C-285/95

KOL v LAND BERLIN

J U D G M E N T O F T H E C O U R T (Sixth Chamber) 5 June 1997 *

In Case C-285/95,

REFERENCE to the Court under Article 177 of the E C Treaty by the Oberver- waltungsgericht Berlin for a preliminary ruling in the proceedings pending before that court between

Suat Kol

and

JUDGMENT OF 5. 6. 1997 — CASE C-285/95

Advocate General: M. B. Elmer, Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

— M r Kol, by C. Rosenkranz, of the Berlin Bar,

— the German Government, by E. Röder, Ministerialrat at the Federal Ministry of Economic Affairs, acting as Agent, assisted by K. Hailbronner, Professor at the University of Konstanz,

— the Spanish Government, by A. J. Navarro Gonzalez, Director General of Community Legal and Institutional Coordination, and R. Silva de Lapuerta, Abogado del Estado, of the State Legal Service, acting as Agents,

after hearing the oral observations of the German Government, the Spanish Gov- ernment, the French Government, the United Kingdom Government and the Commission, at the hearing on 23 January 1997,

after hearing the Opinion of the Advocate General at the sitting on 6 March 1997,

gives the following

Judgment

1 By order of 11 August 1995, which was received at the Court on 28 August 1995, the Oberverwaltungsgericht (Higher Administrative Court) Berlin referred to the Court for a preliminary ruling under Article 177 of the E C Treaty two questions concerning the interpretation of Articles 6(1) and 14(1) of Decision N o 1/80 of the Council of Association of 19 September 1980 on the development of the Associa- tion (hereinafter 'Decision N o 1/80'). The Council of Association was established by the Association Agreement between the European Economic Community and Turkey signed on 12 September 1963 in Ankara by the Turkish Republic, on the one hand, and by the Member States of the EEC and the Community, on the other hand; it was 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 The questions were raised in proceedings between Mr Kol, a Turkish national, and the Land Berlin concerning a decision expelling him from German territory.

7 By judgment of 29 November 1993, the Amtsgericht Berlin Tiergarten fined Mr Kol for having made a false declaration in order to procure a residence permit. His wife was convicted of aiding and abetting him.

8 Mr Kol has shown that he was employed in Germany from 3 April 1989 to 31 December 1989 and on 7 February 1990 with his first employer, and from 15 June 1990 to 6 July 1993, from 6 September 1993 to 8 February 1994 and from 24 March 1994 onwards with a second employer.

9 O n 7 July 1994 the Landeseinwohneramt Berlin (Residents' Registration Office for the Land Berlin) ordered Mr Kol's immediate expulsion. That measure, based on general grounds of a preventative nature, was aimed at deterring other aliens from making false statements in order to obtain a residence permit.

I - 3082

KOL v LAND BERLIN

io Mr Kol's application for interim relief was rejected by an order of 12 May 1995 of the Verwaltungsgericht (Administrative Court) Berlin, against which he appealed to the Oberverwaltungsgericht Berlin.

JUDGMENT O F 5. 6. 1997 — CASE C-285/95

— 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 Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment services of that State, for the same occupation;

— shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment.'

H Article 14(1), which forms part of the same section of Chapter II of Decision N o 1/80, provides as follows:

'The provisions of this section shall be applied subject to limitations justified on grounds of public policy, public security or public health.'

is The Oberverwaltungsgericht Berlin had doubts, however, as to the interpretation to be given to the terms 'legal employment' and 'limitations justified on grounds of public policy, public security or public health' used in those two provisions. It raised the question whether Mr Kol's periods of employment subsequent to the false declaration of 2 May 1991 could be recognized as legal employment within the meaning of the'first indent of Article 6(1) of Decision N o 1/80. It further sought to ascertain whether the principles governing the free movement of work- ers who are nationals of a Member State, according to which a deportation order must be based exclusively on the personal conduct of the individual concerned and previous convictions cannot in themselves constitute grounds for making such an order, also apply to Turkish migrant workers.

First question

17 It should be noted at the outset that, according to the file on the case in the main proceedings, Mr Kol has been convicted of having made a false declaration in order to obtain a German residence permit.

is In those circumstances, the first question must be understood as seeking to ascer- tain essentially whether Article 6(1) of Decision N o 1/80 must be interpreted as meaning that a Turkish worker satisfies the condition of having been in legal employment, within the meaning of that provision, in the host Member State,

I-3085

JUDGMENT O F 5. 6. 1997 — CASE C-285/95

where he has been employed there under a residence permit which was issued to him only as a result of fraudulent conduct in respect of which he has been con- victed.

I - 3086

KOL v LAND BERLIN

had lodged against a decision refusing him a residence permit and had obtained authorization, on a provisional basis, pending the outcome of the dispute, to reside and be employed in the Member State in question (paragraph 31).

23 Similarly, in Kus, cited above, the Court held that a Turkish worker did not fulfil that requirement where a right of residence was conferred on him only by the operation of national legislation permitting residence in the host country pending completion of the procedure for the grant of a residence permit (paragraph 18), on the ground that the person concerned had been given the right to remain and work in that country only on a provisional basis pending a final decision on his right of residence (paragraph 13).

24 The Court considered that it was not possible to regard as legal, within the mean- ing of Article 6(1) of Decision N o 1/80, periods in which the worker was employed so long as it was not definitively established that during that period the worker had a legal right of residence. Otherwise, a judicial decision finally refusing him that right would be rendered nugatory, and he would thus have been enabled to acquire the rights provided for in Article 6(1) during a period when he did not fulfil the conditions laid down in that provision (Kus, cited above, paragraph 16).

25 A fortiori that interpretation must apply in a situation such as that in the main proceedings where the Turkish migrant worker obtained a residence permit of unlimited duration in the host Member State only by means of inaccurate declara- tions in respect of which he was convicted of fraud.

29 In the light of the foregoing considerations, the answer to the first question must be that Article 6(1) of Decision N o 1/80 is to be interpreted as meaning that a Turkish worker does not satisfy the condition of having been in legal employment, within the meaning of that provision, in the host Member State, where he has been employed there under a residence permit which was issued to him only as a result of fraudulent conduct in respect of which he has been convicted.

Second question

30 The national court submitted the second question only in the event of an affirma- tive answer to the first question.

3i In view of the negative answer to the first question referred to the Court, there- fore, there is no need to rule on the second question.

I - 3088

KOL v LAND BERLIN

Mancini Kakouris Hirsch

Ragnemalm Schintgen

I-3089

JUDGMENT OF 5. 6. 1997 — CASE C-285/95

Delivered in open court in Luxembourg on 5 June 1997.

R. Grass G. E Mancini