Opinion of Advocate General Sharpston delivered on 28 February 2019.

• Jurisdiction: European Union
• Celex Number: 62017CC0677
• ECLI: ECLI:EU:C:2019:151
• Date: 28 February 2019
• Docket Number: C-677/17
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Provisional text

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 28 February 2019(1)

Case C‑677/17

Mr Çoban

v

Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (Uwv)

(Request for a preliminary ruling from the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands))

(Reference for a preliminary ruling — EEC-Turkey Association Agreement — Additional Protocol — Article 59 — Decision No 3/80 — Social security for migrant workers — Article 6(1) — Waiver of residence clauses — Supplementary benefits granted under national legislation — Withdrawal)

1. It is human nature, after a long absence abroad for work or a mission, to wish to return home. Odysseus refused wealth, and even immortality, to return to Ithaka. (2) More prosaically, both the EU and the EEC-Turkey Association Council legislature borne this homing instinct in mind by adopting provisions entitling a worker to export certain social security benefits if he leaves the Member State in which the institution responsible for providing those benefits is situated.

2. This request for a preliminary ruling concerns the interpretation 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, (3) read in conjunction with Article 59 of the Additional Protocol, signed on 23 November 1970 in Brussels. (4) That decision prohibits, inter alia, the application of residence clauses in relation to the payment of certain types of social security benefits to Turkish workers.

3. The Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands, ‘the referring court’) enquires as to the relationship between that prohibition and the rule precluding ‘more favourable treatment’ for Turkish workers compared to nationals of Member States laid down in Article 59 of the Additional Protocol.

EU law

The Association Agreement and the Additional Protocol

4. The contracting parties signed the Association Agreement in 1963. (5) In accordance with Article 2(1) thereof, the aim of the Association is ‘to promote the continuous and balanced strengthening of trade and economic relations between the [Contracting] Parties, while taking full account of the need to ensure an accelerated development of the Turkish economy and to improve the level of employment and the living conditions of the Turkish people’.

5. Article 12 is part of Chapter 3 of the Agreement, entitled ‘Other economic provisions’. It provides that, ‘the Contracting Parties agree to be guided by [Articles 45, 46 and 47 TFEU] for the purpose of progressively securing freedom of movement for workers between them’.

6. Title II of the Additional Protocol contains detailed provisions governing ‘Movement of persons and services’, Chapter I of which relates to ‘Workers’.

7. Article 39 (part of that chapter) states that ‘before the end of the first year after the entry into force of this Protocol the Council of Association shall adopt social security measures for workers of Turkish nationality moving within the [EU] and for their families residing [there]’. Such provisions ‘must enable workers of Turkish nationality … to aggregate periods of insurance or employment completed in individual Member States in respect of old-age pensions, death benefits and invalidity pensions, and also as regards the provision of health services for workers and their families residing in [the EU]’. (6) Pursuant to Article 39(4), ‘it must be possible to transfer to Turkey old-age pensions, death benefits and invalidity pensions obtained under the measures adopted pursuant to paragraph 2’.

8. Title IV of the Additional Protocol (‘General and final provisions’) includes Article 59, which provides that ‘in the fields covered by this Protocol Turkey shall not receive more favourable treatment than that which Member States grant to one another pursuant to the Treaty establishing the Community’.

9. The Additional Protocol forms an integral part of the Association agreement. (7)

Decision No 1/80

10. Decision No 1/80 was adopted by the Association Council to promote freedom of movement for workers. (8) Article 6 lays down the conditions for access to employment for Turkish nationals duly registered as belonging to the labour force of a Member State. According to settled case-law, as long as a Turkish worker exercises his right to work under the Association Agreement and Decision No 1/80, he enjoys a concomitant right of residence in the Member State concerned. (9) However, he loses that right should he leave the labour force definitively — for example, because he becomes incapacitated for work. (10)

Decision No 3/80

11. The purpose of Decision No 3/80, adopted on the basis of Article 39 of the Additional Protocol, is to put in place social security measures which enable the movement of Turkish nationals working or having worked in one or more Member States. (11) Decision No 3/80 cross-refers extensively to Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community. (12)

12. Article 2 of Decision No 3/80, entitled ‘Persons covered’, states that the decision applies to workers who are or have been subject to the legislation of one or more Member States and who are Turkish nationals, to the members of the families of these workers resident in the territory of one of the Member States and to the survivors of those workers.

13. Article 3(1), headed ‘Equality of treatment’, provides that ‘persons resident in the territory of one of the Member States to whom [Decision No 3/80] applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State’.

14. In accordance with Article 4 (‘Matters covered’):

‘1. This Decision shall apply to all legislation concerning the following branches of social security:

…

(b) invalidity benefits, including those intended for the maintenance or improvement of earning capacity;

…

2. This Decision shall apply to all general and special social security schemes, whether contributory or non-contributory …

…

4. This Decision shall not apply to social and medical assistance ...’

15. Article 6(1), first subparagraph, of Decision No 3/80, headed ‘Waiving of residence clause …’, states: ‘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’.

Regulation No 1408/71

16. Regulation No 1408/71 defines the term ‘benefits’ in Article 1(t) as meaning ‘all benefits …, including all elements thereof payable out of public funds, revalorisation increases and supplementary [benefits], subject to the provisions of Title III, as also [sic] lump-sum benefits which may be paid in lieu of pensions, and payments made by way of reimbursement of contributions’. (13) Article 4 of that regulation defines the substantive scope of the regulation as covering all legislation concerning ‘branches of social security’ relating to one of the risks listed in Article 4(1) — including the ‘invalidity benefits’ referred to in Article 4(1)(b) — but not ‘social and medical assistance’ (Article 4(4)); and it makes no distinction between contributory and non-contributory schemes (Article 4(2)).

17. Article 10(1) provides that ‘… invalidity … cash benefits … 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 the territory of a Member State other than that in which the institution responsible for payment is situated’. Its wording thus clearly served as a model for the first subparagraph of Article 6(1) of Decision No 3/80.

18. That prohibition does not apply, by virtue of the combination of Articles 4(2a)(a) and 10a(1) of Regulation No 1408/71, both inserted by Council Regulation (EEC) No 1247/92, (14) to certain special non-contributory cash benefits (‘SNCCBs’). Provided that an SNCCB is mentioned in Annex IIa to Regulation No 1408/71, receipt of that benefit may be limited to the territory of the Member State granting it. In other words, SNCCBs are not exportable. Annex IIa includes, for the Netherlands, the Toeslagenwet of 6 November 1986 (Supplementary Benefits Act, ‘the TW’). (15)

19. Decision No 3/80 was not amended to include an equivalent provision to Article 10a(1) of Regulation No 1408/71.

Regulation No 883/2004

20. Regulation No 883/2004 aims to coordinate measures to guarantee that the right to free movement of persons can be exercised effectively. (16)

21. Article 2 defines the personal scope of the regulation as applying ‘to nationals of a Member State, stateless persons and refugees residing in a Member State who are or have been subject to the legislation of one or more Member States, as well as to the members of their families and to their survivors’.

22. Article 3 defines the material scope of the regulation as follows:

‘1. This Regulation shall apply to all legislation concerning the following branches of social security:

…

(c) invalidity benefits;

…

2. Unless otherwise provided for in Annex XI, ^[(17)^] [Regulation No 883/2004] shall apply to general and special social security schemes, whether contributory or non-contributory, and to schemes relating to the obligations of an employer or shipowner.

3. [Regulation No 883/2004] shall also apply to the special...