C-355/93

OPINION OF MR DARMON — CASE C-355/93

OPINION OF ADVOCATE GENERAL DARMON delivered on 12 July 1994 *

Mr President, 3. Articles 6 and 7 of Decision No 1/80 on Members of the Court, the development of the Association (hereaf­ ter 'the Decision') provide as follows:

1. The two questions referred for a prelimi­ nary ruling by the Verwaltungsgericht (Administrative Court) Karlsruhe, which 1 2 follow on from the Sevince and Kus judg­ ments, concern the interpretation of Deci­ 'Article 6 sion No 1/80 of 19 September 1980 of the Association Council established by the agreement creating an association between the European Economic Community and Turkey, signed at Ankara on 12 September 3 1963 (hereafter 'the Association Agree­ 4 ment'). 1. Subject to Article 7 on free access to employment for members of his family, a Turkish worker duly registered as belonging to the labour force of a Member State: 2. One of the objectives of that agreement is 'progressively securing freedom of move­ ment for workers' between the contracting 5 parties, guided by Articles 48, 49 and 50 of the EEC Treaty. Article 36 of the additional protocol lays down the time-limits for the — shall be entitled in that Member State, progressive attainment of such freedom of after one year's legal employment, to the movement, the detailed rules of which are renewal of his permit to work for the determined by the Association Council. same employer, if a job is available;

* Original language: French. 1 — Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461. 2 — Case C-237/91 Kus v Landeshaupstadt Wiesbaden [1992] ECR I-6781. —· shall be entitled in that Member State, 3 — An agreement concluded in the name of the Community by Council Decision 64/732/EEC of 23 December 1963 (pub­ after three years of legal employment and lished in English in OJ 1973 C 113, p. 2) and supplemented by an additional protocol of 23 November 1970, which subject to the priority to be given to entered into force on 1 January 1973 (OJ 1972 L 293, p. 1). workers of Member States of the Com­ 4 — With regard to that agreement, see my Opinion in Km, para­ munity, to respond to another offer of graphs 2 to 5. 5 — Article 12. employment, with an employer of his

The members of the family of a Turkish 5. Let me, at the outset, make two com­ worker duly registered as belonging to the ments. labour force of a Member State, who have been authorized to join him:

— shall be entitled — subject to the priority 6. First, in accordance with its settled case- to be given to workers of Member States 6 law, the Court has jurisdiction '... to give of the Community — to respond to any rulings on the interpretation of the decisions offer of employment after they have been adopted by the authority established by an legally resident for at least three years in association agreement and entrusted with that Member State; responsibility for its implementation ...'. 7I would refer, on this point, to my Opinions in Sevince 8and Kus. 9

— shall enjoy free access to any paid 6 — See Service, cited above, paragraphs 7 to 12, and Kus, cited employment of their choice provided that above, paragraph 9. 7 — KUS, paragraph 9. they have been legally resident there for 8 — Paragraphs 4 to 8. at least five years. 9 — Paragraphs 10 to 21.

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7. Secondly, the scope of Articles 6 and 7 of 10. As regards the right of residence, the decision must be clearly defined. It is Hayriye Eroglu was issued only with per­ necessary to determine the legal status of a mits of limited duration allowing her first to Turkish national who already possesses, continue her studies and secondly to work under domestic law, a work permit and a for company B and then company F. right of residence, if required, since he is duly registered as belonging to the labour 10 force. The conditions under which the per­ son concerned acquired the right to enter and stay in the host Member State in ques­ tion are a matter for domestic law alone.

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authorized to take up paid employment, she cle 7 may, by the same token, obtain the was not duly registered as belonging to the extension of his residence permit. labour force and she had not recently held legal employment within the meaning of that provision.

The application of the first indent of Article 6(1)

14. Before the Verwaltungsgericht Karlsruhe, Hayriye Eroglu relied on the first 17. Is the first indent of Article 6(1) applica­ indent of Article 6(1) and the second para­ ble to a Turkish national whose situation is graph of Article 7 of the Decision to claim characterized as follows: that, as the child of a Turkish worker legally employed in Germany since 1976, she had the right to respond to any offer of employ­ ment.

— she is a graduate of a German university;

22. We know that, in the words of Article 12 of the Agreement appearing in Title II on the transitional stage of the association, 'the (a) He is a 'worker' within the meaning of Contracting Parties agree to be guided by the Agreement. Articles 48, 49 and 50 of the Treaty establish­ ing the Community for the purpose of pro­ gressively securing freedom of movement for workers between them'.

(b) He is duly registered as belonging to the labour force of the host Member State. 23. As I demonstrated in my Opinion in 12 Kus, Turkish workers are no longer in the same position as nationals of other non- member countries. In comparison with the latter, they enjoy priority as regards recruit­ (c) He has a job and is seeking the renewal ment by virtue of Article 8(1) of the deci­ of his permit to work for the same sion; the host Member State may not refuse employer. to renew a work permit except in the cir­ cumstances determined by the decision, and so forth.

20. Let me examine those three conditions in 24. They do not, however, fall to be treated turn. in just the same way as Community workers (or, now, as nationals of a member country

11 — Paragraph 26 of the grounds, paragraph 2 of the operative part and points 9 to 50 of my Opinion in the case. 12 — Points 64 and 65.

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27. In its judgments in Kziber 13 and 14 Yonsfi with regard to the EEC-Morocco 30. Consequently — in the absence of any­ Cooperation Agreement, the Court analysed thing to indicate a restrictive interpretation the concept of a worker in the light of the — the concept of worker as it appears in the provisions of the agreement and of the agreement cannot be interpreted very differ­ objective they pursued. ently from the Community meaning of

13 — CASEC-18/90 Onem v Kziber [1991] ECR I-199. paragraph 15 — The decision of 20 December 1976 concerns lhe implemen­ 27. tation of Article 12 of the Agreement. 14 — CASEC-58/93 Yousfi v Belgan State [1994] ECR I-1353. 16 •— Third recital in the preamble to Decision I/S0. emphasis paragraphs 21 to 23. added.

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worker as expounded in the judgment of the —b— Court in Le Manoir.

33. What does 'duly registered as belonging to the labour force' mean for the purposes of '... the concept of worker, within the mean­ that decision? ing of Article 48 of the Treaty ... has a Com­ munity meaning .... Any person who pursues an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, is to be treated as a worker. The essential characteristic of the employ­ 34. That expression appears several times in ment relationship is that for a certain period Decisions Nos 2/76 and 1/80. of time a person performs services for and under the direction of another person in return for which he receives remuneration 18 ...'.

41. What matters, therefore, is that the worker's position should be 'in order' as regards the laws of the host Member State. 37. It is clear that a Turkish worker must not be able to acquire rights during a period in which he is granted only a revocable right of residence, while awaiting the outcome of the action which is to settle whether or not he is entitled to such a right, '... if a judicial decision once and for all denying him that 22 right is not to be deprived of all effect ...'. 42. The national court cannot fail to note that the applicant in the main proceedings was issued with a non-renewable residence authorization valid until 1 March 1992 in order to pursue activity as a trainee with company F, and that she held a general work permit of indefinite duration. 38. To be duly registered as belonging to the labour force, it is therefore necessary, first, to have an undisputed right of residence.

39. If that is the case, the temporal scope or even the substantive scope of that right may be limited to certain posts.

43. Does this case relate to an application for 21 — Paragraph 1 of the operative part. the renewal of a permit to work for the same 22 — Kus, paragraph 16. employer?

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44. As the German Government pointed 48. That situation is not covered by the first out, 'the aim of the first indent of Article indent of Article 6(1). 6(1) is to ensure that there is no interference with continuity of employment caused by the non-renewal of the work permit for reasons 23 connected with the labour market'.

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52. I shall examine three points in turn: when, regard being had to its wording and the purpose and nature of the agreement itself, the provision contains a clear and pre­ cise obligation which is not subject, in its implementation or effects, to the adoption of 27 any subsequent measure.' (a) Does the second paragraph of Article 7 have direct effect?

(b) Is its application conditional on a resi- 54. The Court quoted that passage in dence authorization originally having Sevince, and added: been issued with a view to family reuni- fication?

(c) May a right to residence be inferred 'The same criteria apply in determining from a right to work? whether the provisions of a decision of the Council of Association can have direct 2 effect.' 8

— a —

— whilst the Member States have the power to take administrative measures for the implementation of the decisions of the Council of Association, they may not 'make conditional or restrict the applica­ —b— tion of the precise and unconditional right which those decisions ... grant to 33 Turkish workers';

59. Article 7 governs access to the labour market for members of a Turkish worker's — non-publication of those decisions can­ family 'who have been authorized to join not deprive an individual of the power '... him'. Does that condition presuppose autho­ to invoke, in dealings with a public rization for the purpose of reuniting the authority, the rights which those deci­ family? If so, may that condition be relied on 34 sions confer on him'. against the children of a Turkish worker whose position is governed by the second paragraph of that article? 31 — Finding of the Court in Demirel, paragraph 23. 32 — Paragraph 21. 33 — Paragraph 22. 34 — Paragraph 24. 35 — Paragraph 17.

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60. Let me consider the scheme of Article 7. without priority for Community workers.

61. In conferring on the members of a Turk­ 63. In their capacity as 'members of the fam­ ish worker's family rights in the field of ily', the children of a Turkish worker may employment, the first paragraph lays down 36 certainly rely on that provision. two conditions:

OPINION OF MR DARMON — CASE C-355/93

that the child should, as in the first para­ 69. Furthermore, a requirement that the graph, have been 'authorized to join' his par­ child should enter the Member State with a ents. view to family reunification would in effect render the provision inapplicable to children over the age of 18 who, at least in certain Member States, no longer have the right to 37 enter for that purpose.

66. In this instance, Hayriye Eroghi obtained a residence permit in 1980, not with a view to re-uniting the family but for the purposes of study, and thus of completing 70. Finally, the Court has held that Article the vocational training which is precisely the 6(1) of the Decision does not make the right condition laid down in the second paragraph to renewal of a work permit dependent on of Article 7 for access to employment. 'the circumstances in which the rights to enter 3 and remain were obtained'. 8

67. Article 7 does not prescribe specific con­ 71. Similarly, the second paragraph of Arti­ ditions for entry into a Member State or cle 7 (unlike the first paragraph), does not lay issue of a residence permit. The phrase 'who down any condition with regard to the right have been authorized to join him' in the first to enter and remain and the first indent of paragraph does not apply equally to the sec­ Article 6(1) applies, whatever the reason for ond paragraph. The second paragraph does which the person concerned entered the host not preclude the issue of a permit for the Member State. purpose of following a university course.

'A Turkish worker who satisfies the condi­ tions of the first or third indent of Article 6(1) of Decision No 1/80 may rely directly on those provisions to obtain the extension of his residence permit in addition to that of 'A right of residence is essential for access to 39 41 his work permit'. and performance of paid employment'.

74. With respect to the third indent of Arti­ cle 6(1), the Court cited Sevince and 75. That argument can undoubtedly be observed that: applied to the second indent of the first para­ graph of Article 7 which, like the third indent of Article 6(1), provides for free access to any paid employment.

'Even though that provision merely governs the circumstances of the Turkish worker as regards employment and not as regards his right of residence, those two aspects of the personal situation of a Turkish worker are 76. Can it likewise be applied to the situa­ closely linked and ... by granting to such a tion of the child of a Turkish worker who worker, after a specified period of legal does not have the right to 'free access to any employment in the Member State, access to paid employment of his choice' (third indent any paid employment of his choice, the pro­ of Article 6(1)) but who may 'respond to any visions in question necessarily imply — since offer of employment' in the host Member otherwise the right granted by them to the State? Turkish worker would be deprived of any

40 — Paragraph 29. 39 — Paragraph 3 of the operative part. 41 — Paragraph 33.

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