C-285/95
ECLI:EU:C:1997:107
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KOL v L A N D BERLIN
O P I N I O N OF ADVOCATE GENERAL ELMER delivered o n 6 M a r c h 1997 *
Introduction Turkish economy and to improve the level of employment and the living conditions of the Turkish people'.
1. In this case the Oberverwaltungsgericht Berlin has asked the Court for an interpreta- Under Article 12 of the Agreement, the par- tion of the term 'legal employment' in ties 'agree to be guided by Articles 48, 49 Decision N o 1/80 of the EEC-Turkey Asso- and 50 of the Treaty establishing the Euro- ciation Council in relation to a residence per- pean Economic Community for the purpose mit fraudulently obtained. of progressively securing freedom of move- ment for workers between them'.
The relevant Community rules
3. Article 36 of the Additional Protocol to the Agreement of 23 November 1970 2 states that the Council of Association is to decide on the rules necessary to secure freedom of movement for workers between Member States of the Community and Turkey in 2. Under Article 2(1) of the Association accordance with the principles set out in Agreement between the European Economic Article 12 of the Association Agreement. Community and Turkey, ' the aim of that Agreement is 'to promote the continuous and balanced strengthening of trade and economic relations between the Parties, while taking full account of the need to ensure an accelerated development of the 4. Pursuant thereto, the Council of Associa- tion adopted Decision N o 1/80 of 19 Sep- * Original language: Danish. tember 1980, which entered into force on 1 — Agreement creating an Association between the European Economic Community and Turkey, signed on 12 September 1963 in Ankara, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113, p. 1). 2 — OJ 1973 C 113, p. 1.
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1 July 1980. 3 The provisions in Chapter II, 5. Article 14(1) of Decision N o 1/80 further Section 1, in Decision N o 1/80, which provides that: includes Articles 6-16, concern employment and the free movement of workers.
Article 6(1) of Decision N o 1/80 is worded 'The provisions of this section shall be as follows: applied subject to limitations justified on grounds of public policy, public security or public health.'
'... a Turkish worker duly registered as belonging to the labour force of a Member State: Facts of the case
— shall be entitled in that Member State, after one year's legal employment, to the renewal of his permit to work for the same employer, if a job is available; 6. Suat Kol, who is a Turkish national born in 1966, entered the Federal Republic of Ger- many on 15 February 1988. In his applica- tion for a residence permit he stated that he had entered the country on a permanent — shall be entitled in that Member State, basis in order to marry a German citizen. after three years of legal employment ..., The marriage took place on 9 May 1988. to respond to another offer of employ- Since it was suspected that it was a marriage ment, with an employer of his choice, of convenience, he was provisionally regis- made under normal conditions and regis- tered by the immigration authorities with a tered with the employment services of view to further investigation. Subsequently that State, for the same occupation; he was issued with a residence permit of lim- ited duration until 20 March 1989. That per- mit was extended several times.
— shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employ- ment.' At a hearing on 2 May 1991 for the purpose of obtaining a permanent residence permit, 3 — The decision has not been published. Suat Kol and his German wife declared that
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KOL v L A N D BERLIN
they lived together as man and wife in the and from 24 March 1994 at Enver Kol's marital home. On that basis Suat Kol was snack-bar. issued with a residence permit of unlimited duration.
9. By decision of the Landeseinwohneramt Berlin of 7 July 1994, Suat Kol was expelled from Germany for having obtained a resi- That declaration was not, however, correct, dence permit of unlimited duration on the since it was subsequently shown that the basis of incorrect information furnished to wife had already commenced divorce pro- the authorities. His unlawful conduct was ceedings in April 1990 and that the couple held to justify expulsion on grounds of pub- had ceased to cohabit long before the decla- lic security and public policy, with the aim of ration made on 2 May 1991. The marriage discouraging other foreigners from similar was dissolved on 14 February 1992. unlawful conduct.
7. By judgment of the Amtsgericht Tiergar- By order of 12 May 1995, the Verwaltungs- ten Berlin of 29 November 1993, Suat Kol gericht Berlin rejected an application from was fined for having made a false declaration Suat Kol seeking suspension of the expulsion in order to obtain a residence permit. His decision on the ground that Article 6(1) of former wife was convicted of aiding and Decision N o 1/80 cannot require a higher abetting him. degree of protection against expulsion than the general rules in the applicable legislation concerning aliens.
8. Suat Kol produced evidence to the Ger- man authorities that he had been employed during his time in Germany over the follow- Suat Kol appealed against that decision to ing periods: (1) 3 April 1989 to 31 December the Oberverwaltungsgericht Berlin. In that 1989 and 7 February 1990 at Bosch-Siemens- connection he claimed that on the basis of Hausgeräte; (2) 15 June 1990 to 6 July 1993, the periods of employment he had com- 6 September 1993" to 8 February 1994 pleted in Germany, pursuant to Article 6(1) of Decision N o 1/80 he was entitled to a residence permit and that expulsion based solely on general grounds of a preventative 4 — The order for reference states 6.9.1990. It appears, however, nature was incompatible with Article 14(1) from the documents in the case that the correct date is 6.9.1993. of Decision N o 1/80.
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Questions referred for a preliminary ruling Analysis
10. By order of 11 August 1995 the national court stayed the proceedings and referred the following questions to the Court for a pre- 11. It appears from the order for reference liminary ruling: that Suat Kol was employed for approxi- mately nine months by Bosch-Siemens Hausgeräte. He cannot, therefore, on the basis of that period of employment, rely on the first indent of Article 6(1) of Decision N o 1/80, since it requires one year's employ- ment for the same employer. Suat Kol was, however, employed for more than one year 'l) Are periods of employment spent in a (from 15 June 1990 to 6 July 1993, from 6 Member State by a Turkish worker on September 1993 to 8 February 1994 and the basis of a residence permit obtained from 24 March 1994 onwards) by Enver Kol. by wilful and criminal deceit to be His residence and working permits were, recognized as legal employment within however, in the period after 2 May 1991, the meaning of Article 6(1) of Decision obtained fraudulently. At that time Suat Kol N o 1/80 of the EEC-Turkey Council of had been employed for approximately 10 Association? and a half months by Enver Kol. In those circumstances, by its first question the national court seeks to ascertain whether Article 6(1) in Decision N o 1/80 should be interpreted as meaning that periods of employment completed by a Turkish worker in a Member State on the basis of a residence 2) If Question 1 is answered in the permit obtained fraudulently can be regarded affirmative: as 'legal employment'.
Is the termination of residence of such a worker by virtue of an expulsion order made solely on general grounds of a 12. Suat Kol claims that the first question preventative nature with a view to must be answered in the affirmative, since deterring other aliens compatible with during his periods of employment in Ger- Article 14(1) of the abovementioned many he was in possession of both a valid decision?' residence permit and a valid work permit.
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KOL v LAJMD BERLIN
13. The United Kingdom, the French, Span- Article 6(1) of Decision No 1/80 does not ish and German Governments and the Com- subject recognition of those rights to the mission all take the view that a Turkish condition that Turkish nationals must estab- worker cannot rely on the provisions of lish the legality of their employment by pos- Article 6(1) of Decision N o 1/80 where the session of any specific administrative docu- formal right to reside in a Member State dur- ment, such as a work permit or residence ing the relevant periods of employment was permit, issued by the authorities of the host obtained fraudulently. country.
14. Article 6(1) of Decision N o 1/80 has direct effect. 5 On its wording the provision concerns solely entitlement to take up employment, but it follows from the Court's consistent case-law that in connection with It follows that the rights conferred under that right to take up employment there is a Article 6(1) on Turkish nationals 'who are derived right of residence. 6 already duly integrated into the labour force of a Member State are accorded to such nationals irrespective of whether or not the competent authorities have issued adminis- trative documents which, in this context, can only be declaratory of the existence of those 15. Thus in Case C-434/95 Bozkurt7 the rights and cannot constitute a condition for Court held that: their existence.'
'The legality of employment engaged in over a certain period must be determined in the light of the legislation of the host State gov- erning the conditions under which the Turk- ish worker entered the national territory and 16. The right to work during the period is employed there. before a Turkish worker can rely on the pro- visions in Decision N o 1/80 is thus condi- tional on a right of residence already acquired under the law of the Member State in question. Whether and on what conditions a Turkish worker has a right of residence must be decided under national law. What is determinant in that connection is whether, under the Member State's substantive rules, 5 — Case C-192/89 Sevince [1990] ECR 1-3461. the person in question is lawfully in the 6 — See footnote 5. country. A formal residence and work per- 7 — Case C-434/93 Bozkurt y Suuussecretaris van Justitie [1995] ECR 1475. mit are of no consequence.
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17. The Court has twice had occasion to 18. The Court has thus held that periods of interpret the expression 'legal employment' employment completed solely on the basis of in Article 6(1) of Decision N o 1/80. a provisional right of residence valid until the outcome of legal proceedings cannot be regarded as periods of legal employment. In the present case the situation is different, since Suat Kol — albeit as a result of fraud — was, during the period at issue, in posses- sion of a permanent residence permit, which only lapsed when there was a subsequent In its judgment in Case C-192/89 Sevince, 8 expulsion decision. Formally, Suat Kol's situ-, •which concerned a Turkish worker who was ation as a member of the German labour able to continue in employment only force was not therefore provisional. Since, because of the suspensive effect of a case however, the residence permit was obtained brought by him, which he lost, the Court fraudulently, under German law it was open found that in such a case there was no 'legal to challenge. employment' within the meaning of Article 6(1) of Decision N o 1/80, since that 'presup- poses a stable and secure situation as a mem- ber of the labour force'. 9
When the German immigration authorities discovered the fraud, the residence permit was withdrawn and Suat Kol expelled. The point in time at which the German authori- ties withdrew Suat Kol's residence permit N o r in its judgment in Case C-237/91 Kus v was purely fortuitous and depended solely Landeshauptstadt Wiesbaden10 did the on when the authorities discovered that the Court find that there was 'legal employ- residence permit was issued as a result of ment', since '... legal employment ... presup- fraud. Suat Kol's residence permit could thus poses a stable and secure situation as a be withdrawn at any time after the fraudu- member of the labour force and, by virtue of lent declaration. this, implies the existence of an undisputed right of residence ...'. That case concerned a Turkish worker who, during a period in which, by the operation of the suspensive effect of an appeal which he had brought against a decision refusing him a right to remain, was provisionally allowed to remain in the Member State in question and engage 19. It can scarcely be in accordance with the in employment until a final decision was purpose of the provision in Article 6(1) of reached in his case. Decision N o 1/80 for such fortuitous cir- cumstances to determine whether the requirement of one year's 'legal employ- ment' is satisfied. The simple fact is that the 8 — Sec footnote 5. 9 — Paragraph 30. German immigrational authorities would not 10 — [1992] ECR 1-6781. have issued a residence permit to Suat Kol
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KOL v LAND BERLIN
on 2 May 1991 if he had been truthful about as a consequence of the proceedings brought his marriage. by him against that decision was to prevent a Turkish worker from being able to contrive to fulfil that condition and, as a result, to obtain the grant of the right of residence inherent in the right, under the third indent In my view, this situation must therefore be of Article 6(1) of Decision N o 1/80, of free assessed in the same way as in the Sevince access to any paid employment, during a and Kus cases, so that the period between period when he enjoyed a right of residence issue of a residence permit on the basis of the only provisionally pending the outcome of false declaration of cohabitation on 2 May the dispute. 1991 and the expulsion on 7 July 1994 can- not be regarded as being a period in which Suat Kol's situation as a member of the labour force was permanent and not solely provisional, since his formal right of resi- dence was open to challenge. In the contrary case, a final legal decision refusing him a right of residence under German law would That reason retains its validity so long as it is be rendered nugatory and enable him to not definitively established that during the acquire the rights provided for in Article 6(1) period in question the person concerned had during a period in which he did not fulfil the a legal right of residence. Otherwise, a judi- conditions laid down therein. To allow Suat cial decision finally refusing him that right Kol to use fraud on the German immigration would be rendered nugatory, and he would authorities to render lawful his employment thus have been enabled to acquire the rights after 2 May 1991 would be to reward cul- provided for in the third indent of Article pable conduct, which would encourage, 6(1) during a period when he did not fulfil rather than discourage, others to give fraudu- the conditions laid down in that provision.' lent declarations to the immigration authori- ties of the Member States.
20. In accordance therewith, the Court has 21. Lastly, the purpose of Article 6(1) of stated: n Decision N o 1/80 must also lead to the above result. The purpose of the advantages in relation to legal employment set out in the provision is to ensure that Turkish workers who are already duly registered as belonging 'The reason for which, in ... its judgment in to the labour force in a Member State are Sevince, the Court declined to regard as peri- further integrated in the Member State in ods of legal employment those completed question. That consideration of integration while the decision refusing the person con- would have a contrary effect if a Turkish cerned the right of residence was suspended worker could, by fraudulent means, procure for himself a legal position which could only be limited under the conditions referred to in 11 — Sec footnote 10. Article 14.
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22. The reply to the first question should courts to assess whether, in the specific case, accordingly, in my view, be that Article 6(1) there has been fraud. of Decision N o 1/80 must be interpreted to the effect that the periods of employment completed by a Turkish worker in a Member State on the basis of a residence permit 23. Since the first question should be obtained by fraud cannot be regarded as answered as set out above, there is no need 'legal employment'. It is for the national to take a position on the second question.
Conclusion
24. I n the light of the foregoing, I w o u l d p r o p o s e that the C o u r t answer the q u e s - t i o n s referred t o it as follows:
A r t i c l e 6(1) of D e c i s i o n N o 1/80 of 19 S e p t e m b e r 1980 a d o p t e d b y the Association C o u n c i l established b y the Association A g r e e m e n t b e t w e e n the E u r o p e a n E c o n - o m i c C o m m u n i t y a n d Turkey, signed i n A n k a r a o n 12 S e p t e m b e r 1963 and c o n - c l u d e d , a p p r o v e d a n d c o n f i r m e d on behalf of the C o m m u n i t y b y C o u n c i l D e c i s i o n 6 4 / 7 3 2 / E E C of 23 D e c e m b e r 1963, s h o u l d b e interpreted t o the effect t h a t t h e p e r i o d s of e m p l o y m e n t completed b y a T u r k i s h w o r k e r in a M e m b e r State o n t h e basis of a residence p e r m i t obtained b y fraud c a n n o t be regarded as 'legal employment'.
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