C-434/93

O P I N I O N O F MR ELMER — CASE C-434/93

OPINION OF ADVOCATE GENERAL ELMER delivered on 28 March 1995 *

Introduction Bozkurt was employed as a driver in interna- tional transport on routes to the Middle East driving lorries registered in the Netherlands.

1. In this reference for a preliminary ruling the Court is asked to decide whether a Turk- ish national who has been employed as a driver in international transport with a Netherlands company but who has become In the periods between his journeys and dur- permanently incapacitated for work as a ing his holidays and similar periods he result of an accident at work has a right of resided in the Netherlands. According to residence in the Netherlands in accordance Netherlands legislation on aliens a work per- with the Association Agreement between the mit is not required for work as a driver in E E C and Turkey * and Decisions N o international transport. Nationals of third 2/76 and N o 1/80 of the Association Council countries in employment of that kind established by that Agreement. receive, according to information supplied by the Netherlands Government, a visa for one year at a time with a right of residence of up to three months at a time, with a max- imum of nine months' total residence in a year, and subject to those restrictions of time Facts they may spend their holiday and leisure periods in the Netherlands without a resi- dence permit.

2. Ahmet Bozkurt is a Turkish national and was from at least 1979 employed by Rynart Transport BV, a legal person, whose head office is in Klundert in the Netherlands. The contract of employment between Boz- kurt and Rynart Transport BV was drawn up in Dutch and governed by Netherlands law. * Original language: Danish. In addition Bozkurt was covered by the 1 — Agreement establishing an Association between the Euro- pean Economic Community and Turkey, signed in Ankara Netherlands social security system as a result on 12 September 1963 (English version published in O J of his employment. In 1988 following an 1973 C 113, p. 1) and brought into force on behalf of the Community by a Council Decision of 23 December 1963. accident at work he was declared perma-

Community law 5. In pursuance thereof the Association Council adopted Decision N o 2/76 of 20 December 1976, which came into force o n that date, and Decision N o 1/80 of 19 Sep- tember 1980, which came into force o n 1 July 1980. 3 4. The Association Agreement between the European Economic Community and Tur- key was concluded on 12 September 1963, 2 — OJ 1973 C 113 of 24 December 1973. and according to Article 2(1) thereof, its aim 3 — The decisions have not been published.

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OPINION OF MR ELMER — CASE C-434/93

Article 2(1 )(b) and (c) of Decision N o — shall enjoy free access in that Member 2/76 provides as follows: State to any paid employment of his choice, after four years of legal employ- ment.

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an international lorry-driver in the ser- 4. If the answer to Question 3 is in the vice of a Netherlands company estab- affirmative: lished in the Netherlands can be regarded as (legal) employment in a Member State within the meaning of Article 2 of Decision N o 2/76 and/or Does the Turkish worker retain that Article 6 of Decision N o 1/80, and in right of residence ensuing from Article that respect are the same circumstances 2 of Decision N o 2/76 and/or Arti- to be taken into account mutatis mutan- cle 6 of Decision N o 1/80 if he becomes dis by the national courts? permanently and completely incapable of working?'

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8. In its judgment in Case C-192/89 Sevince Netherlands before Decision N o 1/80 came v Staatssecretaris van Justitie4 the Court into force on 1 July 1980. However, accord- declared that the interpretation of Decisions ing to the information available, Bozkurt N o 2/76 and N o 1/80 fell within the scope cannot prove a connection with the Nether- of Article 177 of the EEC Treaty. In the lands for a period further back than 1979. same case the Court stated that Thus the connection with the Netherlands when Decision N o 1/80 came into force on 1 July 1980 did not extend over the period of five years which, according to Article 2(1 )(b) of Decision N o 2/76, was determinative for the 'free access in that country to any paid 'Article 2(1 )(b) of Decision N o 2/76 and/or employment of his choice' authorized Article 6(1) of Decision N o 1/80 ... have thereby. direct effect in the Member States of the European Community'.

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Question 1 That connection criterion must also apply in the case of a worker/national of a Member State who is permanently employed on board a ship flying the flag of another Mem- ber State.

10. The court of reference refers in its ques- tion to the Court's judgment in Case 9/88 Lopes da Veiga v Staatssecretaris van It is for the national Court to decide whether Justitie. 5 That case concerned the question the employment relationship of the applicant whether a Portuguese national who, from a in the main proceedings has a sufficiently date prior to Portugal's accession to the close connection with the territory of the European Communities, had been carrying Netherlands, taking into account in particu- on an activity as an employed person on a lar the following circumstances ...: the appli- Netherlands ship should be regarded as a cant works on board a vessel registered in worker who was a national of one Member the Netherlands in the employ of a shipping State employed in the territory of another company incorporated under the law of the Member State within the meaning of Articles Netherlands and established in that State; he 7, 8 and 9 of Regulation (EEC) N o was hired in the Netherlands and the 1612/68 of the Council. 6 In paragraphs 15, employment relationship between him and 16 and 17 of the grounds of judgment the his employer is subject to Netherlands law; Court stated as follows: he is insured under the social security system of the Netherlands and pays income tax in the Netherlands.'

the other hand that the judgment in the Veiga judgment the Court interpreted the Lopes da Veiga case concerns the interpreta- concept of 'a worker ... who is employed in tion of a fundamental concept of Commu- the territory of another Member State' in nity law in the sphere of free movement of that regulation and established a number of workers, namely the concept of 'a worker ... criteria to be applied in assessing it. w h o is employed in the territory of another Member State' within the meaning of Arti- cles 7, 8 and 9 of Regulation N o 1612/68 of the Council and that it cannot therefore be applied in connection with the interpretation of rules which originate in an association agreement and which govern the circum- The Association Council established by the stances of a national of a non-Member State Agreement of Association between the EEC on the labour market of a Member State. and Turkey adopted Decision N o 1/80 (and N o 2/76) in pursuance of Article 12 of the agreement from which it appears that the parties were agreed on progressively securing freedom of movement for workers between them on the basis of Articles 48, 49 and 50 of 13. According to the case-law of the Court 7 the EEC Treaty. The Agreement of Associa- international agreements concluded by the tion and the decisions adopted in pursuance Community must be interpreted in the light thereof thus refer to the rules of Community of their wording and regard being had to the law in the field of free movement of workers. object they pursue. The interpretation which the Court has given to similar provisions or concepts in the Treaty or secondary Com- munity legislation cannot be directly trans- posed to an international agreement or t o provisions issued in pursuance thereof, inas- much as it must first be considered whether Furthermore, since in Decision N o 1/80 (and the wording and scope of the agreement in N o 2/76) the expression 'employment ... in question prevent it. ... that Member State' is used and since that concept must correspond to the above- mentioned concept 'a worker ... who is employed in the territory of another Mem- ber State' in Articles 7, 8 and 9 of Regulation N o 1612/68, it must be obvious that these 14. For the implementation of Articles concepts should be interpreted in the same 48 and 49 of the Treaty on freedom of move- way and thus use the criteria laid down in ment for workers Regulation N o 1612/68 of the Lopes da Veiga judgment. the Council lays down more detailed rules for eligibility for employment in the other Member States to which nationals of the Member States are entitled. In the Lopes da

much as, in its judgment in Case concerned, as in that judgment, has worked C-18/90 Kziber, 8 it decided as to the scope on board a ship flying the flag of another of a provision in the part of the EEC- Member State or has, as in this case, worked Morocco Cooperation Agreement relating to as the driver of a motor vehicle registered in cooperation in the field of labour. The provi- a Member State. sion prescribed that as regards Moroccan workers employed in a Member State a social security scheme was to be applied excluding all discrimination on the basis of nationality as compared with nationals of Member States in which the persons con- 17. The first question must therefore be cerned were employed. The Court declared answered to the effect that the criteria laid with regard to that provision that: down by the Court in the Lopes da Veiga judgment must be correspondingly applied as regards the interpretation of the concept of 'employment ... in that Member State' in Article 6(1) of Decision N o 1/80 of the Association Council established by the Agreement of Association between the EEC and Turkey. It is for the national court to decide whether Ahmet Bozkurt's relation- 'The concept of social security in Article ship of employment has a sufficiently close 41(1) of the Agreement must be understood link with Netherlands territory, whereby the by means of an analogy with the identical following circumstances inter alia should be concept in Regulation N o 1408/71 of the regarded as the basis: Ahmet Bozkurt was Council of 14 June 1971 on the application employed by a Netherlands firm; the con- of social security schemes to employed per- tract of employment was concluded in sons and their families moving within the Dutch and governed by Netherlands law; he Community ...' drove lorries registered in the Netherlands and was covered by the Netherlands social security system, and after becoming perma- nently incapacitated for work owing to an accident at work he now receives benefit from the Netherlands; he has resided in the Netherlands in the periods between his jour- neys and during his holidays. 16. The connection factor with regard to professional activities which are pursued, partially or temporarily, outside the territory of the Community — namely that 'the legal relationship of employment could be located Questions 2 and 3 within the territory of the Community or retained a sufficiently close link with that ter- ritory' — must moreover in my view be applied irrespective of whether the worker

19. The basis for the answer to these ques- tions must be that Article 6(1) of the Associ- ation Council's Decision N o 1/80 gives Turkish workers a right to continued employment in so far as they have had legal The fact nevertheless remains that those two employment in a Member State for a speci- aspects of the personal situation of a Turkish fied length of time. That right to continued worker are closely linked and that by grant- employment must imply that if those condi- ing to such a worker, after a specified period tions are met the worker also has a right of of legal employment in the Member State, residence, since otherwise the right to access to any paid employment of his choice, employment would be deprived of any the provisions in question necessarily imply effect. — since otherwise the right granted by them to the Turkish worker would be deprived of any effect — the existence, at that time, of a right of residence for the person concerned.'

The provision cannot however be assumed to govern the question of the right to employment and residence in the Member 20. Article 6(1) of Decision N o 1/80 lays States for Turkish workers who do not meet down no independent conditions for the these conditions as to time and thus do not employment to be 'legal'. If the meaning had have the right, granted in the provision, of been that only employment pursued by vir- continued employment (and residence). It is tue of an individual work permit or other therefore the legislation of Member States special form of permit, for example residence which prescribes whether, and if so under what conditions, Turkish nationals have the right of entry and of residence in their terri- 9 — [1990] ECR 1-3461. See also the judgment in Case tory and of pursuing employment there. C-355/93 Eroglu [1994] ECR I-5113.

The Court accordingly stated as follows in the judgment in Case C-192/89 Sevince, pre- viously cited, 10 regarding the interpretation of the expression 'legal employment' in Arti- 22. Apart from the situations expressly gov- cle 2(l)(b) of Decision N o 2/76 and/or Arti- erned by Article 6(1) it may thus be assumed cle 6(1) of Decision N o 1/80: that according to Decision N o 1/80 of the Association Council there is nothing to pre- vent a Member State from allowing Turkish nationals to perform work only if they are in possession of a residence and/or work per- mit. Conversely the agreement cannot be assumed to prevent a Member State from 'The legality of the employment within the giving Turkish nationals a right of entry meaning of those provisions, even assuming without a visa and/or a right of residence that it is not necessarily conditional upon and employment without a residence or possession of a properly issued residence work permit. permit, nevertheless presupposes a stable and secure situation as a member of the labour force' paragraph 30.

27. The German Government, the Nether- lands Government, the Greek Government and the United Kingdom have all claimed on the contrary that Article 6 of the Association 24. O n those grounds I suggest that the Council's decision does not govern the ques- Court should reply to the second and third tion of the right of residence of a Turkish questions together, to the effect that 'legal' national who becomes permanently incapac- employment in a Member State within the itated for work after an accident at work, so meaning of Article 6(1) of Decision N o that the question is a matter for the individ- 1/80 refers to the individual Member State's ual Member State's legislation. legislation as to the conditions in which it is legal or, as the case may be, illegal to pursue such employment and consequently to be resident in the territory of the Member State in question, without laying down any requirement that the employment shall be 28. As may be seen from the answer to the pursued subject to a formal work and/or res- second and third questions, it is, to start idence permit. with, the Member States' legislation which lays down whether, and if so in what condi- tions, Turkish nationals have a right of entry and of residence in their territory and of pur- suing employment there. Question 4

A Turkish worker who has engaged in legal employment in a Member State for a period 25. By the fourth question the court of ref- referred to in Article 6(1) has, however, a erence is seeking clarification as to whether a right, to the extent provided in that article, Turkish national retains the right of resi- of continued employment in the Member dence which follows from Article 6 of State concerned, including — so that the Decision N o 1/80 of the Association Coun- right to employment shall not be deprived of cil if he becomes permanently totally inca- any effect — the right of residence whilst the pacitated for work. employment is being pursued.

30. The second sentence of Article 6(2) of As the first sentence of Article 6(2) is drafted the Association Council's Decision N o in the various language versions it is not 1/80 provides that periods of involuntary altogether clear whether absence due to acci- unemployment and long absences on dents at work must also be of short duration account of sickness shall not be treated as to be included in the calculation of periods periods of legal employment. Thus in reck- of legal employment within the meaning of oning the period laid down in Article 6(1), Article 6(1). In my view however the most periods of involuntary unemployment and obvious interpretation of the provision is long absences on account of sickness are that in that case too the absence is required excluded. That part of the second sentence of to be of short duration if it is to be counted Article 6(2) is, like the first sentence, towards the periods of legal employment. intended to clarify the substance of the con- Moreover the expression 'absence' must ditions of time on which the rights estab- assume that at some time the person con- lished by Article 6(1) may take effect, but it cerned will return to work and can hardly adds nothing to the description therein of include permanent incapacity for work. the substance of those rights.

But irrespective of how the statement of cases listed in the first sentence of Article 31. The second sentence of Article 6(2), 6(2) is to be interpreted, it must be stressed however, provides at the same time that peri- that the provision only goes further into the ods of involuntary unemployment or long

absences on account of sickness are not to 33. The case shows that the Agreement of affect the rights acquired as a result of the Association has certainly drawn its inspira- preceding period of employment. This must tion from Articles 48, 49 and 50 of the imply that the Turkish worker will not lose, Treaty in laying down the rules of Decision for example by being sick for a long period, N o 1/80 (and N o 2/76). However, it may be the rights he has acquired under Article 6(1). clearly seen from the recitals to the decision However, in my view there is no basis for that the purpose of the provisions was that assuming that the expression 'long absences freedom of movement of workers between on account of sickness' includes permanent the EEC and Turkey was to be gradually incapacity for work, as already suggested in introduced. The purpose of the decisions was section 29 with regard to the first sentence of therefore not to introduce complete freedom Article 6(2). of movement of labour between the Member States of the Community and Turkey. The rules of Decision N o 1/80 (and N o 2/76) are thus only a step on the way towards the gradual realization of free movement of labour between the Community and Turkey. It thus seems appropriate to assume that the object of the Agreement of Association was to introduce free movement of labour by stages by first adopting rules governing But regardless of which situations are Turkish nationals' access exclusively to assumed to be covered by the second sen- employment, whereas it has not yet been tence of Article 6(2) it must be stressed that found necessary to adopt rules correspond- that part of the provision likewise adds noth- ing to those in Regulation (EEC) N o ing to the description in Article 6(1) as to the 1251/70 of the Commission n implementing substance of the right. The right which the Article 48(3)(d) of the Treaty on the right to Turkish worker thus does not lose by a long remain resident in the territory of a Member absence on account of sickness after having State. legal employment for four years in a Mem- ber State thus remains only 'free access ... to any paid employment of his choice' and — derived from that — a right of residence whilst that employment is being pursued.

— The criteria laid down by the Court in the Lopes da Veiga judgment must be correspondingly applied as regards the interpretation of the concept of 'employment ... in that Member State' in Article 6(1) of Decision N o 1/80 of the Association Council established by the Agreement of Association between the EEC and Turkey. It is for the national court to decide whether Ahmet Bozkurt's relationship of employment has a sufficiently close link with Neth- erlands territory, whereby the following circumstances inter alia should be regarded as the basis: Ahmet Bozkurt was employed by a Netherlands firm; the contract of employment was concluded in Dutch and governed by Neth- erlands law; he drove lorries registered in the Netherlands and was covered b y the Netherlands social security system, and after becoming permanently inca- pacitated for work he now receives benefit from the Netherlands; he has resided in the Netherlands in the periods between his journeys and during his holidays.

— The expression 'legal' employment in a Member State within the meaning of Article 6(1) of Decision N o 1/80 refers to the individual Member State's leg- islation as to the conditions in which it is legal or, as the case may be, illegal to be thus employed and consequently to be resident in the territory of the Member State in question, without laying down any requirement that the employment shall be pursued subject to a formal work and/or residence per- mit.

— Article 6 of Decision N o 1/80 of the Association Council does not give Turk- ish nationals who have become permanently incapacitated for work the right of continued residence in a Member State.