C-386/95
ECLI:EU:C:1997:109
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EKER v LAND BADEN-WÜRTTEMBERG
OPINION OF ADVOCATE GENERAL ELMER delivered on 6 March 1997 *
Introduction relations between the Parties, while taking full account of the need to ensure an acceler ated development of the Turkish economy and to improve the level of employment and the living conditions of the Turkish people'.
1. In the present case the Bundesverwal tungsgericht (Federal Administrative Court) has requested the Court to give a prelimi nary ruling on whether, pursuant to the first indent of Article 6(1) of Decision No 1/80 of Under Article 12 of the Agreement, the the EEC-Turkey Association Council (here Contracting Parties agree 'to be guided by inafter 'Decision No 1/80'), a Turkish Articles 48, 49 and 50 of the Treaty establish worker is entitled to have his residence per ing the Community for the purpose of pro mit in a Member State renewed where he has gressively securing freedom of movement for been employed, admittedly without inter workers between them'. ruption, but with different employers during the first year of employment and now wishes to continue working for his last employer.
3. Under Article 36 of an Additional Proto col to the Association Agreement, dated 23 Applicable rules of Community law 2 November 1970, the Association Council was to determine the detailed rules necessary for the progressive implementation of free dom of movement for workers between Member States of the Community and Tur key, in accordance with the principles set out 2. The Association Agreement between the in Article 12 of the Association Agreement. European Economic Community and Tur 1 key is intended, in the words of Article 2(1), 'to promote the continuous and bal anced strengthening of trade and economic
4. Pursuant to those provisions, the Associa * Original language: Danish. tion Council adopted Decision No 1/80 of 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, p. 1.
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19 September 1980, which entered into force Facts of the main proceedings on 1 July 1980. Article 6(1) of the Decision is worded as follows:
'1 . ... a Turkish worker duly registered as 5. Mr Süleyman Eker, a Turkish national belonging to the labour force of a Member born in 1966, first entered Germany illegally on 1 December 1988 and was for that reason State: permanently expelled on 13 February 1989.
— 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. Mr Eker married a German national in Turkey on 17 January 1991 and entered Ger many again on 6 April 1991 with an entry permit.
— shall be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of Member States of the Com munity, to respond to another offer of employment, 4with an employer of his Following application on 8 April 1991 he choice, made under normal conditions obtained, on 24 July 1991, a residence permit and registered with the employment ser valid until 24 July 1992. Mr Eker had already vices of that State, for the same occupa obtained, on 17 April 1991, a work permit tion; for all types of employment, of indefinite duration and with no geographical restric tions.
— shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employ ment.' 7. On 15 June 1991 Mr Eker commenced work at the Hotel Flora at Schluchsee, where 3 — The Decision has not been published. he was employed until 30 September 1991. 4 — It does not follow from the Danish version that the employ- On 1 October 1991 he began working at a ment in question must be for the same occupation. That point is apparent, however, from the other language versions, health and rehabilitation centre, the St. for example the German version: 'den gleichen Beruf', the Georg Kur-und Rehabilitationskliniken at English version: 'for the same occupation' and the French version: 'dans la même profession'. Höchenschwand.
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8. On 24 July 1991, after being married for presupposed employment for one year with some six months and approximately three the same employer. months after entering Germany, Mr Eker separated from his German wife. On 10 April 1992 he confirmed to the German authorities responsible for aliens that he was separated and stated that divorce proceedings had started. On 22 July 1992 Mr Eker applied for an extension of his residence per 10. By leave of the Verwaltungsgerichtshof mit. Pursuant to that application, the B aden-Württemberg, Mr Eker appealed on a authorities responsible for aliens issued a cer point of law to the Bundesverwaltungsger tificate entitling Mr Eker to remain in Ger icht and sought to have the judgment at first many until 11 August 1992, but at the same instance restored. He claimed in this regard time they informed him that they proposed that he was entitled to a work permit, and to reject his application for a residence per consequently to a residence permit, pursuant mit. By decision of 12 August 1992 the to Article 6(1) of Decision No 1/80, since authorities responsible for aliens refused to that provision simply provided that the extend Mr Eker's residence permit and renewal of the work permit be sought with a ordered him to leave German territory view to working for the last employer. within a specified period, failing which he would be expelled. Mr Eker lodged an unsuccessful administrative appeal against that decision.
The question referred to the Court
9. Mr Eker then appealed to the Verwal tungsgericht (Administrative Court), which, 11. By order of 29 September 1995 the by judgment of 14 July 1994, upheld his Bundesverwaltungsgericht stayed the pro appeal and ordered the Baden-Württemberg ceedings and referred the following question aliens authorities to extend his residence per to the Court for a preliminary ruling: mit. Upon appeal by the Land Baden- Württemberg, the Verwaltungsgerichtshof (Higher Administrative Court) Baden- Württemberg, by judgment of 30 November 1994, set aside the judgment at first instance and ruled in favour of the Land Baden- Württemberg on the ground that the national 'Does a Turkish worker fulfil the require legislation on the right of residence did not ments of the first indent of Article 6(1) of entitle Mr Eker to have his residence permit Decision No 1/80 of the EEC/Turkey Asso extended and that he was also unable to rely ciation Council even if during the first year on Article 6(1) of Decision No 1/80 for the of employment he has, with the permission purpose of being granted a work permit and of the national authorities, worked without a residence permit, since that provision interruption but for different employers and
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wishes to continue employment with his last and the Landratsamt (District Authority) employer?' Waldshut, however, take the view that the first indent of Article 6(1) of Decision No 1/80, regard being had to the case-law of the Court and the construction of Article 6, must be interpreted as meaning that a Turk ish worker who changes employer during Analysis the first year's legal employment in a Mem ber State cannot be regarded at the end of that year as fulfilling the conditions govern ing extension of his work permit.
12. In submitting that question, the national court is in substance seeking to ascertain whether the first indent of Article 6(1) of Decision No 1/80 authorizes a Turkish worker to change employer during the first 15. The first indent of Article 6(1) has direct 5 year of employment. effect. Having regard to its wording, that provision is concerned only with the right of employment, but the Court has consistently held that this right of employment also nec 6 essarily entails a right of residence.
13. Mr Süleyman Eker claims that the first indent of Article 6(1) of Decision No 1/80 does not require the Turkish worker to have been employed by the same employer throughout the first year of legal employ 16. The Court has held, most recently in its ment in a Member State, since that provision judgment of 5 October 1994 in Eroglu (here must be interpreted as meaning that the only 7 inafter 'the Eroglu judgment'), that: condition required for the purpose of renew ing a work permit granted to a Turkish worker is that the person concerned must wish to continue working for his last employer.
'Decision No 1/80 does not encroach upon the power of the Member States to regulate both the entry into their territory of Turkish nationals and the conditions of their first 14. The Vertreter des öffentlichen Interesses employment ...'. bei den Gerichten der allgemeinen Verwal tungsgerichtsbarkeit in B aden-Württemberg (Representative of the Public Interest before 5 — See Case C-192/89 Sevince v Staatssecretaris van Justitie the general administrative courts of Baden- [1990] ECR I-3461. Württemberg), the German, Greek, French 6 — See footnote 5. 7 — Case C-355/93 Eroglu v Land Baden-Württemberg [1994] and Austrian Governments, the Commission ECR I-5113.
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Accordingly, the first indent of Article 6(1) employer ...' to show that the provision was does not provide any right of entry into the intended solely to contain an obligation in territory of or residence in a Member State that sense, rather than requiring employment for Turkish workers; such a right is subordi with a single employer during the first year nated to the national law of the Member of employment. States.
17. None the less, under the first indent of Article 6(1) of Decision No 1/80 a Turkish worker 'shall be entitled in that Member 18. It seems more logical, therefore, to read State, after one year's legal employment, to that provision as including a requirement the renewal of his permit to work for the that the Turkish worker has, throughout the same employer ...'. The wording of that pro first year of legal employment, been 8 vision is not entirely clear. employed by one and the same employer and that he must be in a position to continue to be employed by that employer.
On the one hand, it is possible — as Mr Süleyman Eker contends — to see in that provision simply a requirement that the work permit is to be renewed for the pur pose of continued employment with the employer by whom the person concerned is 19. In support of this interpretation, it may employed when he applies for renewal of his also be pointed out that Article 6(1) of permit. However, the use of the expression Decision No 1/80 is set out as a series of 'same employer', with no indication as to progressive stages: after one year's employ whether this refers, where appropriate, to the ment a Turkish worker acquires the right to original employer or the last employer or, continue working for the same employer; where appropriate, to any other employer by after three years' employment he acquires whom the worker has been engaged for a the right to pursue the same occupation, but shorter or longer term, argues against such a with an employer of his choice; and after a reading. If that had been the Association further year's employment he acquires the Council's intention it could, for instance, right of free access to any paid employment have used the words '... entitled ... to the of his choice in the Member State of employ renewal of his permit to work for the last ment. The purpose of that progressive arrangement is to allow a Turkish worker to acquire more rights the longer he is employed in a Member State and, accord 8 — The wording of this provision in, for example, the English, ingly, the greater his degree of integration in French and German versions corresponds to that of the Danish version. that Member State.
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20. In the first stage, the Turkish worker has Article 6(1), of a requirement that the Turk no right to seek employment in the Member ish worker continue to follow the same State concerned. However, he is entitled to occupation must therefore be that that provi continue his current employment if his sion imposes an obligation of one year's employer offers to continue the employment employment with the same employer, which relationship. In the second stage, he acquires renders superfluous any separate require the right to seek employment, but only for ment of employment in the same occupation. the same occupation. Finally, in the third stage, the Turkish worker acquires the right freely to seek any paid employment in the Member State. Therefore, if the Turkish worker were allowed to change employer during the first year of legal employment in 22. It therefore follows from the construc a Member State this progression in Article tion of Article 6(1) of Decision No 1/80 that 6(1) of Decision No 1/80 would be rendered it is necessary, according to the first indent meaningless, since the Turkish worker would of Article 6(1), to consider it as a require effectively be entitled, during the first year of ment that the Turkish worker be employed employment, to seek work and change by one and the same employer throughout employer, a right which, pursuant to the sec the first year of legal employment. ond indent of Article 6(1), he was intended to acquire only after three years of employ ment.
23. That result appears to be consistent with the Court's case-law on Article 6 of Decision No 1/80. Admittedly, the Court has not thus far had the opportunity to rule directly on the question whether it is necessary, under the first indent of Article 6(1), for the Turk 21. Moreover, the first indent of Article 6(1) ish worker to have been employed by the does not require that renewal of the Turkish same employer throughout the first year of worker's work permit be for the purpose of legal employment. It has ruled, however, in employment in the same occupation. That connection with other questions raised in requirement follows, however, from the sec 9 respect of Article 6 of Decision No 1/80, ond indent of Article 6(1). If a Turkish that: worker were permitted, under the first indent of Article 6(1), to change employer during the first year's legal employment, he would also be able to change occupation and therefore, even before the expiry of the first year of employment, be able to enjoy a right which, under the third indent of Article 6(1), 'The first indent of Article 6(1) of Decision he was intended to acquire only after four No 1/80 must be interpreted as meaning that years of employment, namely the right to engage in any paid employment, irrespective of the occupation. The only logical explana 9 — Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] tion for the absence, in the first indent of ECR I-6781.
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a Turkish national who obtained a permit to seeking an extension of his work permit in reside on the territory of a Member State ... order to work for the first employer again and has worked there for more than one year would allow that worker to change employ with the same employer under a valid work ers under that provision before the expiry of permit is entitled under that provision to the three years prescribed in the second renewal of his work permit ...'. indent and would also deprive workers of the Member States of the priority conferred on them pursuant to that indent when a Turkish worker changes employers.'
24. Moreover, the Court stated in the Eroglu judgment, in regard to Article 6(1), that:
25. In those judgments, therefore, the Court, for the purpose of determining whether in those specific cases the conditions set out in the first indent of Article 6(1) of Decision '... After one year of legal employment, a No 1/80 had been met, used a form of words Turkish worker is entitled to the renewal of indicating its view that that provision his permit to work for the same employer includes a requirement that the Turkish (first indent) ... worker be employed by the same employer throughout the first year of legal employ ment. Similarly, it is clear from the Eroglu judgment that the Court is of the opinion that the right to change employers is acquired only once the conditions referred to in the second indent of Article 6(1) have The aim of the first indent of Article 6(1) of been met. Decision No 1/80 is to ensure solely conti nuity of employment with the same employer and is, accordingly, applicable only where a Turkish worker requests an exten sion of his work permit in order to continue working for the same employer after the ini tial period of one year's legal employment.
26. I accordingly take the view that the answer to the question referred to the Court must be that the first indent of Article 6(1) of Decision No 1/80 is to be interpreted as meaning that a Turkish worker acquires the Extending the application of that provision right to continue in employment with an to a Turkish worker who, after one year's employer only after one year's uninterrupted legal employment, changed employers and is legal employment with the same employer.
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Conclusion
27. For the foregoing reasons, I propose that the Court should answer the question raised as follows:
The first indent of Article 6(1) of Decision No 1/80 of the Association Council of 19 September 1980, established pursuant to the Agreement establishing an Associa tion between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 and concluded on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, must be interpreted as meaning that a Turkish worker acquires a right to continue in employment with an employer only after one year's uninterrupted legal employment with the same employer.
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