C-171/95

TETIK v L A N D BERLIN

OPINION OF ADVOCATE GENERAL ELMER delivered on 14 November 1996 *

1. Is a Turkish worker entitled to a residence and 50 of the Treaty establishing the Com- permit in a Member State under the provi- munity for the purpose of progressively sions of Decision N o 1/80 of the EEC- securing freedom of movement for workers Turkey Council of Association in the case between them'. where he has voluntarily terminated his employment and after termination of his previous employment relationship wishes to seek new work in the Member State in ques- tion? That, in brief, is the issue which the Court must address in the present reference for a preliminary ruling.

The relevant rules of Community law 3. Article 36 of an Additional Protocol to the Association Agreement of 23 Novem- ber 1970 2 provided that the Council of Association was to decide on the rules neces- sary for the progressive implementation of 2. According to Article 2(1), the Association the free movement of workers between Agreement between the European Economic Member States of the Community and Tur- Community and Turkey 1 has as its aim 'to key in accordance with the principles set out promote the continuous and balanced in Article 12 of the Association Agreement. strengthening of trade and economic rela- tions between the Parties, while taking full account of the need to ensure an accelerated development of the Turkish economy and the living conditions of the Turkish people'.

Under Article 12 of the Agreement, the Par- ties agreed 'to be guided by Articles 48, 49

4. Pursuant to those provisions, the Council of Association adopted Decision N o 1/80 of * Original language: Danish. 19 September 1980, which entered into force 1 — Agreement establishing an Association between the Euro- pean Economic Community and Turkey, signed at Ankara on 12 September 1963 and concluded on behalf of the Com- munity by Council Decision 64/732/EEC of 23 December 1963 (Collection of the Agreements concluded by the Euro- pean Communities, Volume 3, p. 541). 2 — OJ 1973 C 113 of 24 December 1973.

6. According to the information which he Article 13 of Decision N o 1/80 provides has supplied, Mr Tetik moved on 1 August that: 1988 to Berlin, where, on the same day, he applied for an unlimited residence permit for the purpose of seeking unspecified employ- ment. He stated in this connection that he 'The Member States of the Community and intended to reside in Germany until about Turkey may not introduce new restrictions 2020. By decision of 19 January 1989, the aliens authority for the Land Berlin turned down his application for a residence permit 3 — The Decision has not been published. on the ground that the purpose of his

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residence in Germany had lapsed and that a 8. With the leave of the Bundesverwaltungs- residence permit could not be issued to him gericht (Federal Administrative Court), for the purposes of employment other than Mr Tetik thereupon appealed on a point of in shipping. law against the judgment of the Oberverwal- tungsgericht. He argued in that connection that the Oberverwaltungsgericht had misin- terpreted the conditions governing the issue of a residence permit under Article 6(1) of Decision N o 1/80.

Mr Tetik lodged a complaint against that decision. His appeal was turned down by decision of 12 October 1989 on the ground The questions submitted for a preliminary that it had for years been established prac- ruling tice, expressly confirmed in March 1989 by an officiai instruction to employees of the aliens authority, not to authorize on-shore employment for foreign seamen following termination of their employment in German shipping. The purpose of this rule was, fol- lowing the general halt to the employment of foreign labour in September 1973, to avoid 9. By order of 11 April 1995, the Bundesver- the continuing immigration of such foreign waltungsgericht stayed the proceedings and labour by means of temporary employment referred the following questions to the Court in shipping. for a preliminary ruling:

11. It is for that reason necessary to address only the second of the questions originally 2. If Question 1 is answered in the affir­ submitted. That question has been posed on mative: the assumption that the first question would be answered in the affirmative. For the pur­ pose of giving a reply, it must therefore be assumed that, over the period from 1980 to 1988, Mr Tetik was duly registered as belonging to the labour force in Germany Does a Turkish seaman lose his right to and that he consequently enjoyed free access be granted a residence permit if he ter­ to any paid employment of his choice under minates his employment relationship the third indent of Article 6(1) of Decision voluntarily, and not, for example, on N o 1/80. It also follows from the order for health grounds, and 11 days later, after reference that the national court is proceed­ the expiry of his residence permit, ing on the basis that Mr Tetik's termination applies for a residence permit for work of his employment as a seaman was volun­ on shore and after the refusal to grant tary and was not attributable to health or the permit is unemployed?' any other grounds.

12. The national court is thus in effect seek­ ing the Court's views on whether a Turkish 10. The first question concerns the interpre­ worker entitled to free access to employment tation of the term 'duly registered as belong­ under the third indent of Article 6(1) of ing to the labour force of a Member State' in Article 6(1) of Decision N o 1/80 of the Council of Association. In its judgment of 6 June 1995 in Case C-434/93 Bozkurt ν 4 — [1995] ECR1-1475.

16. I wish to state at the outset that it fol- lows from Article 13 of Decision N o 1/80 14. The Commission takes the view that it that after the entry into force of Decision must follow from the third indent of Article N o 1/80 no new restrictions may be intro- 6(1) of Decision N o 1/80 that Turkish work- duced on the conditions of access to employ- ers coming within the scope of that provi- ment applicable to workers who are legally sion can voluntarily terminate an employ- resident and employed. The German Gov- ment relationship in order to start new ernment points out in this regard that the employment. In order for that provision to practice of the aliens authority in not grant- be effective, it must also be possible for a ing foreign seamen residence and work per- Turkish worker to terminate voluntarily an mits for the purpose of employment on land employment relationship in order to seek after they cease working in German shipping new employment. This must particularly dates back to the implementation of the Aus- apply where, as here, the case involves a sea- ländergesetz (Law on aliens) of 28 April man, who might well be regarded as having 1965. It cannot therefore, in its view, be particular practical difficulties in finding argued that, after Decision N o 1/80 entered employment on land. The Turkish worker into force on 1 July 1980, new restrictions must therefore be entitled to a residence per- were introduced on the conditions of access mit for an appropriate period for the pur- to employment applicable to workers pose of seeking work. already resident and employed.

It follows that Mr Tetik, who was entitled in July 1988 to seek any form of paid employ- ment in Germany, whether in shipping or on land, could, after accepting an offer of employment other than his work at that time as a seaman, have terminated his existing The Court accordingly ruled in its judgment contract of employment and begun his new in Sevince6 that the provisions of Article work and, consequently, requested a resi- 6(1) of Decision N o 1/80: dence permit for the purpose of engaging in the work in question. The matter at issue, however, is whether Mr Tetik could termi- nate his existing employment relationship, 5 — See the judgment in Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR 1-3461. thereby becoming voluntarily unemployed, 6 — Cited in footnote 5. See also Case C-237/91 Kus v and subsequently request a residence permit Landeshauptstadt Wiesbaden [1992] ECR I-6781 and Case C-434/93 Bozkurt, cited above. without having found new employment.

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19. The Court has already in several cases 20. As mentioned above, the Court also held had an opportunity to rule on the interpreta- in Sevince that the right of residence is a tion of Decision N o 1/80 and has in general right derived from the right to work. To held, for instance in Bozkurt, cited above, understand an implied right of residence, in concerning the rules in that Decision on the the absence of employment, for the purpose free movement of workers, that: of seeking work therefore appears to be directly at variance with the Court's previ- ous case-law on the right of residence in connection with access to employment under Article 6 of Decision N o 1/80, inasmuch as the derived right of residence would become an autonomous right of residence, something which would run counter to the intentions of Decision N o 1/80 in that it would not have to be linked to actual employment.

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provides that periods of involuntary unem- that part of the provision likewise adds noth- ployment and long absences on account of ing to the description in Article 6(1) as to the sickness shall not be treated as periods of substance of the right. The right which the legal employment. Thus in reckoning the Turkish worker thus does not lose by a long period laid down in Article 6(1), periods absence on account of sickness after having of involuntary unemployment and long legal employment for four years in a Mem- absences on account of sickness are excluded. ber State thus remains only "free access ... to That part of the second sentence of Article any paid employment of his choice" and — 6(2) is, like the first sentence, intended to derived from that — a right of residence clarify the substance of the conditions of whilst that employment is being pursued.' 7 time on which the rights established by Article 6(1) may take effect, but it adds nothing to the description therein of the substance of those rights.

22. In line with this, the Court held in Boz- kurt that:

State after working there, a Turkish nation- residence after termination of previous al's right of residence, as implicitly but nec- employment with a view to seeking new essarily guaranteed by Article 6 of Decision work, particularly in the case of a seaman, N o 1/80 as a corollary of legal employment, who might well be regarded as having par- ceases to exist if the person concerned ticular practical difficulties in finding becomes totally and permanently incapaci- employment on land. I would point out in tated for work'. this connection that — irrespective of whether such a rule may be considered to be reasonable — there is nothing in the Decision of the Council of Association to support the existence of such a right. More- over, any employee must seek new employ- ment in his spare time, and if it is necessary to attend an interview in that connection during working time, he must use up leave 23. The Court also stated expressly in para- from his present employment. Thus, it was graph 40 of Bozkurt, regarding the situation not necessary for Mr Tetik to sign off in in which a Turkish worker has involuntarily order to seek new work. He could have been forced to leave the labour market of a sought new work during his holiday periods Member State, that Article 6 does not con- and attended personal interviews for that tain any provision conferring on Turkish purpose, even though — in contrast to his workers a right to remain in a Member State employment hitherto — he now wished to 'after working there'. That must a fortiori seek employment on land. apply in a case such as the present, in which the Turkish worker left the labour market of the Member State in question on an entirely voluntary basis. The derived right of resi- dence in a Member State under the third indent of Article 6(1) of Decision N o 1/80 can be deemed to exist only so long as the Turkish worker is in fact duly registered as belonging to the labour force of the Member State in question. When Mr Tetik voluntarily signed off on 20 July 1988 and thereupon became voluntarily unemployed, he there- fore ceased to be duly registered as belong- ing to the German labour force and his right 25. In the light of this, the answer to the to remain in Germany also ceased. question submitted must in my view be that the third indent of Article 6(1) of Decision N o 1/80 must be understood as meaning that a Turkish worker, irrespective of the fact that he has acquired free access to employment in a Member State, is not entitled to a residence permit in the Member State in question for the purpose of seeking new employment in the case where he has voluntarily terminated 24. As already mentioned, the Commission his employment and is consequently unem- has argued that there must be a right of ployed.