Sema Sürül v Bundesanstalt für Arbeit.

• Jurisdiction: European Union
• Celex Number: 61996CC0262
• ECLI: ECLI:EU:C:1998:55
• Date: 12 February 1998
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-262/96

61996C0262

Opinion of Mr Advocate General La Pergola delivered on 12 February 1998. - Sema Sürül v Bundesanstalt für Arbeit. - Reference for a preliminary ruling: Sozialgericht Aachen - Germany. - EEC-Turkey Association Agreement - Decision of the Association Council - Social Security - Principle of non-discrimination on grounds of nationality - Direct effect - Turkish national authorised to reside in a Member State - Entitlement to family allowances under the same conditions as nationals of that State. - Case C-262/96.

European Court reports 1999 Page I-02685

Opinion of the Advocate-General

The questions referred to the Court and their legislative and factual context

1 By order of 24 July 1996 the Sozialgericht Aachen (hereinafter `the Sozialgericht') sought from the Court of Justice under Article 177 of the EC Treaty (hereinafter `the Treaty') interpretative guidance to enable it to give judgment in the proceedings between Sema Sürül and the Bundesanstalt für Arbeit Nürnberg (hereinafter `the BfA') pending before it. To that end, an interpretation is required 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 (1) (hereinafter `Decision No 3/80').

The questions submitted by the national court are as follows:

`1. Does a Turkish national living in Germany who comes within the personal scope of Article 2 of Decision No 3/80 of 19 September 1980 of the Association Council set up pursuant to the Agreement establishing an Association between the European Economic Community and Turkey ("Decision No 3/80"), and who possesses merely an Aufenthaltsbewilligung, have the right, deriving directly from Article 3 in conjunction with Article 4(1)(h) of Decision No 3/80, to German child benefit, in such a way that that right is conditional solely on fulfilment of the conditions applying with regard to German nationals and not on fulfilment of the further conditions applying to aliens which are laid down in the first sentence of Paragraph 1(3) of the Bundeskindergeldgesetz ("BKGG") in the version thereof published in the Official Notice of 31 January 1994 (BGBl. I, p. 168)?

Or, to phrase that question in more general terms:

Is a Member State prohibited from refusing a Turkish national who comes within the personal scope of Article 2 of Decision No 3/80 family benefits provided for under its law on the ground that that person does not possess an Aufenthaltsberechtigung or an Aufenthaltserlaubnis?

2. Is a Turkish national residing in the territory of a Member State a worker within the meaning of Article 2 in conjunction with Article 1(b) of Decision No 3/80 during periods when, pursuant to the law of that State, compulsory contributions to the social security pension scheme are deemed, in favour of that person, to have been paid in respect of time spent in bringing up a child?

3. Is a Turkish national residing in the territory of a Member State who, in addition to following a course of studies, is employed there on the basis of a corresponding Aufenthaltserlaubnis for up to 16 hours per week as an occasional worker to be regarded on that ground alone as a worker within the meaning of Article 2 in conjunction with Article 1(b) of Decision No 3/80, or in any event because that person is insured under a statutory accident insurance scheme against accidents at work?'

2 Decision No 3/80 is designed to coordinate the social security schemes of the Member States in order to allow Turkish workers who are employed in the Community, or have been in the past, and members of the families and their survivors to receive benefits in the traditional areas of social security.

To that end, Decision No 3/80 refers essentially to specific provisions of Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (hereinafter `Regulation No 1408/71'), (2) and to a number of provisions of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 (hereinafter `Regulation No 574/72'). (3)

3 Pursuant to Article 1(b) of Decision No 3/80, for the purposes of the decision `"worker" means:

(i) subject to the restrictions set out in Annex V, A. BELGIUM (1), to Regulation (EEC) No 1408/71, any person who is insured, compulsorily or on an optional continued basis, against one or more of the contingencies covered by the branches of a social security scheme for employed persons,

(ii) any person who is compulsorily insured against one or more of the contingencies covered by the branches of social security dealt with in this Decision, (4) under a social security scheme for all residents or for the whole working population, if such a person:

- can be identified as an employed person by virtue of the manner in which that scheme is administered or financed, or

- failing such criteria, is insured against some other contingency specified in the Annex under a scheme for employed persons, either compulsorily or on an optional continued basis.' (5)

4 The persons to whom Decision No 3/80 applies and the matters covered are defined, respectively, in Articles 2 and 4. Under Article 4, the decision `shall apply:

- 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 families of these workers, resident in the territory of one of the Member States,

- to the survivors of these workers'.

Article 4 then provides that Decision No 3/80 is to `apply to all legislation concerning the following branches of social security:

(a) sickness and maternity benefits;

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

(c) old-age benefits;

(d) survivors' benefits;

(e) benefits in respect of accidents at work and occupational diseases;

(f) death grants;

(g) unemployment benefits;

(h) family benefits.'

5 The Sozialgericht's order for reference also refers to the principle of equal treatment enunciated in Article 3(1) of Decision No 3/80. That provision is virtually identical to Article 3(1) of Regulation No 1408/71; it states: `Subject to the special provisions of this Decision, persons resident in the territory of one of the Member States to whom this Decision 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.'

6 Finally, for the purposes of this Opinion, Article 32 of Decision No 3/80 is important; it is one of the final provisions of the decision and states: `Turkey and the Community shall, each to the extent to which they are concerned, take the necessary steps to implement this Decision.' However, the proposal for an (EEC) Council Regulation laying down the procedure for implementation in the European Economic Community of Decision No 3/80, submitted by the Commission on 8 February 1983 (hereinafter `the proposed implementing regulation'), (6) has not been adopted.

7 To complete the outline of the legislative context of the main proceedings, reference will be made to the relevant provisions of German law regarding the residence of aliens and family benefits.

As the national court explains, the Ausländergesetz (Law on Aliens) includes under the general term `Aufenthaltsgenehmigung' (residence authorisation), four different types of residence status. Those relevant to these proceedings are the residence entitlement (Aufenthaltsberechtigung), the residence permit (Aufenthaltserlaubnis) and the accessory residence authorisation (Aufenthaltsbewilligung). (7)

8 The Aufenthaltsberechtigung is the document which allows the alien the most stable form of residence in Germany. Besides conferring an autonomous and unlimited right, it provides the holder with the same protection against any expulsion measure as is available constitutionally to persons granted a right of asylum.

9 The Aufenthaltserlaubnis too is granted without any explicit determination of its purpose by the administration and it is for an indeterminate period or else is extendible. That document may therefore allow an alien to reside on German territory for periods of unspecified duration.

10 The position is different in the case of the Aufenthaltsbewilligung, which is granted for a specified purpose (for example, for tourism or vocational training), is of limited duration and cannot in any circumstances lead to the subsequent issue of a permanent residence card. It is also granted to the alien's family members who are authorised to stay with him on German territory in order to make up, or continue to constitute, a family unit. The residence right of those family members is conditional upon the continuing validity of the main Aufenthaltsbewilligung of the alien who has been allowed to bring his family together.

11 Under Paragraph 1(3) of the Bundeskindergeldgesetz (Federal Child Benefit Law, hereinafter `BKGG'), in the amended version that entered into force on 1 January 1994, only aliens in possession of a Aufenthaltsberechtigung or an Aufenthaltserlaubnis are entitled to family benefits. As stated in the order for reference, by introducing that provision the German legislature sought to limit the circle of beneficiaries to aliens who were present on national territory on a stable and permanent basis.

12 Moreover, German law takes a peculiarly independent approach, as far as social security is concerned, to the education of children in Germany (that requirement is deemed to be satisfied where the parent responsible for such education is habitually resident in Germany). In particular, for children born after 31 December 1991, contributions (which are in fact...