C-36/96

G Ū N A Y D I N v FREISTAAT BAYERN

OPINION OF ADVOCATE GENERAL ELMER delivered on 29 April 1997 *

Introduction 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 t o improve the level of employment and the liv­ ing conditions of the Turkish people'.

1. In the present reference for a preliminary ruling the German Bundesverwaltungsge­ richt (Federal Administrative Court) seeks to ascertain whether, under Decision N o 1/80 of the EEC-Turkey Association Council, a Turkish worker may be considered to be in legal employment and duly registered as belonging to the labour force of a Member State where his work permit was issued with Under Article 12 of the Agreement, the temporal restrictions and for the purpose of Contracting Parties agree 'to be guided by preparing for work with a subsidiary com­ Articles 48, 49 and 50 of the Treaty establish­ pany of his employer in Turkey. ing the Community for the purpose of pro­ gressively securing freedom of movement for workers between them'.

Relevant Community legislation

— 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. In November 1986 Mr Günaydin was employed by Gerätewerk Amberg, which belongs to Siemens AG (hereinafter — shall be entitled in that Member State, 'Siemens'). By letter of 16 October 1986 after three years of legal employment and Siemens informed the authorities in Amberg subject to the priority to be given to responsible for foreigners that Gerätewerk workers of Member States of the Com- Amberg operated closely with local subsid- munity, to respond to another offer of iaries of Siemens in, among other countries, employment, with an employer of his Turkey, and that it 'was therefore envisaged choice, made under normal conditions that after a period of some five years and registered with the employment ser- Mr Günaydin would be given a supervisory vices of that State, for the same occupa- or managerial post in one of those subsidiar- tion; ies. He was not therefore intended to work on a long-term basis with Gerätewerk Amberg, but was to be posted to his country of origin. By letter of 20 January 1987, Siemens' head office asked the Ministry of the Interior for the State of Bavaria to issue a — shall enjoy free access in that Member residence permit for at least three years to State to any paid employment of his Mr Günaydin, on the understanding that he choice, after four years of legal employ- would be posted to Turkey on completion of ment.' a work-related information and familiariza- tion programme. That information was con- firmed in a further letter from Siemens' head 3 — The Decision has not been published. office dated 21 January 1987.

10. By decision of 11 September 1990, the town of Amberg rejected Mr Giinaydin's application for a residence permit. Similarly, the Landratsamt (Regional Authority) 8. The residence permit was extended on Amberg-Sulzbach, by decision of 17 April three occasions, with endorsements couched 1991, rejected his application for a residence in similar terms, being limited on the last permit. Mr Giinaydin lodged an unsuccessful occasion to 5 July 1990. At the same time administrative appeal against that decision temporary work permits, also limited to with the regional administration of Ober- employment with Siemens at the Gerätewerk pfalz. Amberg, were issued to Mr Giinaydin. Before the last extension Mr Giinaydin pro­ vided Siemens with a statement, on 9 August 1989, in which he declared that he wished to continue working at the Gerätewerk Amberg until 30 June 1990 or 30 September 1990, should his residence permit be extended. H e proposed thereafter to return to Turkey with his family in order to take up a post with Siemens' subsidiary in that country. That O n 3 December 1991 Mr Giinaydin and his declaration was forwarded to the authorities family appealed to the Verwaltungsgericht responsible for foreigners. (Administrative Court), which upheld the administrative decisions on, inter alia, the ground that Mr Giinaydin could not rely on Article 6(1) of Decision N o 1/80 because he was not duly registered as belonging to the labour force in Germany. Mr Giinaydin and his family appealed to the Bayerischer Ver­ waltungsgerichtshof (Higher Administrative 9. By letters of 15 February 1990 and 5 July Court of Bavaria), which upheld the lower 1990 Mr Giinaydin applied to the authorities decision. They then appealed on a point of responsible for foreigners for a permanent law to the Bundesverwaltungsgericht.

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G Ű N A Y D I N v FREISTAAT BAYERN

14. Freistaat Bayern, supported by the Ger­ 16. Moreover, the Court held in Kus in man, French and Greek Governments and relation to Decision N o 1/80 that: by the Commission, maintains that Article 6(1) of Decision N o 1/80 must be interpreted as meaning that a Turkish -worker who has obtained only temporary authorization to work for an employer in a Member State for the purpose of training for a post in a sub­ sidiary of that employer in Turkey cannot be "... according to its wording, Article 6(1) [of considered to be duly registered as belonging Decision N o 1/80] applies to Turkish work­ to the labour force of that Member State. ers duly registered as belonging to the labour force of a Member State and ... under the first indent a Turkish worker needs only to have been in legal employment for more than one year in order to be entitled to the renewal of his permit to work for the same employer ...'. 15. It should be pointed out that the Court has consistendy held that Article 6(1) of Decision N o 1/80 has direct effect. 4 Admit­ tedly, that provision, on its wording, refers only to the right to take up employment, but it follows from the Court's consistent case- law that in connection with that right to take In order to be able to rely on Article 6(1) of up employment there is a derived right of Decision N o 1/80, therefore, it is essential residence. 5 that the Turkish worker in question be duly registered as belonging to the labour force of a Member State and has been legally employed for the periods set out therein.

labour force in Germany, or, on the other 20. Between those two extremes it is pos- hand, is undergoing some form of training. sible to envisage a whole series of intermedi- ate groups, where it may be difficult to deter- mine whether the activity in question constitutes training or employment linked to the labour force. Such forms of employment may be regarded as being principally in the nature of training. For example, it is possible to imagine that the training for nurses pro- vided by a particular training institution will include periods of practical training in hospi- tals, irrespective of whether a trainee receives 18. In doing so, it is possible to identify cer- remuneration for the work performed for tain extreme features characteristic of such the hospital. activities. First, there is the group of simple training activities, which have no connection with employment or the labour force, for example university studies, studies in a com- mercial college or technical studies, where students exclusively pursue an activity of a purely theoretical and educational nature. Turkish nationals who have been issued •with residence permits in order to study at univer- 21. Numerous forms of paid employment sity do not therefore form part of the labour linked to the labour force may include an force and cannot rely, on the basis of the element of training, particularly in the case right of residence which they are granted in of employment requiring the development of a Member State, on Article 6 of Decision intellectual qualities. For example, posts as N o 1/80. deputy judges will be administered in such a way as to allow deputy judges — or the most gifted among them — to train and qualify for posts as established judges. In the course of a career, it is by completing a form of work or activity over a certain period that the person concerned qualifies for a certain different post. In that sense, many forms of work involve education or training even though there can be no doubt that the per- son concerned is in employment linked to the labour force. 19. O n the other hand, there are Turkish nationals who have ordinary paid employ- ment in a Member State under the general conditions of employment law and who receive normal wages. Such persons clearly belong to the labour force of the Member State concerned and a Turkish national 'who has been so employed for the requisite peri- ods will thus be able to rely on the rights 22. The concept of being duly registered as referred to in Article 6 of Decision No 1/80. belonging to the labour force of a Member

23. I consider that the present case does not lend itself to a more thorough examination by the Court of the treatment which should 'Article 6(1) of Decision N o 1/80 lays down be reserved for certain other intermediate no independent conditions for the employ­ forms which might be imagined, for example ment to be "legal". apprentice training, which is presumably organized along very different lines in the various Member States. According to the information in the present case, it is apparent that Mr Giinaydin had been recruited under the general conditions of the labour market and not under a particular apprenticeship scheme, that he was not paid a low 'training salary' for his work with Siemens, but received a normal salary, that is to say, the same salary as other civil engineers working for Siemens, that he was not in receipt of any training allowance from the German State By the expression "legal" employment, and that it was intended that he should work Article 6(1) of Decision N o 1/80 of the for the undertaking for a certain number of Association Council must therefore be years — although he was already a fully- assumed to refer to the rules of the Member trained civil engineer — before taking up a new post in a subsidiary. There is every indi­ cation, therefore, that the post in question 7 — Sec Case C-434/93 Bozkurt v Staatssecretaris van Justitie involved perfectly ordinary work, and that in [1995] ECR 1-1475.

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8 — See footnote 4. 9 — Parigraph 30. 10 — Paragraph 32.

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GŪNAYDIN v FREISTAAT BAYERN

28. Just as it is irrelevant whether the right which forms an integral part of Community of residence derives from a formal work and law. residence permit, I consider it equally irrel­ evant that the validity of a residence or work permit issued was restricted in time. If the temporal validity of a residence permit were to be considered relevant, Member States would need only to issue residence permits valid for limited periods to be able to avoid completely the application of Article 6(1) of 30. That does not mean that such restric­ Decision N o 1/80, so that Turkish nationals tions, whether temporal or of any other would not in fact benefit from the rights kind, are irrelevant, since they produce the which that provision confers on them. In effects attributed to them by the national that regard, it should not be forgotten that it legal order in question in so far as nationals is apparendy a widespread practice, in Mem­ of non-member countries have not acquired ber States for nationals of non-member rights under Community law. Thus, if a countries to receive only a limited residence Turkish national's work permit is limited to permit during the first years in which they work with a specific employer, and that post are entitled to work and reside in a Member is terminated before the end of the first year, State. The German Government stated at the it follows from an a contrario reading of the hearing that there are no examples in Ger­ first indent of Article 6(1) of Decision N o many of an initial residence permit being 1/80 that the Turkish national has not issued to nationals of non-member countries, acquired the right under Community law to including Turkish nationals, which did not continue in employment and that the ques­ include a temporal restriction. tion whether he may remain and work in the territory of the Member State concerned is a matter for the domestic legislation of that Member State alone.

32. In my view, the answer to the first ques- employed following the period of training tion must therefore be that Article 6(1) of with Siemens in Germany had told him in Decision N o 1/80 is to be interpreted as January 1991 that owing to the situation meaning that a Turkish national who is in then prevailing in Turkey it was unable to paid employment under normal conditions employ him for the time being. Mr Giinay- and in receipt of normal pay with an din had therefore originally intended to employer in a Member State and who is not return to Turkey, but circumstances had subject to any special rule of employment as changed. an apprentice or under a similar scheme must be regarded as being employed as a duly reg- istered member of the labour force of the Member State concerned, even though the initial reason for engaging him was to train him so that after working for the employer for a number of years he would be able to take up a post with a subsidiary of the 35. Freistaat Bayern, supported by the Ger- employer in Turkey, and that Member States man and Greek Governments, takes the view cannot, by imposing temporal or other that the present case involves an abuse of restrictions on a Turkish national's residence such a kind as to prevent Mr Giinaydin from and work permits, prevent the worker con- relying on Article 6(1) of Decision N o 1/80. cerned from acquiring the rights which he derives from Article 6(1).

36. The Commission considers that it cannot be taken as established that Mr Giinaydin The second question initially pretended that he intended to return to Turkey on completion of his period of employment with Siemens in order to induce the German authorities responsible for aliens to issue a residence and work permit to him.

'16. The right to work during the period 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 In that Opinion I further considered that the determinant in that connection is whether, situation had to be 'assessed in the same way under the Member State's substantive rules, as in the Sevince and Kus cases, so that the the person in question is lawfully in the period between issue of a residence permit country. A formal residence and work per- on the basis of the false declaration of mit are of no consequence. cohabitation on 2 May 1991 and the expul- sion on 7 July 1994 cannot be regarded as being a period in which Suat Kol's situation as a member of the labour force was perma- nent and not solely provisional, since his for- mal right of residence was open to challenge. In the contrary case, a final legal decision refusing him a right of residence under Ger- man law would be rendered nugatory and enable him to acquire the rights provided for in Article 6(1) during a period in which he did not fulfil the conditions laid down 11 — Cisc C-285/95 Suat Kol v Land Berlin [1997] ECR 1-3069. therein. To allow Suat Kol to use fraud o n

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OPINION OF MR ELMER — CASE C-36/96

40. On the other hand, where at a particular For all those reasons, I proposed that the time a Turkish national, acting in good faith, Court's answer to the first question should provides information about his personal situ- be that 'Article 6(1) of Decision N o 1/80 ation and his intentions, but where the pos- must be interpreted to the effect that the ition subsequently changes, without any periods of employment completed by a fault on the part of the person concerned, for Turkish worker in a Member State on the example because of general social develop- basis of a residence permit obtained by fraud ments, that will not constitute deception but cannot be regarded as "legal employment" rather a failure of general conditions, and it y strikes me as unreasonable that in such a case the Turkish national alone should be made to bear the risk of failure of those conditions. It is probable that in such a situation the authorities of the Member States responsible for foreigners will simply withdraw (or 39. As to whether inaccurate or incomplete refuse to extend) the residence and work per- information provided in connection with the mits, with prospective effect.

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GŪNAYDIN v FREISTAAT BAYERN

Conclusion

44. O n t h a t basis, I p r o p o s e t h a t t h e C o u r t s h o u l d a n s w e r t h e q u e s t i o n s referred t o it as follows:

Article 6(1) of D e c i s i o n N o 1/80 of t h e A s s o c i a t i o n C o u n c i l established b y t h e Association Agreement between the E u r o p e a n Economic C o m m u n i t y and Turkey, signed o n 12 S e p t e m b e r 1963 in A n k a r a a n d c o n c l u d e d o n behalf of t h e C o m m u ­ n i t y b y D e c i s i o n 6 4 / 7 3 2 / E E C of t h e C o u n c i l of 23 D e c e m b e r 1963, m u s t b e inter­ p r e t e d as m e a n i n g

that a T u r k i s h n a t i o n a l w h o is in p a i d e m p l o y m e n t u n d e r n o r m a l c o n d i t i o n s and i n receipt of n o r m a l p a y w i t h a n e m p l o y e r in a M e m b e r State a n d w h o is n o t subject

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OPINION OF MR ELMER — CASE C-36/96