C-98/96

ERTANIR v L A N D HESSEN

OPINION OF ADVOCATE GENERAL ELMER delivered o n 29 April 1997 *

Introduction employment and the living conditions of the Turkish people'.

1. In the present case the Verwaltungsger- icht (Administrative Court) Darmstadt has Under Article 12 of the Agreement, the referred to the Court a number of questions Contracting Parties agree 'to be guided by on the interpretation of Article 6(1) and (3) Articles 48, 49 and 50 of the Treaty establish- of Decision N o 1/80 of the Association ing the Community for the purpose of pro- Council created by the Association Agree- gressively securing freedom of movement for ment between the European Economic workers between them'. Community and Turkey. '

Applicable Community legislation 3. Pursuant to Article 36 of an additional protocol to the Association Agreement, dated 23 November 1970, 2 the Association Council is to determine the detailed rules necessary for the progressive achievement of freedom of movement for workers between Member States of the Community and Tur- 2. The Association Agreement is intended, key, in accordance with the principles set out in the words of Article 2(1), 'to promote the in Article 12 of the Association Agreement. 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 Turkish economy and to improve the level of

4. Pursuant to that article, the Association Council adopted Decision No 1/80, which * Original language: Danish. entered into force on 1 July 1980 (hereinafter 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 Decision 64/732/EEC of the Council of 23 December 1963 (Collection of the Agreements concluded by the European Communities, Vol. 3, p. 541). 2 — OJ 1973 C 113 of 24 December 1973.

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

6. Mr Ertanir then returned to Turkey. On 14 April 1992 the German Embassy in Ankara issued the abovementioned visa to him and he returned to Germany the same 2. ... day. The visa, which was valid for three months, stated inter alia that it was '... Valid only for work as a specialist chef in the 3 — The Decision has not been published. Ratskeller Restaurant in Weinheim'.

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7. Upon application dated 30 June 1992, 24 April 1991 he received a work permit Mr Ertanir received on 14 August 1992 a valid until 23 April 1992 authorizing him to residence permit valid until 13 April 1993. A work as a specialist chef in the Ratskeller further application for extension dated 8 Restaurant in Weinheim. On 27 March 1992 April 1993 was granted on that date, with that work permit was extended until 23 effect until 13 April 1994. In each case the April 1993. On 13 May 1993 it was residence permit stated: 'The residence per- extended, with effect from 24 April 1993, mit expires on termination of work as a chef until 23 April 1994. O n 6 May 1994 the in the Ratskeller Restaurant in Weinheim. work permit was again extended, with effect The residence permit does not replace the from 24 April 1994, until 23 April 1996. work permit.'

11. O n 13 April 1995 Mr Ertanir applied for 8. By letter of 9 August 1993 the competent extension of his residence permit for a fur- authorities drew Mr Ertanir's attention to ther two years. The competent authorities of the fact that a residence permit for the pur- the State of Hessen rejected his application pose of work as a specialist chef could be by decision of 17 July 1995, referring, in par- granted or renewed only for a total of three ticular, to the decree of 3 February 1995 years. issued by the Ministry of the Interior for Hessen, which provided that specialist chefs were excluded from the benefits of Decision N o 1/80.

The first question

' 1 . What are the consequences, for the main- tenance of work and residence permits, of interruptions in lawful residence or periods of work without a work permit with regard to rights that have already arisen under Article 6(1) of Decision N o 1/80 of the 14. It appears from the documents before EEC-Turkey Association Council on the the Court that, throughout his stay in Ger- development of the Association in so far as many, Mr Ertanir's work was authorized such periods are not treated as periods of under the rules governing employment. It legal employment under Article 6(2) of was, however, the subject of retroactive Decision N o 1/80? regularization on two occasions. As regards his residence permit, it appears that in April 1994 Mr Ertanir failed to apply in good time for the extension of that permit, with the consequence that he did not have a valid residence permit between 14 April 1994 and 20 April 1994.

2. Is a Turkish employee who holds work and residence permits entitling him to work as a specialist chef duly registered as belong- ing to the labour force of a Member State Therefore the first question actually asks within the meaning of Article 6(1) of whether short interruptions in the lawful Decision No 1/80 even if he was aware from residence and employment of a Turkish the beginning of his residence in that Mem- worker have consequences for his rights ber State that he would be granted a resi- under Article 6(1) of Decision N o 1/80 dence permit only for a total period of three where the Member State in question has sub- years and only to do specific work for a sequently regularized his residence during named employer? those periods.

17. One of the conditions of being able to 19. In Kadiman4 the Court, after observing base a right on Article 6(1) of Decision N o that, for the purpose of calculating the three- 1/80 is that the Turkish worker concerned year period of legal residence required by the has been in legal employment during the first indent of the first paragraph of Article 7 periods referred to therein. Since Article 6(1) of Decision N o 1/80, account must be taken does not lay down any separate conditions as of certain categories of residence abroad, to when employment is 'legal', the issue accordingly held that: must be resolved on the basis of Member States' rules setting out the conditions under which Turkish nationals may enter and reside in their territory and pursue an activ- ity there. Consequently, it is the legislation of the individual Member States which deter- mines the conditions under which residence 'The same applies to the period during which in their national territory is lawful. the person concerned was not in possession of a valid residence permit, where the com- petent authorities of the host Member State did not claim on that ground that the person concerned was not legally resident within national territory, but on the contrary issued a new residence permit to him.' 18. It is quite common for the authorities of a Member State responsible for foreigners not to extend residence and work permits 4 — Case C-351/95 Kadiman v State of Bavaria [1997] ECR until after they have expired, for example 1-2133.

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22. By its second question, the national court is asking whether a Turkish worker 25. It should be pointed out that the Court employed as a specialist chef is in legal has consistently held that Article 6(1) of employment and duly registered as belong- Decision N o 1/80 has direct effect.5 ing to the labour force of a Member State in the sense in which those expressions are used in Article 6(1) of Decision N o 1/80 in the 5 — Sec Case C-192/89 Sevince v Staatssecretaris van Justitie case where it was stated -when the residence [1990] ECR 1-3461.

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According to its wording, that provision than one year in order to be entitled to the concerns only the right to work, but the renewal of his permit to work for the same Court has consistently held that the right to employer ...'. work entails a right of residence. 6

In order to be able to base a right on Article O n the other hand, that provision does not 6(1) of Decision N o 1/80, therefore, the govern the question of the right to work and Turkish worker concerned must be duly reg- reside in Member States of Turkish workers istered as belonging to the labour force of a who fail to meet the temporal conditions laid Member State and have been in legal down therein. Other than in the cases employment during the periods referred to referred to in Decision N o 1/80, it is thus the in that provision. laws of the Member States which determine whether, and if so under what conditions, Turkish nationals may enter and reside in the territory of those States in order to carry out an activity there.

of the activity that it must be determined States as to the conditions under which whether, in connection with the activity here Turkish nationals have a right of entry and of being engaged in, the person concerned is residence in their territory and of pursuing duly registered as belonging to the labour employment there. As the provision does not force in Germany. Therefore, in my view, no make the legality of the employment condi- significance should be attached to the state- tional upon the existence of a formal resi- ments provided by the authorities of the dence permit or the like, the most obvious Member States responsible for foreigners interpretation is that employment is "legal" when issuing residence and work permits to within the meaning of that provision if it is the Turkish worker in question, since that not illegal under the legislation of the Mem- would mean that the Member States would ber State in question for a Turkish national thereby be able to render Article 6(1) of to pursue it.' Decision No 1/80 illusory.

29. In my Opinion in Bozkurt8 I stated 30. In Sevince v Staatssecretaris van Justitie 9 that: (hereinafter 'Sevince') the Court provided a number of guidelines on what the laws of the Member States may include within the concept of 'legal employment' in Article 6(1) of Decision N o 1/80:

'Article 6(1) of Decision N o 1/80 lays down no independent conditions for the employ- ment to be "legal".

'The legality of the employment within the meaning of those provisions, even assuming that it is not necessarily conditional upon possession of a properly issued residence permit, nevertheless presupposes a stable and secure situation as a member of the labour force. I 0

32. It follows from Sevince, however, that for the purpose of determining whether a 34. The same considerations apply 'where Turkish worker may be regarded as legally Member States Umit residence and work per- employed in a Member State it is not mits other than by a temporal restriction, for decisive that he has been formally given a example by stating that the permit entitles residence permit. O n the other hand, it is the holder to •work only for a specific decisive that, according to the national legis- employer or to do work of a specifically lation of the Member State concerned, he defined nature. If Member States were able, was in fact entitled to work and reside in the simply by imposing restrictions of one form or other on residence and work permits, to limit the rights conferred on Turkish work- 11 — Paragraph 32. ers by Community law, they would be

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perfectly free to render illusory the rights of irrelevant that the worker concerned had Turkish nationals under Decision N o 1/80, valid residence and work permits during which forms an integral part of Community those periods and that those permits were law. subject to a temporal or other restriction.

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which provide in advance that the holders [clarifies] the obligation of the Member are to be excluded from the advantages States to take such administrative measures deriving from Article 6(1). as may be necessary for the implementation of those provisions, without empowering the Member States to make conditional or restrict the application of the precise and unconditional right which the decisions of the Council of Association grant to Turkish workers.' , 2 39. The German Government takes the view that Article 6(3) of Decision N o 1/80 confers on Member States the power to issue Turkish nationals with residence permits which pre- clude in advance the application of Article 6(1).

42. It follows that Article 6(3) refers only to the adoption of national implementing pro- visions, and to nothing else. Accordingly, it 40. The Commission contends that Article does not empower Member States to imple- 6(3) of Decision N o 1/80 does not allow ment national provisions excluding certain Member States to introduce residence and categories of Turkish nationals who objec- work permits which exclude Turkish nation- tively meet the conditions for entitlement to als in advance from the benefit of Article request an extension of their residence and 6(1), which would be contrary to the pur- work permits under Article 6(1) of Decision pose thereof. N o 1/80 from the rights based on that provi- sion.

41. In Sevince, the Court held that:

43. The answer to this question should therefore be that Article 6(3) of Decision N o 1/80, which provides that the procedures for applying Article 6(1) are to be established 'The conclusion that the articles of ... under national rules, must be interpreted as [Decision No] 1/80 ... can have direct effect not empowering Member States to derogate cannot be affected by the fact that ... Article from Article 6(1). 6(3) of Decision N o 1/80 [provides] that the procedures for applying the rights conferred on Turkish workers are to be established under national rules. [That provision] merely 12 — Paragraph 22.

(3) Article 6(3) of Decision N o 1/80, which provides that the procedures for applying Article 6(1) are to be established by national rules, must be inter- preted as not empowering Member States to derogate from Article 6(1).

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