Dear Minister

Equal treatment and non-discrimination are fundamental principles of the legislation establishing an Association between Turkey and the European Union, which covers all aspects of social and economic life. It is an established fact that this legislation provides equal rights to Turkish workers and members of their families with the EU citizens in the areas of employment and social security. However, until today, Member States have not fully respected those rights provided by that legislation.

The legislation establishing an Association between Turkey and the European Union plainly forms an integral part of the EU acquis communautarie.

In this respect, the rulings of the European Court of Justice are vitally important for realization of those rights provided by the Association legislation for Turkish nationals. This has been very challenging process since the Meryem Demirel Case (C-12/86) of 1987.

The EU Commission, in its capacity as ‘guardian of the Treaties’, is responsible for checking whether the Member States apply EU law properly. If it considers that a national government has failed to apply EU law, the Commission should first send an official letter asking the national government in question to take the appropriate measures to bring its law and practice in line with the EU acquis. As a last resort, the Commission should refer the issue to the Court of Justice. As you are well aware the Court’s decisions are binding on EU countries and institutions. Regretfully, the Commission has been much less willing to do so, if the issue is related to Association legislation and the decisions of the Court are in favour of the Turkish nationals.

Although the EU Commission has not shown effort to implement the Decisions No 1/80 and 3/80 of the Association Council of 19 September 1980 and the related jurisprudence of the Court of Justice, it is highly astonishing that the Commission has been very vigorous in eliminating the outcome of ECJ Judgement C-485-07 (Akdas).

In the Communication COM(2012) 153 final dated 30.3.2012, it’s stated that “the Commission believes that steps should be taken to replace and update Association Council Decision No 3/80. This is all the more necessary in the light of the recent judgment of the Court of Justice in Case C-485/07, Akdas. The Commission’s new proposal for implementing the social security aspects of the Association Agreement will, for example, take into account the principle in Regulation (EC) No 883/2004 regarding the non-exportability of ‘special non-contributory benefits”

On 30 March 2012, the Commission submitted the above-mentioned proposal which aims at establishing the position to be taken by the European Union within the Association Council set up by the Agreement establishing an association between the European Economic Community and Turkey (the “Ankara Agreement”). The Council (EPSCO) adopted the draft Decision at its session on 6 December 2012.

ECJ, in its judgement C-485/07, emphasized the direct and strict relation between right to social security and freedom of movement and reasoned that since the Turkish workers who returned to Turkey do not have the right of freedom of movement, they are entitled to receive special non-contributory cash benefits. However the Commission in its Communication COM(2012)153 has not reflected this truth. In that Communication, the Commission overemphasizes mistakenly that Turkish nationals have received more favourable treatment than EU citizens in terms of exportability of special non-contributory benefits.

In its above-mentioned judgment, the Court affirms the principle of the exportability of social security benefits to Turkey. It emphasises that the principle of exportability, which is provided for by both Article 39(4) of the Additional Protocol and Article 6 of Decision 3/80, imposes an obligation of result on the Member States. Accordingly, the Court recognises that the principle of the exportability of benefits has direct effect, on the same grounds that the prohibition against discrimination on account of nationality has direct effect (see judgment of 4 May 1999 in the Sürül case, C-262/96, I-2685).

The following points have been presented in the Akdas ruling of the European Court;

1) The freedom of movement for workers between Member States of the Community and Turkey is to be secured by progressive stages in accordance with the principles set out in Article 12 of the Association Agreement between the end of the 12th and the 22nd year after the entry into force of that Agreement (para. 12). Therefore, the former Turkish migrant workers who returned to Turkey after having lost their right to remain in the host Member State cannot be compared with the European Union nationals (para. 59).

2) The power to amend existing Association Council decisions is reserved to the Association Council, in accordance with Articles 8 and 22 of the Association Agreement (para. 91). Turkey-EU Association legislation cannot be amended without the approval of the both parties.

3) The special non-contributory cash benefits shall be exportable to Turkey without any reduction, modification, suspension, withdrawal, or confiscation.

It’s obvious that the Commission differs with ECJ on the ruling of Akdas on two basic points, namely that firstly, amending EU Directives and/or accepting new Directives has no power over the Turkey-EU Association law. Secondly, this ruling provides more favourable rights to Turkish nationals in comparison to EU citizens.

The Commission has explicitly expressed her opinion concerning these issues on COM (2012) 153.

This approach of the Commission is in conflict with the ruling of the European Court. The ruling of Akdas must be read correctly. The approach of the European Court concerning Article 59 is quite clear. The European court has taken into consideration the fact that the Turkish citizens do not have the right of free movement and has ruled that the Turkish workers do not possess more rights than EU citizens.

Although the European Commission makes a distinction between the rules of coordinating law in the fields of social security and the migration, the decision of the European Court is very clear about this.

The Court in its judgement ruled that the first subparagraph of Article 6(1) of Decision No 3/80 of the Association Council 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 must be interpreted as having direct effect, so that Turkish nationals to whom that provision applies are entitled to rely on those provisions directly before the Member States’ courts in order to have rules of national law which are contrary to it disapplied. This means old age and survivors’ cash benefits and pensions for accident at work or occupational diseases benefits and supplementary benefits to these benefits whether contributory or non-contributory shall not be subject to any reduction, modification, suspension, withdrawal or confiscation due to the residence in Turkey.

Therefore, Communication COM(2012) 152 and Communication COM(2012) 153 dated 30 March 2012 and as well as the current approach of the Commission are completely unacceptable on the basis of the provisions of Association Agreement.

Our observations on the proposal of the EU, which was adopted by the Council (EPSCO) on 6 December 2012, as follows;

a. It is understandable that transfer of special non-contributory cash benefits to Turkey is a point of concern since this is not possible between EU Member States.

b. On the other hand, to claim that “transfer of special non-contributory cash benefits to Turkey gives more rights to Turkish national against EU nationals” is first of all contradicts the ruling of the Court of Justice.

c. Seeing that the Ankara Agreement, the Additional Protocol, the Decisions of the Association Council (No 1/80 and 3/80) and the ruling of the European Court of Justice (especially the Akdas decision) are integral parts of the EU acquis, it is neither legally right nor politically correct to negotiate such a text in the light of the applicable law.

d. The way to overcome the concerns of the Commission regarding the transfer of special non-contributory benefits is in fact clearly indicated in the Akdas decision.

e. In relation to Article 59 of the Additional Protocol, the Court has pointed out that Turkish workers who are unable to exercise the right of free movement cannot be compared with the EU nationals, therefore it cannot be said that the Turkish citizens have more rights than the EU nationals.

f. It is high time that the EU take the necessary measures to implement the provisions of the Decision of the Association Council and the rulings of the European Court of Justice regarding the free movement of Turkish workers.

g. As a first step in the right direction, Turkish workers and members of their families who are or have been resident in the territory of one of the Member States should at least be granted entrance, stay, and residence in the EU without any restriction (Soysal and Savatlı Decision C-228/06). Of course, this right must include the right of employment and social security.

h. Making an amendment to the Decision No 1/80 to recognise the right of free movement of Turkish workers and the members of their families would also prevent the transfer of special non-contributory benefits to Turkey as between EU Member States.

i. The right action to take is not to make a new Association Council Decision on social security, but to resurrect the proposal for a Council Regulation (EEC) implementing within the European Economic Community Decision No 3/80, submitted by the Commission of the European Communities on 8 February 1983.

In conclusion, we would like to express the following;

Application of the Turkey – EU Association legislation has mainly been put into effect by the Decisions No 1/80 and 3/80 of the Association Council of 19 September 1980 and the jurisprudence of the Court of Justice. The new Association Agreement drafted by the EU Commission as a replacement for the Decision No 3/80, aims to abolish the legal ground providing social security since 1963 to 5 million people with Turkish origin who are living in EU member states or who have returned to Turkey after living in the EU for a period of time. At the same time, the Draft text of Readmission Agreement proposed to Turkey by EU will seriously threaten all the rights, including free movement provided by Decision No. 1/80, with the exception of the trade relations.

The Governments of EU Member States should question whether they really want to face the political consequences of these attempts aiming to abolish two fundamental Decisions (No 1/80 and 3/80) which form the Turkey-EU Association relations. We, as the Turkish communities of Europe, will stand against these attempts with full effort. We are aware that the EU is a union on a legal basis. There is no doubt that any unlawful practices against Turks in Europe will also be implemented in due course against other peoples living in EU, irrespective of their nationality.

 

Yours sincerely,

Mustafa Ayrancı

HTIB Chairman
The Union of Turkish Workers in the Netherlands