10 Colum. J. Eur. L. 379 (2004)

Andrea Ott, Lecturer in European Law, Maastricht University, The Netherlands.

Exactly ten years passed between the conclusion of the first Europe Agreements in 1991 and the first judgments on the Europe Agreements by the European Court of Justice (ECJ) in 2001. The Europe Agreements have prepared the central and eastern European countries Hungary, Poland, Czech Republic, Slovak Republic, Slovenia, Estonia, Latvia, Lithuania, Romania and Bulgaria for accession and established a free trade area. EU and CEEC (central eastern European countries) citizens had certain mutual rights in this free trade area, which was further elaborated since 1994 by a complex pre-accession strategy consisting of the Europe Agreements, Accession Partnerships and financial aid programs of PHARE and the pre-accession structural funding SAPARD and ISPA. When the first agreements between the European Communities and Hungary and Poland were concluded in 1991, it was not foreseeable that the accession process would only be accomplished in May 2004 for the first eight CEEC and would exclude Bulgaria and Romania.

The scope of the rights established by the Europe Agreements for CEEC citizens is politically controversial as exemplified by the accession negotiations between current and new Member States regarding the free movement of persons since 2000. A substantial number of migrant workers from the CEEC are already working in the current Member States. One estimate names 850,000 registered migrants from the CEEC in 1999 with 300,000 of these participating in the labor force. Some Member States such as Austria, Belgium, Finland, Germany, Greece, Sweden and the UK concluded bilateral agreements which regulate the inflow of guest workers and seasonal workers. The majority of immigrants from the CEEC reside in Germany, followed by Austria, the UK and Italy. As a result, the neighboring Member States Germany and Austria in particular insisted on long transitional non-application of the free movement of workers acquis with 80 per cent of migrant workers already residing in their respective countries. In the end, current and new Member States agreed on a more flexible transitional arrangement with a minimum fixed two year period of non-application of the acquis on the movement of workers. Therefore, it is no coincidence that the ECJ did not rule on the Europe Agreements when the negotiations on the movement of persons were first begun, preferring instead to wait and see which rights would be granted after accession to avoid creating a major discrepancy between the rights given in the pre-accession phase as compared to the rights given in the accession phase.

However, as long as the Accession Treaty is not yet in force, the rights of these third-country citizens will be defined by the Europe Agreements. Generally, according to the established case law of the ECJ, the interpretation of association agreements can differ depending on the concrete interpretation of the context, scheme and scope of the respective Association Agreement and its respective provisions. All of these Association Agreements with the CEEC include a non-discrimination principle in the chapters on movement of persons and on establishment that are worded identically to the non-discrimination clauses of the EC Treaty such as Article 39 paragraph 2 EC Treaty. Unlike the EC Treaty provisions, however, their scope and beneficial effect on the CEEC citizen are disputed. Before the Deutscher Handballbund E V v. Maros Kolpak case was decided, Member States’ courts disagreed whether professional sportsmen from the candidate countries have an ultimate and unlimited right of free movement based on the provisions of the Europe Agreements. The Europe Agreement cases decided so far focused on the establishment provisions of the Europe Agreements, which are differently worded than the workers provisions. According to the workers provisions, legal employment is a precondition for relying on the non-discrimination clause. In the case Land Nordrhein-Westfalen v. Beata Pokrzeptowicz-Meyer, the ECJ first analyzed the workers provisions and the Court decided on the non-discrimination clause on  workers and the relevant Article 37 of the Polish Europe Agreement. The ECJ came to the conclusion that these provisions have to be regarded as directly effective and that the interpretation of the non-discrimination clause of the EC Treaty can be extended to the Europe Agreement provisions given the purpose and content of the Europe Agreement.