C-210/97

AKMAN v OBERKREISDIREKTOR DES RHEINISCH-BERGISCHEN-KREISES

OPINION OF ADVOCATE GENERAL LÉGER delivered on 9 July 1998 *

1. This question which has been referred to nity and Turkey 3 ('the Agreement'). Article the Court by the Verwaltungsgericht Köln 36 provides that freedom of movement for (Administrative Court, Cologne) asks in workers between Member States of the Com- essence whether the right of residence which munity and Turkey is to be secured by pro- the child of a Turkish worker has under the gressive stages, in accordance with the prin- second paragraph of Article 7 of Decision N o ciples set out in Article 12 of the Agreement, 1/80 of the EEC-Turkey Association Coun- whereby the Contracting Parties agree to be cil 1 ('Decision N o 1/80'), where that child guided by Articles 48, 49 and 50 of the Treaty has completed a course of vocational training establishing the Community. in a Member State, is subject to the presence or even employment of his parent in that State at the time when he proposes to join the labour force.

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Article 6(1) of Section 1, which is worded as 5. Secondly, under Article 7, Turkish nationals follows: may, as members of the family of a Turkish worker, be granted a right of access to employ- ment either if they have been authorised to join their parent (first paragraph) or because they are children of Turkish workers and have completed a course of vocational training in the host State (second paragraph):

' 1 . Subject to Article 7 on free access to employment for members of his family, a Turkish worker duly registered as belonging to the labour force of a Member State: 'The members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State, who have been authorised to join him:

— 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; — shall be entitled — subject to the priority to be given to workers of Member States of the Community — to respond to any offer of employment after they have been legally resident for at least three years in that Member State;

— 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 — shall enjoy free access to any paid employ- employment, with an employer of his ment of their choice provided they have choice, made under normal conditions and been legally resident there for at least five registered with the employment services years. of that State, for the same occupation;

8. Shortly after he arrived lawfully in the 6. Finally, before seeking employment, Federal Republic of Germany, the plaintiff in Turkish children have a right, under Article 9 the main proceedings was issued with a resi- of Decision N o 1/80, to access to education dence permit of limited duration, in January in the host State, subject to certain condi- 1980, in order to take a course of vocational tions. This article is worded as follows: training, which he completed successfully in April 1993. O n his arrival, he lived at first with his father, who had been employed in Germany since 1971. In 1981 he moved in order to be nearer his place of study. His father left Germany in 1986 and returned to Turkey. 'Turkish children residing legally in a Member State of the Community with their parents who are or have been legally employed in that Member State, shall be admitted to courses of general education, apprenticeship and voca- tional training under the same educational entry qualifications as the children of nationals of that Member State. They may in that 9. The plaintiff's residence permit was first Member State be eligible to benefit from the extended until 1982 and then regularly advantages provided for under the national renewed for limited periods for the purpose legislation in this area.' of studying engineering. Finally, from 1990, the permit included an ancillary condition prohibiting him from taking up gainful employment except for part-time and vaca- tion work.

Facts and procedure

10. O n 16 January 1991 the plaintiff obtained 7. The question referred by the national court an unconditional work permit of unlimited has arisen in connection with a dispute duration. O n this basis he worked part-time between Mr Akman ('the plaintiff in the main for two employers in succession, first from 1 proceedings'), a Turkish national born in 1960, May 1991 to 31 August 1993 and then from and the German authorities responsible for 5 April 1994. At the date of the hearing in the residence permits (Oberkreisdirektor des main proceedings (8 November 1995) he was

16. The national court found that there was uncertainty as to the correct application of the abovementioned Community provision 13. After lodging a first, unsuccessful, objec- and has referred the following question to the tion to that decision in so far as it failed to Court: grant his main application, the plaintiff again submitted an application on 19 August 1994 for an extension of his residence permit. The defendant authority has not yet given a deci- sion on that application. 'For a child of a Turkish worker to have the right to extension of his residence permit, which, according to the judgment of the Court of Justice in Case C-355/93 Eroglu v Land Baden-Württemberg, arises from the second 14. Faced with inertia on the part of the paragraph of Article 7 of Decision N o 1/80 competent administrative authority, the plain- of the EEC-Turkey Association Council on tiff instituted proceedings before the Verwal- the development of the Association, must the

4 — According to the facta given in the order for reference. 5 — Case C-355/93 Eroglu [1994] ECR I-5113.

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employed parent still be resident in Germany, force of a Member State'. 7 It was not the or even still be in an employment relation- intention of the Contracting Parties to regu- ship, at the time when the child has com- late access to the territories of the Member pleted his course of vocational training, or is States, but to establish gradually freedom of that provision sufficiently complied with if movement between them for workers 8 on a the Turkish parent was legally employed at pre-accession basis. 9 an earlier time for at least three years?'

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granted by [that provision] to the Turkish 21. The Verwaltungsgericht Köln is therefore worker would be deprived of any effect — right to ask itself, by reference to the Eroglu the existence, at least at that time, of a right judgment, whether the plaintiff has right of of residence for the person concerned'. 12 access to employment on the basis of Deci- sion N o 1/80 from which to infer a corre- sponding right of residence.

The same reasoning was applied to the first 22. In this connection, although the national indent of Article 6(1) '... since without a right court refers in its question in particular to the of residence the grant to the Turkish worker, second paragraph of Article 7 of Decision N o after one year's legal employment, of the right 1/80, it did consider whether other provisions to renewal of his permit to work for the same of the Decision could apply in the present employer would likewise be deprived of any case, but found that none could, since it seeks effect'. 13 to establish, very broadly, 'whether entitle- ment to a residence permit can be derived from Community law'. 16

However, the third indent of Article 6(1) requires two conditions to be fulfilled for a Therefore the rights which it confers on the Turkish national to have the right to free person concerned depend on the conditions access to any gainful employment of his under which he was granted rights of entry choice. First, he must be legally employed in and of residence: '... the first paragraph of a Member State and, secondly, he must already Article 7 expressly states that the family have been in legal employment for four years. member must have been authorised by the The 'legality' of the plaintiff's periods of Member State concerned to "join" the Turkish employment is not at issue, 18 and it is suf- worker duly registered as belonging to the ficient to observe that he has not completed labour force of that State'. 21 In addition, the four years' employment in Germany. benefit of that provision presupposes 'actual cohabitation in a household with the work- er' 22 for the specified period unless '... objec- tive circumstances justified the failure of the migrant worker and the members of his family to live under the same roof in the host Member State'. 23 25. The first paragraph of Article 7 of Deci- sion N o 1/80 is not relevant either in the present circumstances.

It is clear that this is not Mr Akman's situa- tion. Firstly, he has not been 'authorised to join' his father within the meaning of the 26. Since the Kadiman judgment, cited above, Kadiman judgment because he entered Ger- the Court has clearly settled that that provi- many legally for the purpose of a course of sion, the purpose of which is '... to favour study and he obtained a residence permit 'for employment and residence of Turkish workers the purpose of attending a college of further duly registered as belonging to the labour education'. 24 Secondly, I doubt whether the fact that the plaintiff left his father's home in order to live alone in the year following his

arrival in Germany was motivated by an 29. The person concerned must (1) be the Objective circumstance'. Although in the child of a Turkish worker; (2) have completed Kadiman judgment the Court found that the a course of vocational training in the host fact that 'the distance between the worker's country; and (3) prove that one of his parents residence and ... a vocational training estab- 'has been legally employed in the Member lishment attended by [the member of the State concerned for at least three years'. family] required him or her to live in separate accommodation', 25 would be an objective cir- cumstance of that kind, nevertheless such interruptions must not be intended 'to detract from residence together in the host Member State'. 26 The contrary is true in the present case, however, since the findings of the national court show that the plaintiff clearly moved 30. Although the question before the Court out with no intention of returning to live relates essentially to the third condition, it is with his father at a later date. necessary to ensure first that the plaintiff in the main proceedings satisfies the first condi- tion, which is denied by the Greek Govern- ment. 28 The second condition has not been discussed by the parties and I shall not con- sider it either.

27. Consequently it is in the light of the second paragraph of Article 7 that the ques- tion whether the plaintiff in the main pro- ceedings can rely on a right of residence 31. The question is, therefore, whether the arising from a right of access to employment plaintiff can continue to rely on his status as must be examined. the son of a 'Turkish worker' in spite of the fact that his father had left the host country for good and, a fortiori, the labour force of that State at the time when the plaintiff wished to avail himself of that status.

35. It must be remembered that the aim of the Association Council, in adopting the social provisions of Decision N o 1/80, was to go one stage further, pursuant to Article 12 of the Agreement and guided by Articles 48, 49 The Echternach and Moritz judgment 31 pro- and 50 of the Treaty, towards securing freedom vided the occasion for stating, clearly this time of movement for workers, in accordance with and without the need for contrary inference, the pre-accession nature of the Agreement. In that 'the child of a worker of a Member State order to ensure compliance with that objec- who has been in employment in another tive, the Court considered it 'essential to Member State retains the status of member of transpose, so far as possible, the principles a worker's family within the meaning of Regu- enshrined in those Treaty articles to Turkish lation N o 1612/68 when that child's family workers who enjoy the rights conferred by returns to the Member State of origin and the Decision N o 1/80'. 33 child remains'in the host State, even after a certain period of absence, in order to con- tinue his studies, which he could not pursue in the State of origin'. 32

36. I therefore propose that the Court con- strue the term 'children of Turkish workers' by analogy with 'child of a worker', as inter- preted by the Court in the context of the 34. Although Turkish nationals cannot be provisions relating to freedom of movement directly recognised as entitled under the for Community workers, particularly in the light of the Brown and Echternach and Moritz judgments which I have cited. 29 — Council Regulation of 15 October 1968 on freedom of movement for workers within the Community, OJ, English Spedii Edition 1968 (II), p. 475. 30 — See Case 197/86 [1988] ECR 3205, paragraph 30. 33 — See the Bozkwrt judgment, cited above, paragraph 20, and, 31 — See Joined Cases 389/87 and 390/87 [1989] ECR 723. more recently, the Tetik judgment, cited above, paragraphs 32 — Ibid., paragraph 23, emphasis added. 20 and 28.

42. O n the other hand, the Commission and the plaintiff in the main proceedings contend 39. Once it is established that the plaintiff in that the second paragraph of Article 7 merely the main proceedings can still claim his family requires the person concerned to have com- relationship with a Turkish worker, it is still pleted a course of vocational training in the necessary to ascertain whether he also fulfils host State and one of his or her parents to the condition that one of his parents 'has been have been legally employed there for at least legally employed in the Member State con- three years. The Commission and the plain- cerned for at least three years' in order for tiff do not, however, consider it necessary for him to be recognised as having a right of resi- the migrant worker in question to be still so dence arising from the right of access to resident and/or employed at the time when employment which he would have under the the child wishes to respond to an offer of second paragraph of Article 7 of Decision N o employment. 1/80.

40. The two interpretations of this condition 43. I am certain that the latter approach is that were proposed in the course of the correct.

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44. First of all, it seems to be supported by a tense in the second paragraph of Article 7 literal interpretation of the wording. seems to me quite significant.

47. Although I must agree that, on its own, a literal interpretation cannot be determinant the underlying rationale of the second para- In any case, if the legislature had intended to graph of Article 7 nevertheless precludes the refer only to an existing situation, as alleged meaning suggested by the German, Greek and by the Governments which intervened in the Austrian Governments. course of the procedure, the use of the present tense (or present subjunctive) would certainly have been more appropriate. The article in question would then have referred to the condition that one of the parents 'exerce (or exerçat) ... un emploi ... depuis trois ans au moins'. Furthermore, the first paragraph of Article 7 is worded in the present tense as it necessarily refers to a present situation, not 48. As I have said, the unity of Article 7 as a one which is in the past ['lorsqu'ils y résident whole arises from the group of persons upon régulièrement depuis trois ans (or cinq ans) whom it confers rights: the family members au moins']. Therefore the choice of the past of a Turkish worker. Nevertheless it is clear, on reading the two paragraphs of that article, that the Contracting Parties intended to single 34 — T. Girodet, 'Dictionnaire Bordas des pièges et difficultés de out for special treatment, within that group, la langue française". Les Référents Bordas. the children of Turkish workers.

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49. The first paragraph of Article 7 clearly In addition, to interpret the second paragraph, refers to the aim of family unity, as the Court which applies specifically to 'children of observed in the Kadiman judgment cited Turkish workers', as also aiming to create above, which gives rise to the family mem- favourable conditions for reuniting the family ber's obligation to live with the parent, which would deprive it of all practical effect. If con- the Court infers in particular from the words strued in this way, it would add nothing new '[who have been authorised] to join him'. 35 in relation to the first paragraph, which refers more broadly to reuniting 'the members of the family', who obviously include the chil- dren.

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52. In actual fact, the rationale of the second 54. Apart from this independent underlying paragraph of Article 7 is quite different from rationale of the second paragraph of Article 7, that of reuniting the family. As the Commis- as compared with the first paragraph, I think sion suggests, it is conducive to treating the the context of that provision really must be child as an independent person who has com- taken into account. pleted his or her studies in a Member State precisely in order to improve his chances of finding work himself, so that he is no longer dependent on his parent to provide for his needs. Where the children of Turkish workers have completed a course of vocational training, the second paragraph of Article 7 aims to 55. The reason is that 'the coherence of the encourage them to join the labour force, in system' set up by Decision N o 1/80, to which preference to such children who have no the Court attaches the greatest importance, 38 vocational training. would be affected if the second paragraph of Article 7 were construed as requiring the Turkish parent of a child who has completed his studies to be still working when the child wishes to join the labour force.

This interpretation ties up with the concept of vocational training which the Court set out, in relation to Community nationals, in 56. In this connection it is necessary to bear the Gravier judgment: 37 '[a]ccess to voca- in mind Article 9 of Decision N o 1/80, which tional training is in particular likely to pro- regulates the access of Turkish children to mote free movement of persons throughout vocational training. This provision is intended the Community, by enabling them to obtain to be applied necessarily before the search for a qualification in the Member State where employment, unlike the second paragraph of they intend to work ...'. Article 7, which governs the situation of those children of Turkish workers who have com- pleted their vocational training.

Consequently there is no requirement for the parent of a child seeking training to be legally employed at the time when the child claims Article 5 of the abovementioned Regulation the benefit of Article 9. I think it would be does not have the same scope ratione maté- somewhat inconsistent, not to say absurd, to riae and ratione personae as the second para- impose such a requirement on the completion graph of Article 7 of Decision N o 1/80. Firstly, of vocational training. If the Turkish parent is the Regulation relates to the right of family no longer employed when his child begins a members to remain, not the right to respond course of vocational training, which may be to an offer of employment and, secondly, the the case under Article 9, how can he reason- Regulation applies only to descendants under ably be expected or required to be employed the age of 21 years or persons treated as a few years later, when his child completes his such. 40 vocational training?

59. O n the other hand, when applying the 57. I therefore consider that the condition of second paragraph of Article 7, it seems to me at least three years' employment of the parent important to maintain certain parallels with in the host State, required in the second para- Article 6. This means that, where the children graph of Article 7, means either present or of Turkish workers have completed a course past employment. of vocational training, however short, they do not receive more favourable treatment, in relation to rights of residence, than their par- ents, who may have worked for decades in the host State.

60. As we know, the Court held in the Boz- 61. Consequently, for the sake of consistency, kurt judgment that a Turkish worker who has I consider that although, under the second ceased for good to belong to the labour force paragraph of Article 7, a child of a Turkish of a Member State because he has, for example, worker is free to respond to any offer of reached retirement age or become totally and employment after completing his vocational permanently incapacitated for work does not training and has a corresponding right of resi- have the right to remain in that State by virtue dence, that right must be exercised within a of Article 6(2) of Decision N o 1/80. O n the 'reasonable period', meaning a period 'in other hand, it is clear from the Tetik judg- which to apprise himself, in the territory of ment that where a Turkish national is consid- the Member State which he has entered, of ered to be 'genuinely seeking new employ- offers of employment corresponding to his ment, complying where appropriate with the occupational qualifications and to take, where requirements of the legislation in force in the appropriate, the necessary steps in order to be host Member State', he is not to be regarded engaged', according to the wording of the as having permanently left the labour force of Tetik judgment, 43 based on the Antonissen that State. Like Community nationals in the judgment, 44 applicable to Turkish nationals. same situation, 41 he must be regarded as still In the present case, this requirement appears belonging to the labour force of that State to be fulfilled as the plaintiff in the main pro- 'for the period reasonably necessary for him ceedings claimed before the national court to find new employment'. 42 that he had various offers of employment .

by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, within a reasonable period after completing vocational training in the host Member State, if one of his parents is or was legally employed in that Member State for at least three years, and it is not necessary for that parent still to be working or even residing in that Member State at the time when the child proposes to enter the labour force:

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