61982J0077

FREE MOVEMENT OF PERSONS - WORKERS - DEROGATIONS - RESTRICTIVE INTERPRETATION - ACT OF ACCESSION OF THE HELLENIC REPUBLIC - TRANSITIONAL PROVISIONS - WORK PERMIT - FIRST GRANT TO A GREEK NATIONAL - CONDITIONS - STRENGTHENING OF NATIONAL RESTRICTIONS AFTER THE ENTRY INTO FORCE OF THE ACT OF ACCESSION - PROHIBITED

( EEC TREATY , ART . 48 ; ACT OF ACCESSION , ARTS 44 AND 45 ( 1 ))

THE TRANSITIONAL PROVISION CONTAINED IN THE SECOND SUBPARAGRAPH OF ARTICLE 45 ( 1 ) OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION OF THE HELLENIC REPUBLIC AND THE ADJUSTMENTS TO THE TREATIES CONSTITUTES A DEROGATION FROM THE PRINCIPLE OF THE FREE MOVEMENT OF WORKERS LAID DOWN IN ARTICLE 48 OF THE EEC TREATY . AS SUCH IT MUST BE INTERPRETED RESTRICTIVELY , AS IS APPARENT FROM ARTICLE 44 OF THE ACT OF ACCESSION WHICH LAYS DOWN THE PRINCIPLE THAT ARTICLE 48 OF THE EEC TREATY IS IMMEDIATELY APPLICABLE , SUBJECT TO THE TRANSITIONAL PROVISIONS CONTAINED INTER ALIA IN ARTICLE 45 OF THE ACT .

FROM THAT IT FOLLOWS THAT ARTICLE 45 ( 1 ) OF THE ACT OF ACCESSION MUST BE INTERPRETED AS NOT PERMITTING NATIONAL PROVISIONS CONCERNING THE FIRST GRANT OF A WORK PERMIT TO A GREEK NATIONAL TO BE MADE MORE RESTRICTIVE AFTER THE ENTRY INTO FORCE OF THE ACT OF ACCESSION .

IN CASE 77/82

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE SOZIALGERICHT ( SOCIAL COURT ) STUTTGART FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

ANASTASIA PESKELOGLOU

AND

BUNDESANSTALT FUR ARBEIT , NURNBERG ( FEDERAL EMPLOYMENT OFFICE , NUREMBERG ), REPRESENTED BY THE DIRECTOR OF THE ARBEITSAMT ( EMPLOYMENT OFFICE )

ON THE INTERPRETATION OF THE SECOND SUBPARAGRAPH OF ARTICLE 45 ( 1 ) OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION OF THE HELLENIC REPUBLIC AND THE ADJUSTMENTS TO THE TREATIES ( OFFICIAL JOURNAL 1979 , L 291 , P . 17 ),

1 BY AN ORDER DATED 15 FEBRUARY 1982 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 23 FEBRUARY 1982 , THE SOZIALGERICHT ( SOCIAL COURT ) STUTTGART REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF THE SECOND SUBPARAGRAPH OF ARTICLE 45 ( 1 ) OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION OF THE HELLENIC REPUBLIC AND THE ADJUSTMENTS TO THE TREATIES ( OFFICIAL JOURNAL 1979 , L 291 , P . 17 ), HEREINAFTER REFERRED TO AS ' ' THE ACT OF ACCESSION ' ' .

2 THAT QUESTION AROSE IN THE COURSE OF AN ACTION PENDING BEFORE THE SOZIALGERICHT STUTTGART BETWEEN MRS ANASTASIA PESKELOGLOU , A GREEK NATIONAL RESIDING IN THE FEDERAL REPUBLIC OF GERMANY , AND THE BUNDESANSTALT FUR ARBEIT NURNBERG ( FEDERAL EMPLOYMENT OFFICE , NUREMBERG ) IN RELATION TO MRS PESKELOGLOU ' S ENTITLEMENT TO A WORK PERMIT .

3 MRS PESKELOGLOU IMMIGRATED INTO THE FEDERAL REPUBLIC OF GERMANY ON 29 NOVEMBER 1980 IN ORDER TO JOIN HER HUSBAND THERE . ON 31 MAY 1981 SHE APPLIED FOR A WORK PERMIT TO ENABLE HER TO WORK IN A STUTTGART UNDERTAKING ; THAT APPLICATION WAS REFUSED BY THE COMPETENT EMPLOYMENT OFFICE ON THE GROUND THAT THE PLAINTIFF ' ' HAD NOT COMPLETED THE WAITING PERIOD OF FOUR OR THREE YEARS APPLICABLE IN THE CASE OF PERSONS JOINING THEIR SPOUSES ' ' .

4 ACCORDING TO THE SOZIALGERICHT , THE NATIONAL PROVISIONS APPLICABLE UNTIL 13 AUGUST 1981 , NAMELY ARTICLE 19 OF THE ARBEITSFORDERUNGSGESETZ ( LAW ON THE PROMOTION OF EMPLOYMENT ) AS AMENDED BY THE LAW OF 19 JUNE 1969 ( BUNDESGESETZBLATT I , P . 582 ), CONFERRED UPON THE SPOUSE OF A FOREIGN WORKER THE RIGHT TO THE GRANT OF A WORK PERMIT WHERE , REGARD BEING HAD TO THE SITUATION AND LABOUR MARKET DEVELOPMENTS , THE POSITION SOUGHT BY HIM CANNOT BE FILLED BY GERMAN WORKERS OF BY FOREIGN WORKERS HAVING A PRIOR CLAIM TO EMPLOYMENT .

5 ON THE OTHER HAND , AS A RESULT OF AN AMENDMENT OF THOSE PROVISIONS A WORK PERMIT FOR A FIRST EMPLOYMENT MAY , ACCORDING TO THE LAW IN FORCE ON 1 OCTOBER 1981 , BE GRANTED TO SPOUSES OF FOREIGN WORKERS IF THEY HAVE COMPLETED A PERIOD OF LAWFUL RESIDENCE OF FOUR YEARS IN THE FEDERAL REPUBLIC OF GERMANY ; HOWEVER , ' ' IN RESPECT OF EMPLOYMENT IN THOSE SECTORS OF THE ECONOMY IN WHICH THE NUMBER OF VACANCIES NOTIFIED TO THE EMPLOYMENT OFFICE CONSIDERABLY EXCEEDS THE NUMBER OF REGISTERED UNEMPLOYED , A WORK PERMIT MAY BE ISSUED TO SPOUSES AFTER A PERIOD OF LAWFUL RESIDENCE OF TWO YEARS ' ' .

6 THE SOZIALGERICHT , CONSIDERING THAT IT WAS NECESSARY TO DETERMINE THE DISPUTE ON THE BASIS OF THE AMENDED LEGISLATION , TOOK THE VIEW THAT THE MAIN ACTION WAS UNFOUNDED UNDER THE LAW IN FORCE ON 1 OCTOBER 1981 . HOWEVER , SINCE IN ITS VIEW THE AMENDMENTS THUS MADE MIGHT BE INCOMPATIBLE WITH ARTICLE 45 ( 1 ) OF THE ACT OF ACCESSION , IT DECIDED TO STAY THE PROCEEDINGS AND TO REFER TO THE COURT OF JUSTICE THE FOLLOWING QUESTION :

' ' MAY THE SECOND SUBPARAGRAPH OF ARTICLE 45 ( 1 ) OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION OF THE HELLENIC REPUBLIC AND THE ADJUSTMENTS TO THE TREATIES , WHICH CONSTITUTE ONE OF THE DOCUMENTS CONCERNING THE ACCESSION OF THE HELLENIC REPUBLIC TO THE EUROPEAN ECONOMIC COMMUNITY , TO THE EUROPEAN ATOMIC ENERGY COMMUNITY AND TO THE EUROPEAN COAL AND STEEL COMMUNITY ( BUNDESGESETZBLATT , PART II , P . 280 ET SEQ .), BE INTERPRETED AS PERMITTING THE EXISTING NATIONAL RULES CONTAINED IN ARTICLE 19 OF THE ARBEITSFORDERUNGSGESETZ ( LAW ON THE PROMOTION OF EMPLOYMENT ), WHICH COVER THE FIRST GRANT OF A WORK PERMIT TO A GREEK NATIONAL , ACCORDING TO WHICH THE WORK PERMIT IS TO BE ISSUED ACCORDING TO THE SITUATION AND EVOLUTION OF THE EMPLOYMENT MARKET IN THE LIGHT OF THE CIRCUMSTANCES OF THE INDIVIDUAL CASE , TO BE MADE MORE STRINGENT BY VIRTUE OF THE FACT THAT BY THE SIXTH LAW AMENDING THE ARBEITSFORDERUNGSGESETZ , NAMELY THE WARTEZEITGESETZ ( LAW ON WAITING PERIODS ) OF 3 AUGUST 1981 ( BUNDESGESETZBLATT , PART I , P . 802 ), IN CONJUNCTION WITH THE SIXTH ORDER , DATED 24 SEPTEMBER 1981 , AMENDING THE ARBEITSERLAUBNISVERORDNUNG ( WORK PERMITS ORDER ) ( BUNDESGESETZBLATT PART I , P . 1042 ), THE FIRST GRANT OF A WORK PERMIT IS MADE SUBJECT ALSO IN THE CASE OF A GREEK NATIONAL TO THE ADDITIONAL REQUIREMENT OF COMPLETION OF A WAITING PERIOD OF AT LEAST TWO YEARS?

' '

7 BY THAT QUESTION , THE SOZIALGERICHT STUTTGART IS ASKING WHETHER THE SECOND SUBPARAGRAPH OF ARTICLE 45 ( 1 ) OF THE ACT OF ACCESSION PERMITS NATIONAL RULES IN FORCE BEFORE 14 AUGUST 1981 TO BE MADE MORE STRINGENT AS REGARDS GREEK NATIONALS BY THE INTRODUCTION OF AN ADDITIONAL RESIDENCE REQUIREMENT AS ONE OF THE CONDITIONS FOR THE GRANT OF A WORK PERMIT .

8 THE FIRST SUBPARAGRAPH OF ARTICLE 45 ( 1 ) OF THE ACT OF ACCESSION STATES THAT ARTICLES 1 TO 6 AND 13 TO 23 OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNTY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ) ARE TO APPLY IN THE PRESENT MEMBER STATES WITH REGARD TO GREEK NATIONALS ONLY AS FROM 1 JANUARY 1988 . THE SECOND SUBPARAGRAPH PROVIDES THAT DURING THE TRANSITIONAL PERIOD THE PRESENT MEMBER STATES MAY MAINTAIN IN FORCE , WITH REGARD TO GREEK NATIONALS , NATIONAL PROVISIONS SUBMITTING TO PRIOR AUTHORIZATION IMMIGRATION UNDERTAKEN WITH A VIEW TO PURSUING AN ACTICITY AS AN EMPLOYED PERSON OR THE TAKING UP AND PURSUIT OF PAID EMPLOYMENT , OR BOTH .

9 THAT PROVISION IS THEREFORE APPLICABLE TO ALL GREEK WORKERS , WHEREAS THE POSITION OF SPOUSES AND DEPENDENT CHILDREN IS EXPRESSLY PROVIDED FOR IN ARTICLE 45 ( 2 ) OF THE ACT OF ACCESSION . THE FIRST SUBPARAGRAPH OF ARTICLE 45 ( 2 ) PROVIDES THAT ARTICLE 11 OF REGULATION NO 1612/68 , WHICH IN PARTICULAR CONFERS ON SPOUSES THE RIGHT TO TAKE UP EMPLOYMENT , IS TO APPLY IN THE PRESENT MEMBER STATES WITH REGARD TO GREEK NATIONALS ONLY AS FROM 1 JANUARY 1986 . AS A TRANSITIONAL MEASURE , THE SECOND SUBPARAGRAPH OF ARTICLE 45 ( 2 ) PROVIDES THAT THE MEMBERS OF THE FAMILY OF A WORKER WHO IS A NATIONAL OF A MEMBER STATE ARE TO HAVE THE RIGHT TO BE EMPLOYED IN THE TERRITORY OF THE MEMBER STATE WHERE THEY HAVE SETTLED WITH THE WORKER , IF THEY ARE RESIDENT FOR AT LEAST THREE YEARS IN THAT TERRITORY ; THAT PERIOD OF RESIDENCE IS TO BE REDUCED TO 18 MONTHS AS FROM 1 JANUARY 1984 . HOWEVER , THE THIRD SUBPARAGRAPH OF ARTICLE 45 ( 2 ) EXPRESSLY PROVIDES THAT THE RULES OF PARAGRAPH ( 2 ) ' ' SHALL NOT PREJUDICE MORE FAVOURABLE NATIONAL PROVISIONS ' ' .

10 IN THIS CASE , THE PLAINTIFF IN THE MAIN ACTION IS A GREEK NATIONAL , MARRIED TO A WORKER OF THE SAME NATIONALITY ; SHE IS THEREFORE COVERED BOTH BY ARTICLE 45 ( 1 ) AND BY ARTICLE 45 ( 2 ). AS THE QUESTION SUBMITTED BY THE NATIONAL COURT EXPRESSLY REFERS TO ARTICLE 45 ( 1 ), THAT PROVISION SHOULD BE CONSIDERED IN THE FIRST PLACE .

11 THE TRANSITIONAL PROVISION CONTAINED IN THE SECOND SUBPARAGRAPH OF ARTICLE 45 ( 1 ) OF THE ACT OF ACCESSION AUTHORIZES THE EXISTING MEMBER STATES TO MAINTAIN IN FORCE UNTIL 1 JANUARY 1988 WITH REGARD TO GREEK NATIONALS NATIONAL PROVISIONS SUBMITTING TO PRIOR AUTHORIZATION IMMIGRATION UNDERTAKEN WITH A VIEW TO PURSUING AN ACTIVITY AS AN EMPLOYED PERSON OR THE TAKING UP AND PURSUIT OF PAID EMPLOYMENT . IT SHOULD BE NOTED THAT THE SAME RIGHT WAS CONFERRED UPON GREECE IN ITS RELATIONS WITH THE OTHER MEMBER STATES .

12 THAT PROVISION , WHICH IS INTENDED TO PREVENT DISTURBANCE OF THE LABOUR MARKET BOTH IN GREECE AND IN THE OTHER MEMBER STATES AS A RESULT OF IMMEDIATE AND SUBSTANTIAL MOVEMENTS OF WORKERS FOLLOWING ACCESSION , CONSTITUTES A DEROGATION FROM THE PRINCIPLE OF THE FREE MOVEMENT OF WORKERS LAID DOWN IN ARTICLE 48 OF THE EEC TREATY . AS SUCH IT MUST BE INTERPRETED RESTRICTIVELY , AS IS APPARENT FROM ARTICLE 44 OF THE ACT OF ACCESSION WHICH LAYS DOWN THE PRINCIPLE THAT ARTICLE 48 OF THE TREATY IS IMMEDIATELY APPLICABLE , SUBJECT TO THE TRANSITIONAL PROVISIONS CONTAINED INTER ALIA IN ARTICLE 45 .

13 FROM THAT IT FOLLOWS THAT THE FEDERAL REPUBLIC OF GERMANY IS AUTHORIZED TO MAINTAIN EXISTING RESTRICTIONS BUT MAY NOT IN ANY CIRCUMSTANCES DURING THE TRANSITIONAL PERIOD MAKE MORE STRINGENT THE CONDITIONS ON THE TAKING UP AND PURSUIT OF EMPLOYMENT BY GREEK NATIONALS THROUGH THE INTRODUCTION OF FRESH RESTRICTIVE MEASURES .

14 ARTICLE 45 ( 2 ) DOES NOT AFFECT THAT CONCLUSION . INDEED , IT WOULD BE UNREASONABLE TO INTERPRET ARTICLE 45 ( 2 ) AS MEANING THAT THE NATIONAL LEGISLATURE WAS ENTITLED TO MAKE MORE STRINGENT THE CONDITIONS FOR THE ENTITLEMENT OF SPOUSES AND MEMBERS OF THE FAMILY ALONE TO TAKE UP EMPLOYMENT , SINCE THAT WOULD HAVE THE UNACCEPTABLE CONSEQUENCE THAT THE LATTER WOULD BE IN A MORE UNFAVOURABLE POSITION THAN GREEK NATIONALS IN GENERAL .

15 THE ANSWER TO THE QUESTION SUBMITTED SHOULD THEREFORE BE THAT ARTICLE 45 ( 1 ) OF THE ACT OF ACCESSION MUST BE INTERPRETED AS NOT PERMITTING NATIONAL PROVISIONS CONCERNING THE FIRST GRANT OF A WORK PERMIT TO A GREEK NATIONAL TO BE MADE MORE RESTRICTIVE AFTER THE ENTRY INTO FORCE OF THE ACT OF ACCESSION .

COSTS

16 THE COSTS INCURRED BY THE GREEK GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( FOURTH CHAMBER ),

IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE SOZIALGERICHT STUTTGART BY ORDER OF 15 FEBRUARY 1982 , HEREBY RULES :

ARTICLE 45 ( 1 ) OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION OF THE HELLENIC REPUBLIC AND THE ADJUSTMENTS TO THE TREATIES ( OFFICIAL JOURNAL 1979 , L 291 , P . 17 ) MUST BE INTERPRETED AS NOT PERMITTING NATIONAL PROVISIONS CONCERNING THE FIRST GRANT OF A WORK PERMIT TO A GREEK NATIONAL TO BE MADE MORE RESTRICTIVE AFTER THE ENTRY INTO FORCE OF THAT ACT .