of another person in return for which he or she receives remuneration.^'^ This was undoubtedly so in the case of Mr Kahveci who was employed by the football club Real Sociedad de Futbol. Further, Mr. Kahveci was duly registered as belonging to the labor force of a Member State. Neither of these issues was contested.
Also not contested was the applicability of Article 37 of the Additional Protocol and Article 10(1) of Decision 1/80 in the particular context of professional sport. The reason for this is that this issue has long been settled in previous case law concerning what is now Article 45 TFEU, including most notably Walrave and Koch^° and Bosman^^ which formed the background for the Court's case law on professional and semi-professional sports under bilateral agreements between the EU and third countries, including in particular Kolpak'SiXiG Simutenkov.^^ Under this case law, which has recently been
^^ Case 66/85 Deborah Lawrie-Blum v Land Baden-Wiirttemberg [1986] ECR 2121. para. 17.
'^Walrave und Koch concerned an action brought by two Dutch nationals against the Union cycliste intematlonale and the Dutch and Spanish Cycling Federations, in order to contest the
compatibihty with what was then EEC free movement law of a provision in the rules of the
Union cycliste internationate relating to medium-distance world cycling championships behind
motorcycles, according to which "the pacemaker must be of the same nationality as the stayer.'' The ECJ ruled that the practice of sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 of the EEC Treaty. However, the Court exempted the composition of national teams, in particular national teams, the formation of which of a question of purely sporting interest and as such have nothing in common with economic interests. It added, however, that this restriction has to remain limited to its proper objective and cannot be relied upon to exclude the whole of a sporting activity from the scope of EEC law. Case 36/74 B.N.O. Walrave and LJ.N. Koch v Association Union cycliste
Internationale. Koninklijke Nederlandsche Wielren Unie el Federacion Espanola CicUsmo
[1974] ECR 1405.
^' Bosnian concerned the transfer system developed by national (Belgium) and transnational football associations as well as rules on the composition of teams when playing matches. Mr Bosman was a Belgian national employed by RC Liege. When his contract expired, he wanted to play for a French club but this did not work out because of the transfer sum demanded by the RC Liege. In its ruling, the Court reiterated its fmdings in Walrave and Koch in relation to the applicability of (now) EC free movement law to rules on professional sport and at the same time refuted a number of arguments brought forward by the defendants in the national proceedings. With these arguments, which related among other things to the freedom of association and the meaning of sport in the context of culture, the defendant sought to convince the Court that professional sport should not be considered an economic activity for the purposes of EC (now: EU) law. Case C-415/93 Union rovale beige des socieies de football association ASBL v
Jean-Marc Bosman [1995] ECR 1-4921.
^^ Kolpak concerned the restriction on the number of players from non-member countries allowed to play in certain competitions, as laid in the rules of the Kolpak, the German national sports association for handball. Mr IColpak. a Slovak national, played as goalkeeper for a German club, was resident in Germany and held a valid residence permit. He held a special player's licence with a suffix A, indicating his foreign nationality. He then sought to obtain a player's Ucence without such a suffix, arguing that he had an unrestricted right to play, in the same way as
2010 Equal Treatment of Migrant Turkish Citizens in the EU | ]
confirmed in Olympique Lyonnais (para. 27), semi-professional and professional sports are indeed an economic activity, though the Court exempts national matches/''*
It should be added that in the context of EU law, an additional legal element may be relevant in sports cases that is absent from the law stemming from the Ankara Association: in addition to EU free movement law, mIes on professional sports may also be covered by EU competition law.^"^ Finally, it may be interesting to note that since the Lisbon revision Article 165(1) TFEU explicitly
Germans and nationals of other EU Member States, based on the principle of non-discrimination under EU law in conjunction with the Europe Agreement with Slovakia. The Court referred to
Busman and ruled that a rule of the type in question relates to working conditions within the
meaning of the first indent of Art, 38(1) of the Europe Agreement inasmuch as it directly affects participation in league and cup matches of a professional player who is already lawflilly employed under the national provisions of the host Member State. As Mr. Kolpak has already had lawful access to the labor market in Germany, he was entitled to the benefit of that provision. On Kolpak, see e.g. S. Van den Bogaert, ... And another tippeniil fi-om the Court of
Justice to nationalitv requirements in sports regulations, 29 EUROPEAN LAW REVIEW 267
(2004).
•'•* Simutenkov raised very similar questions as Kotpak. Mr Simutenkov, a Russian national, lived in Spain and held a residence permit and a work permit. He was employed as a professional footballer with a Spanish football club and held a federation licence as a non-Community player. His application for a Community players Hcencc was turned down on the basis of federation sporting rules specifying the conditions for obtaining such a licence (general requirement of holding Spanish or EU or EEA Member State nationality) and limiting the number of players from non-member countries who may be fielded in national competitions. Ruling on the interpretation of EU-Russia Cooperation and Partnership Agreement in such a case, the Court made references to previous case law. With regard to Kolpak. the Court mentioned not only differences in the wording of the relevant provisions in the two Agreements, but also to the different aims of these Agreements. Nevertheless, the Court repeated its previous jurisprudence concerning non-discrimination on grounds of nationality in professional sport. On Simutenkov,
see e.g. S. Van den Bogaert, Free Movement for Workers & the Nationality Requirement, in MIGRATION, INTEGRATION & CITIZENSHIP: A CHALLENGE FOR EUROPE'S FUTURE. VOL. I 55-72
(H.E.G.S. Schneider, ed., Maastricht: Forum 2005).
See generally e.g. Stephen Weatherill, Resisting the Pressures of Americanization: The Influence of European Community Law on (he European Sport Model. 7 WILLIAMETTE JOURNAL OF INTERNATIONAL LAW & DISPUTE RESOLUTION 37 (2000); S. Van den Bogaert, PRACTICAL REGULATION OF THE MOBILITY OF SPORTSMEN IN THE EU POST BOSMAN, EUROPEAN
MONOGRAPHS 48 (The Hague: Kluwer Law International 2005); THE REGULATION OF SPORT IN
THE EUROPEAN UNION (Barbara Bogusz, Adam Cygan and Erika Szyszczak, eds, Cheltenham: Edward Elgar 2007).
^^ Case C-519/04 P David Meca-Medina and Igor Majcen v Commission [2006] ECR 1-6991 as well as Case C-49/07 Motosykletistiki Omospondia Elladus NPID (MOTOE) v Elliniko Dimosio [2008] ECR 1-4863. Already in Bo.mian the national court asked questions not only on free movement law, but also on competition law, which the Court, however, did not find necessary to answer. On sport and competition law, see e.g. Stratis Camatsos, European Sports, the
Transfer System and Competition Law: Will They Ever Find a Competitive Balance?. 12 SPORTS
LAW JOURNAL 155 (2005); S. Van den Bogaert and A. Vermeersch. Sport & the European
12 Ankara Law Review Vol. 7 No. 1
mentions sports. According to this provision, "[t]he Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.""^^
2. The meaning of ^equal treatment' and 'discrimination' in the context of nationality
Once it has been established that a non-discrimination rule applies in a case like Kahveci, the next question is whether the prohibition of discrimination on the basis of nationality has been infringed. Whether this is the case will depend on the legal meaning that must be given to concepts such as 'equal treatment' and 'discrimination.' As these terms are often not defined in the law, it is left to the courts to explain their substantive meaning.
In the context of EU law, the Court of Justice has held in numerous cases that the equal treatment or non-discrimination provisions that can be found in EU law (which also includes bilateral law such as the law of the Ankara Association) are merely specific expressions of the general and unwritten principle of equality or equal treatment.^^ This general principle requires that what is comparable must be treated in the same way whereas that which is different must be treated differently according to the degree of difference, unless there is objective justification.^^ Accordingly, discrimination may arise through the application of different rules to comparable situations or through the application of the same rules to different situations."^' Where EU law contains specific equality or non-discrimination provisions, these usually are more concrete than the general principle just mentioned, in two respects: first, they may indicate a basis of discrimination (e.g. nationality, sex, or ethnic origin); second, they may put an emphasis on the first part of the general equality formula (i.e. equal treatment of comparable cases). The combination of the two elements means that e.g. persons of different nationality must, in principle, be treated in the same manner, i.e. the mere difference in nationality cannot be regarded as a relevant difference that would allow for different treatment (though other differences might). Placed in this framework, it will be clear that Kahveci concerned two specific non-discrimination provisions, both of which focus on nationality.
^^ The provision is mentioned by the Court in Olympique Lyonnais, para. 14.
'^ In the recent case law, see e.g. Case C-115/08 Land Oberosten-eich v CEZ as, judgment of 27 October 2009, n.y.r, (Grand Chamber), para. 89, in relation to what is now Art. 18 TFEU (general prohibition of discrimination on grounds of nationality).
Case C-300/04 M G. Eman and O. B. Sevinger v College van burgemeester en weihouders van
Den Haag [2006] ECR 1-8055 (Grand Chamber), para. 57.
2010 Equal Treatment of Migrant Turkish Citizens in the EU 13
It is also clear that the discrimination of which Mr Kahveci complained was direct discrimination on the basis of nationality: the limitation in numbers concerned only players holding the nationality of a country outside the EEA; no such limitation applied to EU nationals or to the nationals of the EEA-EFTA States: Norway, Iceland and Liechtenstein. The term "direct discrimination' does not appear in the law stemming from the Ankara Association, and neither does it appear in the treaties on which the EU is based. Rather, the distinction between direct and indirect discrimination has been developed by the Court of Justice through its case law since the late 1960s, culminating, as far as (indirect) discrimination on grounds of nationality is concemed, in O 'Flynn.'^^' Put simply, direct discrimination concerns cases where different treatment is explicitly or obviously based on the prohibited criterion,^' as was the case in Kahveci. In contrast, indirect discrimination arises where the different treatment is based on an apparently neutral criterion which, however, in fact has a disparate effect (i.e. which affects a substantially higher proportion of one group, in present context, of Turkish migrant workers) and for which there is no objective justification. The fact that the distinction between direct and indirect discrimination also applies in the context of the law stermning from the Ankara Association which prohibits both fornis of discrimination, is confirmed by the Court's judgment in the case Öziürk,^^ which concemed social security law.
For the sake of completeness, it should be added that under the most recent generation of secondary EU social law, there are legal definitions of direct and indirect discrimination.''"' Further, the relevant EU law prohibits not only direct and indirect discrimination but also harassment and the instruction to discriminate. However, generally neither these definitions nor the additional
^" Case C-237/94 John O'Flynn v Adjudication Officer [1996] ECR 1-2617; see fwiher Christa
Tobler. INDIRECT DISCRIMINATION. A CASE STUDY INTO THE DEVELOPMBNT OF THE LEGAL CONCEPT OF INDIRECT DISCRIMINATION UNDER EC LAW {Antweip/Oxford: Intersentia 2005).
•" Based on case law from the field of social law, which, in the opinion of the author, also applies in other contexts, including economic law, this includes diffcrenl treatment based on a criterion that is formally neutral but that, due to legislative provisions or to binding rules of the employer, has the same exclusionary effect as measures directly relying on the prohibited criterion; see Christa Tobler and Kees Waaldijk, Annutaliim of Case €-267/06 Tadao Maruko v
Versorgungsansiali der deuischen Bühneıf, 46 COMMON MARKET LAW REVIEW 723, 723-746
(2009).
"^ Case C-373/02 Şakir Özlürk v Pensionsversicherungsanstah der Arheiter [2Ü04] ECR 1-3605.
^^ For example "For the purposes of paragraph 1: (a) direct discrhnination shall be taken to occur
where one person is treated less favourably than another is. has been or would be treated in a comparable situation on grounds of racial or ethnic origin; (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means appropriate and necessary. [...]". Art. 2 of Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ 2000 L 180/22.
14 Ankara Law Review Vol. 7No. 1
forms of discrimination mentioned in the directives are relevant to agreements with third countries. The only exception in this regard is the EEA Agreement which includes part of EU social law {namely sex equality employment law).
a) Justifîcation
In EU law, prohibitions of discrimination are often not absolute but are subject to derogations. For example, in the field of the free movement of workers, the prohibition of discrimination on the basis of nationality under Article 45(2) TFEU is subject to the possible justification on the basis of public policy, public security and public health, as stated in Article 45(3) TFEU. Ultimately, there is no infringement of the right to equal treatment where the alleged discriminator is able to rely on one of these grounds and where the measure in question is proportionate, i.e. appropriate (suitable) and necessary (requisite). As was stated before, in cases of alleged indirect discrimination, the justification possibilities go beyond these three statutory grounds, due the
element of objective justification which is part of the definition of indirect discrimination and which is not restricted to a closed list of possible grounds for derogation.
Article 14(1) of Decision 1/80 provides for the same statutory derogation grounds as does Article 45(3) TFEU (and as do other bilateral agreements; e.g. Article 46 of the EU-Russia Agreement (PCA) and Article 5(1) of Annex I to the EU-Swiss Agreement on the free movement of persons)."*^ The Court has emphasized the exhaustive nature of this limitation to Turkish citizens' rights, most recently in Genc^^ As for proportionaHty, there is no reason why the usual proportionality test should not apply m the context of Article 14 of Decision 1/80."^
** Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the otiier, on the free movement of persons, signed on 21 June 1999, Oj 2002 L 114/6.
^^ Case C-14/09 Hava Gene v land Berlin, judgment of 4 February 2010, para. 42-43 (in the
context of residence rights). Compare also the Court's statement in Simulenkov (para. 40), according to which the words "'subject to the laws, conditions and procedures applicable in each Member State' [in Art. 23 of the PCA, which the principle of non-discrimination on grounds of nationality subject to these conditions and procedures] cannot be construed as allowing Member States to subject the application of the principle of non-discrimination set out in the former of those two provisions to discretionary limitations, inasmuch as such an interpretation would have the effect of rendering that provision meaningless and thus depriving it of any practical effect". In other words, it is not possible to enlarge the justification grounds through this provision.
^ Tezcan/Idriz, supra note 10, at 1649-50. Conversely, in comments on case law concerning
agreements with other countries it has been concluded by Million that what applies there is not a classic proportionality test but rather some sori of effectiveness test, based on provisions such as Art. 48 PCA according to which parties may apply their laws and regulations regarding entry and stay, work and labor conditions as long as they do not apply them "in a maimer as to nullify or impair" the benefits accruing to the parties under the agreement.
2010 Equal Treatment of Migrant Turkish Citizens in the EU 15
IV. THE LIMITS OF EQUAL TREATMENT: CONTRASTING
KAHVECI WITH OL YMPIQUE L YONNAIS
From the above, it appears that Kahveci was a clear-cut case involving direct discrimination on basis of nationality against a Turkish worker, contrary to Article 37 of the Additional Protocol and Article 10(1) of Decision 1/80. It is interesting to compare the Court's decision in this case to the recent decision in Olympique Lyonnais, which concerned a somewhat different pattern of facts. If these had been the facts in Kahveci, would tlie outcome have been the same or different under the law of the Ankara Association?
A. The facts of the Olympique Lyonnais case
Olympique Lyonnais concerned rules applicable to professional football in France, according to which a young player (a so-called 'joueur espoir') taken on for training by a club was obliged to sign, at the end of the training period, a professional contract with the club in question if offered such a contract. Instead, Mr Bernard signed a contract with Newcastle United FC. This led to an action for damages by Mr Bernard's former club, Olympique Lyonnais SASP, against him and Newcastle United FC in the amount of the one year's salary it would have been paid had Mr Bernard remained with his former club. The right to damages was based on French civil law, rather than the Football Charter. When the case arrived at the French Cour de Cassation, this court put the following questions for a preliminary ruling to the Court of Justice: " ( 0 Does the principle of the freedom of movement for workers laid down in [Article 39 of the EC] preclude a provision of national law pursuant to which a so-called joueur espoir who at the end of his training period signs a professional player's contract with a club of another Member State of the European Union may be ordered to pay damages? (2) If so, does the need to encourage the recruitment and training of young professional players constitute a legitimate objective or an overriding reason in the general interest capable of justifying such a restriction?"
B. The Court's judgment
After having stated that a rule such as Article 23 of the Charte du football professionnel falls within the scope of Article 45 TFEU (Olympique Lyonnais,
para. 27 et seq.), the Court turned to the question of whether such a rule constitutes an infringement of EU law on the free movement for workers {Olympique Lyonnais, para. 33 et seq.). Referring to Bosman, the Court recalled that "[njational provisions which preclude or deter a national of a Member State trom leaving his country of origin in order to exercise his right to freedom of movement therefore constitute restrictions on that freedom even if they apply
Ankara Law Review Vol. 7 No. I
without regard to the nationality of the workers concerned." As for the type of rule at issue, the Court stated that it is likely to discourage players from exercising their right of free movement by making the exercise of that right less attractive. Consequently, such a rule amounts to a restriction on freedom of movement for workers guaranteed within the European Union by Article 45 TFEU.
In a next step, the Court recalled that a measure, which constitutes an obstacle to freedom of movement for workers, can be accepted only if it pursues a legitimate aim compatible with the Treaty and is justified by overriding reasons in the public interest. Further, even if that were so, application of that measure would still have to be such as to ensure achievement of the objective in question and not go beyond what is necessary for that purpose (i.e. it must pass the proportionality test). The Court had already held in Basman that, in view of the considerable social importance of sporting activities and in particular football in the European Union, the objective of encouraging the recniitment and training of young players must be accepted as legitimate. Concerning the requirement of proportionality, the Court stated in Olympique lyonnais that the specific characteristics of sport in general, and football in particular, must be taken into account and their social and educational function, factors that are also mentioned in Article 165(1) TFEU. According to the Court, the prospect of receiving training fees is likely to encourage football clubs to seek new talent and train young players. Accordingly, a scheme providing for the payment of compensation for training where a young player, at the end of his training, signs a professional contract with a club other than the one which trained him can, in principle, be justified by the objective of encouraging the recruitment and training of young players, if it is actually capable of attaining that objective and if it is proportionate to that objective. However, the present case does not concern compensation for trainmg, but damages, the amount of which is unrelated to the real training costs incurred by the club. The possibihty of obtaining such damages goes beyond what is necessary to encourage recruitment and training of young players and to fimd those activities. Accordingly, the right to such damages cannot be justified and amounts to a restriction on the free movement of workers under Article 45 TFEU.
C, Equal treatment versus freedom from restrictions
From the Court's judgment in Olympique Lyonnais it may be concluded that while the obligation to pay compensation for the actual costs of training may be justified and thus not amount to an infringement of Article 45 TFEU, the same is not true in relation to the obligation to pay damages unrelated to the actual costs of the training received by the player in question. For present purposes, it is important to note that this finding is based on a legal concept different from discrimination, namely that of a restriction. In the beginning of what was then
2010 Equal Treatment of Migrant Turkish Citizens in the EU 17
Community law, the Court interpreted the rules on the fi-ee movement of persons (i.e. free movement for workers and freedom of establishment) and of services as simply prohibiting discrimination on the basis of nationality. However, later it held that these rules go beyond a mere prohibition of discrimination and also prohibit restrictions.''^ In the seminal case of Kraus!^^ which concerned the use of an academic title, the legal concept of restrictions was defined as encompassing:
any national measure governing the conditions under which an academic title obtained in another Member State may be used, where that measure, even though it is applicable without discrimination on grounds of nationality, is liable to hamper or to render less attractive the exercise by Community nationals, including those of the Member State which enacted the measure, of fundamental freedoms guaranteed by the Treaty. The situation would be different only if such a measure pursued a legitimate objective compatible with the Treaty and was justified by pressing reasons of public interest [...]. It would however also be necessary in such a case for application of the national rules in question to be appropriate for ensuring attainment of the objective they pursue and not to go beyond what is necessary for that purpose [.. .].^"
Explaining the reason for including the concept of restrictions in obstacles to free movement that are prohibited under EU law, the Court often states what can also be found in Olympique Lyonnais, namely that
all of the provisions of the FEU Treaty relating to the freedom of movement for persons are intended to facilitate the pursuit by nationals of the Member States of occupational activities of all kinds throughout the European Union, and preclude measures which might place nationals of the Member States at a disadvantage when they wish to pursue an economic activity in the territory of another Member State."^
It is important to note that restrictions may be non-discriminatory. This was indeed the case in Olympique Lyonnais, where the obligation to sign a contract with the club where the training had been received applied wholly unrelated to the player's nationality. In other words, there was no issue of either direct or indirect discrimination on the basis of nationality. Accordingly, the alleged infringement of Article 45 TFEU by definition could not take the form of discrimination but only that of a restriction. Another important element of the concept of restrictions is the fact that, similar to indirect discrimination, it
See e.g. Tobler, supra note 40, at 75.
•*" Case C-19/92 Dieter Kraus v LandBaden-Wurttemberg [1993] ECR I-I663. ^Vc/,. para 32.
18 Ankara Law Review Vol. 7 No. 1
includes an open possibility of justification based on "overriding reasons in the public interest," subject to the requirement of proportionality. In OJympique Lyonnais. the Court declared the objective of encouraging the recruitment and training of young players to be legitimate, and a system obliging the young player to sign a contract with the club that trained him suitable for that purpose. However, only the sanction to pay damages unrelated to the cost of training was found to be unacceptable.
Would the same finding have been possible in the framework of the law of the Ankara Association? From what has been said above, it should be clear that a finding parallel to that of the Court in the Olympique Lyonnais case considering the law of the Ankara Association would presuppose that this law prohibits not only discrimination on basis of nationality but also restrictions, even though the wording of the relevant provisions gives no justification for such an interpretation. It might be argued that the same was true in relation to Article 45 TFEU but that this same situation did not hinder the Court from interpreting this provision as also including a prohibition of restrictions. However, the question remains whether EU law and the law of the Ankara Association are comparable in this regard. In Wahlergruppe Geme'msam, the Court stated that the principles of the free movement for workers under EU law must be extended, "as far as possible" to Turkish nationals who enjoy rights under Decision 1/80."^ Is it possible in this case?
As far as the author knows, so far no cases have been decided by the Court where a restriction would have been argued in the context of Article 37 of the Additional Protocol or of Article 10(1) of Decision 1/80 (or, for that matter, of any other bilateral agreement). The question is therefore open. In this context, it may be interesting to refer to a decision addressed by the European Commission to Switzerland"^ in the context of the EU-Swiss Agreement on air transport,^"^ concerning a dispute with Germany about air noise. In this decision, the Commission argues that the Court's decision in the Malpensa^^ case carmot be transposed to the EU-Swiss Agreement. In Malpensa, the Court had held, inter alia, that Article 8(1) of Regulation 2408/92/EC, which according to its wording prohibits discrimination on grounds of nationality,^*" goes further than that and also prohibits restrictions in the wider sense as described above.
Waehlergfuppe Gemeinsam, para. 72.
^^ Commission Decision 2004/12/EC on a procedure relating to the application of Article 18(2), first sentence, of the Agreemenl between the European Community and the Swiss Confederation on air transport and Council Regulation (EEC) No 2408/92, OJ 2004 L 4/13.
^* Agreement between the European Community and the Swiss Confederation on Air Transport,
OJ 2002 L I 14/73.
" Case C-361/98 Italy v Commission [2001] ECR1-385 [hereinafter 'Malpensa'].
Regulation 2408/92/EC on access for Community air carriers to intra-Community air routes, OJ 1992 L 240/8.
2010 Equal Treatment of Migrant Turkish Citizens in the EU 19
However, the reasoning used by the Commission when arguing that the Malpensa judgment is not relevant for the purposes of the EU-Swiss bilateral law may be peculiar to that law: the Commission relies on the fact that Malpensa was handed down after the signing of the agreement. This argument has to be seen against the background of Article 1(2) of the Agreement, according to which the provisions of the Agreement, "insofar as they are identical in substance to corresponding rules of the [EU Treaties] Treaty and to acts adopted in application of [these Treaties], [...] shall, in their implementation and application, be interpreted in conformity with the relevant rulings and decisions of the Court of Justice and the Commission of the European Communities given prior to the date of signamre of this Agreement. [...]" In the judgment in the appeals case handed down on 9 September 2010, the Court did not address the issue.^^
Accordingly, the question remains what would be the correct interpretation under the EU-Swiss bilateral law if there were no such time limit (or if the time limit were not relevant for present purposes). In that regard, the Court's reasoning in Malpensa^^ to interpret the non-discrimination provision of Article 8(1) of Regulation 2408/92/EC as also including a prohibition of restriction should be noted. The Court stated, that in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it forms part. It then noted that the purpose of Regulation 2408/92/EC is to apply in the air transport sector the principle of the freedom to provide services which is enshrined in, inter alia. Articles 56 and 57 TFEU. The Court continued by referring to its settled case law according to which Article 56 requires not only the elimination of all discrimination on the basis of nationality but also the abolition of restrictions. The Court found that the measures enacted in the decrees at issue for the purpose of governing the distribution of traffic within an airport system, within the meaning of Article 8(1) of Regulation 2408/92/EC, constitute restrictions on the freedom to provide services. In its decision on aircraft noise, the Commission stated that, different from EU law, the EU-Swiss bilateral Air Transport Agreement does not provide for an internal market for air transport, but only for what the Commission terms an exchange of 'traffic rights.' The Commission concludes that it is therefore evident that the freedom to provide services in the sense of Articles 56 and 57 TFEU does not exist as far as the EU-Swiss Air Transport Agreement is concemed, although the Commission adds that this contrasts with the full right of establishment provided for İn Article 4 of the same Agreement.
" Case T-319/05 Swiss Confederation v Commission, 9 September 2010.
20 Ankara Law Review Vol. 7 No, 1
Two important findings emerge from the above. First, in Malpensa, the Court was willing to interpret a provision whose wording clearly only mentions discrimination as in fact also referring to restrictions. In other words, the prohibition of restrictions is not only limited to provisions generally providing for 'freedom of movement' (as does Article 45(1) TEFU for example). In so far as there appears no hindrance in principle to interpret provisions of a bilateral agreement worded in terms of discrimination only, such provisions may now also include a prohibition of restrictions. Second, at least according to the Commission, a parallel interpretation in this respect of bilateral law with EU law presupposes the same context, i.e. full free movement as part of a truly internal market.
If this is correct, what does it mean for the law stemming from the Ankara Association? In that regard, a distinction must be dravra between the movement of workers, on the one hand, and that of services and establishment, on the other hand. As it stands today, the law of the Ankara Association does not establish a ftiU internal market, although its aim (at least initially) was to do so. In particular, under present law Turkish workers do not have the right to access the employment markets of the EU Member States, so there is, in fact, no 'free movement' in that respect. Accordingly, the author would suspect that the Court, should a workers case raising the issue of restrictions ever reach it, would point to the different nature of the law stemming from the Ankara Association and of EU law, stating that the former ~ different from the latter and from EEA law (which in that respect mirrors EU law and prohibits both discrimination and restrictions) - does not establish an internal market but only grants selective and limited rights to Turkish migrant workers. The Court might then conclude that this fundamental difference must be reflected in the interpretation of the two legal regimes in such a way that the non-discrimination provisions in the law stemming from the Ankara Association contain no more than what they say, namely prohibitions against discrimination. This would in turn mean that rules of the type at issue in Olympique Lyonnais would remain outside the reach of that law. It is conceivable that the Court might use a similar approach in the context of the EU-Swiss Agreement on the free movement of persons, in whose context it is much debated in Switzerland whether restrictions are prohibited and where the rights of economic operators are also limited, although not in the same manner as under the law of the Ankara Association.'
' On the Swiss decision, see Chantal Delli, VERBOTENE BESCHRANKUNGEN FUR
A R B E I T N E H M E N D E . ÜBERLEGUNGEN ZUR T R A G W E I T E D E S P E R S O N E N F R E İ Z Ü G İ G K E I T S A B K O M M E N S
ZWISCHEN DER SCHWEIZ SOWIE DER E G UND LUREN MLTGLLEDSTAATEN [PROHIBITED RESTRICTIONS FOR WORKERS. REFLECTION ON THE REACH OF THE AGREEMENT ON THE FREE
MOVEMENT OF PERSONS BETWEEN THE EC AND SWITZERLAND] (Basel: Helbing & Lichtenhahn
2010 Equal Treatment of Migrant Turkish Citizens in the EU 21
However, it would seem that things are different as far as standstill clauses are concerned. As has been already stated, Article 13 of Decision 1/80 prohibits the introduction of 'new restrictions' on the conditions of access to employment applicable to workers and their family members legally resident and employed in their respective territories. Further, Article 41(1) of the Additional Protocol prohibits the introduction of "any new restrictions" on the freedom of establishment and the freedom to provide services. These clauses have led to important case law, which regarding workers includes most recently Sahin,''^ in relation to establishment notably Savas^^ and Turn and Darf^ and in relation to services Soysal.''^ Ahalay^'^ concerned both Article 13 of Decision 1/80 and Article 41(1) of the Additional Protocol. According to the Court, these provisions are of the same kind and must therefore be interpreted in the same manner.^'^ In its case law on Article 41(1) of the Additional Protocol, the Court interprets the term 'restriction' as having the same meaning as does the concept of restrictions under EU free movement law. For example, in Abatay the Court referred to its settled case law under Article 56 TFEU (then Article 59 EC) on the meaning of the term 'restriction.' The Court then stated that it is clear from the wording of the law stemming from the Ankara Association and from the objective of the EU-Turkey Association that the principles concerning the freedom of establishment and the free movement of services must be extended, so far as possible, to Turkish nationals to eliminate restrictions between the contracting parties. The Court concluded that legislation such as that at issue hi the main proceedings constituted a restriction on the right of natural and legal persons freely to provide services in a Member State.^'' It would therefore seem that the use of the term 'restrictions' in Article 13 of Decision 1/80 and in
Austegungsmcthode; 1st das Beschrankungsverbot in seinem Rahmen anwendbar? . Zeitschrift fiir europaisches Sozial- utid Arbeitsrecht 2008, 425-535; Christa Tobler and Daniel Maritz. Zur
bilateraien Dierislleistungsfreiheil [On (he Free Movement of Services under the Bilateral Law], in ScuwEizKRlSCHES JAHRBUCH FUR EuROPARECllT 2008/2009 [Swiss Yearbook on European
law 2008/2009] 335-363 (Astrid Epincy and Nina Gammenthaler, eds, Berae: Stampfli/Zurich: Schulthess 2009).
''" Case C-242/06 Minister voor Vreemdelingenzaken en Integratie v T. Sahin, 17 September 2009.
**' Case C-37/98 The Queen v Secretary of State for the Home Department, ex parte Abdulnasİr
Savas [20001 ECR 1-2927.
' Case C-16/05 The Queen. Veli Turn and Mehmet Dari v Secretary of State for the Home
Department [2007] ECR 1-7415.
^^ Case C-228/06 Mehmet Soysal and Ibrahim SavatH v Bundesrepuhlik Deutschland, 19 February (>4 2009.
Joined Cases C-317/01 and C-369/01 Eran Abatay and Others and Nadi Sahin v Bundesanstalt
fur Arbeit [2003] ECR 1-12301.
Sa/iin, para. 65. ^*^öa/ay,para, 110-113.
22 Ankara Law Review Vol. 7 No, 1
Article 41(1) of the Additional Protocol is identical to that in EU law on the free movement of persons and services.
As a consequence of this case law, where an EU Member State did not have any restrictions in place at the time when the Additional Protocol entered into force, the effect of Article 41(1) of the Additional Protocol is that there is totally free movement for Turkish nationals in relation to establishment and services.**^ The effect of Article 13 of Decision 1/80 is more limited, as here provisions such as Article 6 are lex specialis to Article 13, meaning that the latter can only apply to matters not covered by the former (i.e. in the context of Article 6 to matters other than those concerning the rights of Turkish nationals as regards employment;).^** In other words. Article 13 of Decision 1/80 would not be of any help in a case with facts such as those of Olympique Lyonnais, which did concern conditions of employment.
V. CONCLUSION
The conclusion from the above is that while there is indeed a prohibition of restrictions within the meaning of EU law in the context of the standstill clauses discussed, it may well be that the Court would refuse to interpret the non discrimination provisions relevant in the context of workers as encompassing such a prohibition. If so, this would simply be yet another reflection of the Court's statement in Polydor!''^ according to which a mere "similarity in terms is not a sufficient reason for transposing to the provisions of the agreement the [Courtis] case-law", i.e. for giving an agreement the same interpretation as EU law. Rather, "the scope of that case-law must [...] be determined in the light of [Union's] objectives and activities"^"). The Court has been using this type of reasoning quite regularly when explaining why a provision in a bilateral agreement with a third country does not mean the same as a similar provision xmder EU law, first in Polydor itself (in relation to the fonner Free Trade Agreement with Portugal) and later for example in Ghszczuii^ and Pohrzeptowicz-Meyer^^ (both in relation to the former Europe Agreement with
^' Although Tezcan/Idriz notes that it is not clear whether, in relation to services, this applies to service providers only or also to service recipients. Tezcan/Idriz, supra note 10. at 1631. See
also e.g. Kai Haİlbronner, Visafreiheil fiir tUrkische Staalsangehörigel {Freedom of Visas for
Turkish nationals?]. NEUE ZEITSCHRIFT FUR VERWALTUNGSRECHT [NEW JOURNAL FOR
ADMINISTRATION LAW] 2009,760, 763.
^^ Abatay. para. 76.
^^ Case 270/80 Polydor Limited and RSO Records Inc. v Harlequin Records Shops Limited and
Simons Records Limited [X'^U'] ECR 329.
•"•W.para. 15-16.
^' Case C-63/99 The Queen v Secretary of State for the Home Department, ex parte Wieslaw
Gloszczuk andElzbieta Ghszczuk [2001] ECR 1-6369.
2010 Equal Treatment of Migrant Turkish Citizens in the EU 23
Poland), further in Kondova^ (in relation to the former European agreement with Bulgaria), in Barkocf'^ (in relation to the former European agreement with the Czech Republic) and in Deutscher Handballbimd (in relation to the former European agreement with Slovakia).
It is true, as noted by Teczan/Idriz, ' that so far the Polydor case law has never been mentioned in any case concerning the Ankara acquis. Also, Hillion'* has written about the "progressive vanishing of the old Po/yc/or jurisprudence." He had noted earlier^^ that the Court did not mention Polydor in its decision on the Jany^^ case (concerning the former Europe Agreement with Poland) and he thought that the fact that the Court, again, did not mention this jurisprudence in Simutenkov "may look like the final blow to that jurisprudence."^^ The Court's recent and explicit reference to Polydor in the context of the EU-Swiss Agreement on the free movement of persons in the decision on the Grimme^^ case (and implicitly, through a reference to Grimme, also in Fokus Invest and in Hengartner and Gasser) ~ shows that the Polydor line of case law is very much alive. It is not excluded that İt might eventually also appear in the context of the law of the Ankara Association, given that, in terms of economic integration, this law is considerably less far-reaching than is the EU-Swiss bilateral agreement on the free movement of persons, at least in relation to the free movement for workers. It might be argued that this might not occur in view of the fact that that the law stemming from the Ankara Association is geared towards Turkish membership of the EU, while the EU-Swiss bilateral law is not. This is true, though it should be noted that an application for membership from Switzerland has been pending for some time (it is not being acted upon as a consequence of the Swiss 'no' to the EEA Agreement, but it is still in
^^ Case C-235/99 The Queen v Secretary of State for the Home Department, ex parte Eleanora
Ivanovo Kondova [2001] ECR 1-6427.
''^ Case C-257/99 The Queen v Secretary of State for the Home Department, ex parte Julius Barkoci and Marcel Malik [2001 ] ECR 1-6557.
" Tezcan/Idriz, supra note 10. at 1650. '^ Hillion, supra note 11, at 828.
" Christophe Hillion, Cases C-63/99 Gloszczuk; €-235/99 Kondova; C-257/99 Barkoci and
Malik: Case C-268/99 Jany e.a, Case C-162/Ö0 Poprzeptowicz-Meyer, 40 COMMON MARKET LAW REVIEW 465,487(2003).
'^Case C-26W99 Aldona Malgorzata Jany and Others v Staatssecretaris van Justilie [2001] ECR 1-86! 5.
^' Meaning apparently: as far the objective definition of free movement rights is concerned, as opposed to the context of its exercise which will depend on the agreement in question.
*" Case C-351/08 Christian Grimme v Deutsche Ange.itelhen-Krankenkasse, 12 November 2009. "' Case C-541/08 Fokus Invest AG v Finanzierungsberatung-Immobilientreuhand und
Anlageberatung GmbH (FIAG), 10 February 2010.
^ Case C-70/09 Alexander Hengartner and Rudolf Gasser V Landesregierung Vorarlberg, 15 July
24 Ankara Law Review Vol. 7 No. 1
existence). Insofar, the perspective, or at least the possibility, of EU membership exists not only for Turkey but also for Switzerland.
In Grimme the Court stated:
The Swiss Confederation, by its refusal to join the EEA, did not subscribe to the project of an economically integrated entity with a single market, based on common rules between its members, but chose the route of bilateral arrangements between the Community and its Member States in specific areas. Therefore, the Swiss Confederation did not join the internal market of the Community the aim of which is the removal of all obstacles to create an area of total freedom of movement analogous to that provided by a national market [...]. Thus, in order to reinforce the link between the Contracting Parties, the bilateral Agreement was signed between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other part [...]. In that context, the interpretation given to the provisions of Community law concerning the internal market cannot be automatically applied by analogy to the interpretation of the Agreement, unless there are express provisions to that effect laid down by the Agreement itself see, to that effect, Case 270/80 Polydor and RSO [1982] ECR 329, paragraphs 15 to 19)."'
The question then remains of when precisely the Polydor line of case law is relevant. This will have to be assessed on a case-by-case basis. Hillion has concluded that the rule appears to be that the more integrationist the objectives of the Agreement in question, the more likely the extension of the Court's EU case law, although much depends on how the Court interprets the objectives and their context.^''
To return to the issue of discrimination, again, the author thinks it possible that the Polydor approach would indeed apply when it comes to transposing the Court's case law on restrictions to bilateral law such as that between the EU and Turkey and that between the EU and Switzerland, certainly in areas where such agreements, according to their wording, merely prohibit discrimination on grounds of nationality. Obviously, this would imply an important limitation of the rights that individuals may derive from such agreements.**• Conversely, it was seen that the Polydor case law does not apply in relation to the concept of discrimination as such, which has been interpreted by the Court in the same manner in the context of EU law {Bosman) and in that of a range of rather
" Para. 27-29.
^ Hillion. supra note 75, at 489.
^^ Christa Tobler and Jeroen Hardenbol/Balasz Mellâr, INTERNAL M.MİKET BEYOND THE EU: EEA
