1. Ankara Agreement: Basic Foundations of Social Security
Ankara Agreement, signed on 12 September 1963 and came into effect on 1 December 1964, constitutes the beginning of a process which provides for some significant rights in the field of social security between Turkey and the European Union. The following provisions of Ankara Agreement are the basis for social security rights and accepted as a ground for the right to move freely for Turkish citizens. These are,
- Article 9: The Contracting Parties recognize that within the scope of this Agreement and without prejudice to any special provisions which may be laid down pursuant to Article 8, any discrimination on grounds of nationality shall be prohibited in accordance with the principle laid down in Article 7 of the Treaty establishing the Community.
- Article 12: The Contracting Parties agree to be guided by Articles 48, 49 and 50 the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers between them.
- Article 13: The Contracting Parties agree to be guided by Articles 52 to 56 and Article 58 of the Treaty establishing the Community for the purpose of abolishing restrictions on freedom of establishment between them.
The mentioned articles of the Treaty establishing the Community, which are referred to in these articles, include provisions on right to move freely and equality of treatment. Ankara Agreement, which stipulates a three-term’s period for the realization of right to move freely, establishes the conditions, procedures, sequence and duration of the mentioned Transition Period in the Additional Protocol. In this Protocol, the principles of social security are specified in the Articles 36-41. Article 36 includes the regulations regarding the realization of workers’ right to move freely gradually within the specified period. Article 37 refers to the issue of not making any discrimination in terms of working conditions and salary of the Turkish workers employed in the Community. Other articles in the agreement are as follows:
- Article 38: While freedom of movement for workers between Member States of the Community and Turkey is being brought about by progressive stages, the Council of Association may review all questions arising in connection with the geographical and occupational mobility of workers of Turkish nationality, in particular the extension of work and residence permits, in order to facilitate the employment of those workers in each Member State. To that end, the Council of Association may make recommendations to Member States.
- Article 39: 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 Community and for their families residing in the Community.
- These provisions must enable workers of Turkish nationality, in accordance with arrangements to be laid down, 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 Community. These measures shall create no obligation on Member States to take into account periods completed in Turkey.The abovementioned measures must ensure that family allowances are paid if a worker’s family resides in the Community.
- Article 41: The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.
The above specified articles generally constitute the basis for the opened cases in Court of Justice of the European Communities by Turkish citizens. Apart from this in the Article 6 of the Ankara Agreement it is stated that “To ensure the implementation and the progressive development of the Association, the Contracting Parties shall meet in a Council of Association which shall act within the powers conferred upon it by this Agreement.” By way of this provision, the judgement calls regarding social security reached during the meetings of the mentioned Council of Association are taken as grounds to the applications made to international authorities, especially to CJEC, for protection of the rights of Turkish citizens.
2. Decision No. 3/80 of the Council of Association and Social Security
In its relations to EU, Turkey has a privileged position with respect to other countries. This privilege stems from Ankara Agreement and the Additional Protocol and Association Council Decisions (ACD) signed within the framework of this agreement.
In Ankara Agreement discrimination has been prohibited with the provision of the Article 9 “The Contracting Parties recognize that within the scope of this Agreement and without prejudice to any special provisions which may be laid down pursuant to Article 8, any discrimination on grounds of nationality shall be prohibited in accordance with the principle laid down in Article 7 of the Treaty establishing the Community.” This principle should be viewed together with the Articles 12 and 14 of the same agreement. Likewise, Article 12 provides for being guided by the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers and Article 14 provides for the necessity of making required attempts to abolish restrictions on the freedom of providing service. It is specified in Article 41 of the Additional Protocol that the Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.
In light of these general provisions, the main part that should be analysed is ACD numbered 3/80 and dated 19 September 1980 regarding the social security regimes applied by EU member states to the Turkish workers and their family members.
In the second article of the ACD no 3/80 the personal scope is specified as follows:
- to workers who are or have been subject to the legislation of one 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,
- to the survivors of these workers.
However there are some problems regarding the direct applicability of this ACD No. 3/80. Because in the cases concluded by CJEC, there is a decision in the direction of unenforceability of some provisions because of the fact that there is not an implementing regulation of the said Decision.
Besides, for “directly applicable provisions” there is no need for an implementing regulation and the mentioned provisions can be applied directly. The directly applicable provisions of ACD No. 3/80 are mostly related to the way of making decisions on the issues within their areas of jurisdiction of their states in EU. ACD No. 3/80, which is based on Ankara Agreement and Article 39 of the Additional Protocol, shall not be applied directly within the legislation of the community. Because according to the community legislation the applicability of such decisions related to all member states, depends on the implementing regulation which will be issued by unanimous vote of the European Council after obtaining information from European Commission. Although European Commission presented its opinion on the respective ACD and submitted its proposed regulation to the Council, this regulation has not been approved by the Council yet.
Source: Social Security Institution (SGK)
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