A Survey of Principal Decisions of the European Court of Justice Pertaining to International Law in 1990-91 1. Facts 2. The Judgment 3. Analysis José M. de Areilza 1 Full text available: PDF format * I. Sevince Case 192/89, S. Z. Sevince v. Staatsecretaris van Justitie, Decision of 20 September 1990 (not yet reported) 1. Facts Mr. Sevince, a Turkish national, was working in the Netherlands with a residence permit. After separating from his wife (also a Turkish citizen with a residence permit), he applied for and was denied an extension of his permit. He appealed the denial to the Raad van Staat. In support of his appeal, Mr. Sevince cited two decisions of the Council of Ministers of Associations of the EC-Turkey Association Agreement. These decisions held that a Turkish national who had belonged to the `regular employment market' for at least four years should have free access to employment of his choosing. At issue was whether the decisions of the Council of Associations have direct applicability in the legal order of the Community. The Raad van Staat submitted a preliminary reference to the ECJ, under Article 177 of the Treaty. It requested an interpretation of both the meaning and the legal effect of the Council decisions cited by Mr. Sevince. 2. The Judgment Adopting the Opinion of the Advocate General, the Court declared that decisions of the Council of Ministers of Associations are within the Court's jurisdiction. The Court further held that these decisions can have - and in this case do have - direct applicability. The Court situated decisions of the Council within the EC legal order (and thus subjected them to the Court's judicial review under Article 177) by applying the definition of its jurisdiction developed in Greece v. Commission.2 On the more complex question of direct applicability of Council decisions, the Court employed the conditions for direct applicability used in Demirel to analyze provisions of the Agreement. The test proposed by the Court involved examining both the terms, object and nature of the Agreement and the language of the decision itself. To be directly applicable, a decision must contain a clear, precise and unconditional obligation. The Netherlands and Federal Republic of Germany opposed direct applicability, citing the conditional nature of the decisions and their imprecision. In addition, they argued that every decision of the Council requires an act of transposition by national legislation. The Federal Republic also insisted on finding a common principle of necessary transposition of the decisions of the Council of Associations, which would allow exceptions such as those for decisions conferring individual rights. The German position was based on Article 2 of the 12 September 1963 Agreement between the Member States dealing with measures for the application of Council decisions. The Advocate General rejected these arguments citing Greece v. Commission.3 There the Court had allowed the execution of decisions without the adoption of complementary measures and had rejected a general application of Article 2 of the 1963 Agreement cited by Germany. The Advocate General then proposed the following distribution of the burden of proof: decisions of the Association Council are a priori susceptible of direct applicability, in a way that resembles the direct applicability of articles of an international agreement (See Demirel). In adopting this position, the Court remained loyal to its classic conception of direct effect as the default solution to applicability questions. It is important to note that the ECJ's reasoning does not require that the Agreement which gives rise to the decisions to be itself wholly directly applicable. The gap from the programmatic nature of part of an international agreement to the direct applicability of all of it, is bridged validly by the Council's decisions alone. At the same time, the Court accepted, at least in theory, that Member States can participate in the modalities of applying rights conferred by an international agreement. But it envisioned that participation to be merely a precision of the obligation defined in a decision. It did not accept the possibility that national legislation could condition or restrict rights created by the clear content of a decision. The Court minimized the importance of saving clauses incorporated in agreements by Member States. It held that only in specific cases (implicitly, in critical ones) can they affect the direct application of decisions. The direct applicability of decisions, as an abstract feature, is not curtailed by what may happen in concrete examples of derogation of that effect, which, the Court hints, cannot be purely discretionary instances. Finally, the Court held that non-publication of Council of Association decisions is not a fact to be considered in assessing their direct applicability, since the possibility of application of EC law is not generally conditioned to its previous publication. 3. Analysis This case begins where the Demirel precedent ended. Demirel dealt with the possibility of direct applicability of articles of the Association Agreement. It did not go so far as to extend this possibility to the decisions of the Council of Ministers of Associations. In Sevince, the Court followed the logic of the classical discussion on direct effect of directives: there is nothing against it, so there is the possibility of direct effect. Furthermore, it imitated the empiricism of Defrenne v. Sabena 4; it is possible to give direct effect to only a part of a legislative instrument. To justify its reasoning, the ECJ relied on the `specific nature of decisions' (of the Council of Associations). As the case shows, however, these decisions create rights erga omnes; thus, in terms of effects, they are not significantly different from a piece of general legislation, despite being painted as mere measures of execution inspired by articles with limited reach. The minimal importance the Court attached to the non-publication of decisions shows once again the teleological approach the Court takes when assessing the direct effect of EC law. The Court gives greater weight to the purpose of the legislative instrument and the essence of its obligation than to its formal aspects. * The free viewer (Acrobat Reader) for PDF file is available at the Adobe Systems. 1 Lic. en Derecho, Univ. Complutense de Madrid; LL.M., S.J.D. Candidate, Harvard Law School. 2 Case Greece v. Commission, para. 12. 30/88, [1988] ECR 3711. 3 Ibid. 4 Case Defrenne v. Sabena, 42/75, [1976] ECR 455.
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