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6. When he entered German territory Mr 10. Mr Ergat went back to Turkey in Ergat was not required, under the legisla- August 1992, returning to Germany only tion applicable at the time, to have a in autumn 1993. He states that since June residence permit. Following an application 1994 he has again been in employment of 29 April 1983, he was issued a residence there. permit expiring on 1 April 1984. That permit was extended, first, until 1 April 1985 and then, on the basis of an applica- tion dated 9 April 1985, until 1 April 1987. Following a further application by 11. The plaintiff brought proceedings Mr Ergat, dated 15 April 1987, his resi- before the courts against the decisions of dence permit was extended until 1 April 22 January and 4 May 1992. By judgment 1989, then, following an application of of 11 April 1994, the Verwaltungsgericht 20 April 1989, until 28 June 1991. Sigmaringen (Administrative Court, Sig- maringen) set those decisions aside and ordered the Stadt Ulm to extend Mr Ergat's residence permit indefinitely. On appeal by the Stadt Ulm, that judgment was over- turned by the Verwaltungsgerichtshof Baden-Württemberg (Baden-Württemberg 7. By a form signed on 10 June 1991, but Higher Administrative Court) by judgment lodged with the appropriate authority deal- of 7 December 1995. ing with foreigners only on 24 July 1991, Mr Ergat applied for a further extension of his residence permit.

— be entitled in that Member State, after one year's legal employment, to the 14. In this context, the Bundesverwaltungs- renewal of his permit to work for the gericht considers that refusal to extend Mr same employer, if a job is available; Ergat's residence permit cannot, despite six criminal offences committed by him, be justified under Article 14(1) of Decision No 1/80, which provides that the provi- sions of the section on questions relating to — shall be entitled in that Member State, employment and the free movement of after three years of legal employment workers 'shall be applied subject to limita- and subject to the priority to be given tions justified on grounds of public policy, to workers of Member States of the public security or public health'. As in the Community, to respond to another case of nationals of Member States, public offer of employment, with an employer policy may be invoked only in the event of of his choice, made under normal an actual and sufficiently serious danger conditions and registered with the affecting a fundamental interest of society. employment services of that State, for However, in the present case, the offences the same occupation; committed by Mr Ergat were not particu- larly serious and were all punished by fines which, moreover, in the overwhelming majority of cases, were of small amounts.

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

15. In the opinion of the Bundesverwal- tungsgericht, Mr Ergat cannot derive any rights from Article 6(1) of Decision No 1/80, which provides: 16. According to the national court, Mr Ergat does not satisfy the conditions laid down in that provision. Thus, on the date of the application at issue, Mr Ergat had not been in legal employment with the same employer for at least a year and, with regard to the employment after the expiry '[S]ubject to Article 7 on free access to of his last residence permit, he was not in a employment for members of his family, a stable and secure situation as a member of

18. The fact that the Mr Ergat was of full 22. The national court is of the opinion age at the time of expiry of the last that that conclusion means that, if a residence permit does not preclude the residence permit is required under national application of the first paragraph of Arti- law, the first paragraph of Article 7 of cle 7 of Decision No 1/80, since that deci- Decision No 1/80 can be a material legal sion contains no age-limit for possession of basis therefor. It does not mean, on the the status of member of the family of a other hand, that the person concerned does Turkish worker. not need a residence permit or that such a permit should be merely declaratory. If, as in this case, legal residence is the condition for a right derived from the first paragraph of Article 7 of Decision No 1/80 to arise, it cannot be founded on a legal position 19. Moreover, it is apparent from the which merely follows from the existence judgment in the Kadiman case 1 that that of that right. provision has direct effect.

23. It is clearly upon that consideration, 20. In the present case, the issue is whether according to the national court, that the Mr Ergat satisfies the condition of legal Court of Justice of the European Commu- residence in the host Member State, which nities bases its reasoning. It has held 2 that, is laid down in the first paragraph of for the purposes of the first paragraph of Article 7. Fulfilment of that condition is Article 7, account must be taken of the assessed according to national law which, period during which the person concerned in Germany, requires a residence permit. was not in possession of a valid residence However, the residence permit issued to Mr permit, where the competent authorities of

the host Member State did not claim on under Article 234 (formerly Article 177) of that ground that the person concerned was the EC Treaty, the following question: not legally resident within national terri- tory, but on the contrary issued a new residence permit to him. However, in the opinion of the Bundesverwaltungsgericht, that does not call into question the require- ment in principle of a residence permit. Moreover, the renewal without retroactive effect of a permit which had already 'Does a Turkish national who has entered expired when the application for extension the country as a member of the family of a was made does not, according to the Turkish worker duly registered as belong- national court, affect the absence of legality ing to the labour force, without requiring a of the previous period of residence not residence permit in accordance with the covered by a permit. Finally, contrary to the national law on foreigners in force at the practice followed in the Kadiman case, the date of entry, and has subsequently been in competent authorities in this case refused to possession of residence permits with inter- grant Mr Ergat a further extension of his ruptions, but who has applied for extension residence permit. of his last residence permit 26 days after its expiry, satisfy the conditions in the first paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council that he has been "legally resident" there "for at least three years" (first indent) or "for at least five years" (second indent), if the national authorities have refused to 24. In those circumstances, it is not clear extend the residence permit?' according to the Bundesverwaltungsge- richt, whether the first paragraph of Arti- cle 7 of Decision No 1/80 presupposes that the family member of a Turkish worker must still be legally resident in the host Member State at the material time for deciding on the application for extension of the expired residence permit, or whether that provision allows no importance to be attached to the legality of residence on the The observations submitted to the Court basis of a residence permit if the person concerned was still in possession of a valid residence permit a few weeks previously.

27. According to the German Government, 30. In the German Government's opinion, that provision governs access to the labour any other interpretation would mean that, force for the family members of a Turkish once three or five years had elapsed, the worker, to whom, in accordance with first paragraph of Article 7 would grant to national law, a residence permit has been the members of a Turkish worker's family a granted for the purpose of establishing and right of residence regardless of the national preserving the community of family life requirements concerning residence permits. with that Turkish worker. Moreover, legal residence within the territory of the host State constitutes a prior condition for the application of that provision and it is the provisions of national law which determine when residence is legal. However, in the 31. However, such a consequence, it main- present case, Mr Ergat was no longer tains, would be contrary to the terms of the legally resident in Germany, since his provision in question, which prescribes residence permit had been out of date for legal residence for a period of 'at least' 26 days. three years or five years, and to its objective which, in order to promote the integration of the members of a Turkish worker's family into the host Member State by creating conditions conducive to family reunification, makes the rights conferred 28. Furthermore, according to the German on those persons conditional upon the Government, it is clear, by contrary infer- situation of the Turkish worker himself; ence, from paragraph 54 of the Kadiman on the other hand, a Turkish national judgment, to which the Bundesverwal- cannot enjoy independent rights unless he tungsgericht also refers, that the Court satisfies the conditions in Article 6 of takes the view that the condition of legality Decision No 1/80, which also presupposes of residence is not satisfied if, as in this that the requirements of national law case, the competent authorities have concerning residence and work permits refused to extend the residence permit of have been complied with. the person concerned and, in any event, that case-law could only have the conse- quence of regularising the previous gaps in Mr Ergat's legal residence. 32. In the Commission's opinion, the ques- tion submitted for a preliminary ruling raises two separate legal issues. 29. Regardless of whether such retroactive effect is lawful, it is not, according to the German Government, sufficient for the person concerned to have resided legally in the host Member State at a certain time 33. Firstly, according to the Commission, it in the past, but, conversely, it is decisive is necessary to decide whether the first that, at the date of making the application, paragraph of Article 7 of Decision No 1/80 the Turkish national still has a residence is to be taken to mean that, at the time permit and is, therefore, legally resident in when the member of a Turkish worker's the host Member State. family relies on that provision in order to

36. Secondly, however, according to the Commission, it is important to determine whether, in view of the minimal length of 34. Although it is true, according to the time of less than a month by which Mr Commission, that, where a residence per- Ergat exceeded the period of residence mit is applied for in due time and in a authorised until a further permit had to lawful manner and all the conditions in the be applied for and taking into account the first paragraph of Article 7 are satisfied, fact that Mr Ergat could have had a claim that provision confers entitlement to the to extension of his residence permit if he issue of a residence permit, which the host had submitted his application in due time, Member State may not refuse the Turkish the refusal given in this instance by the national, that State could, on the other German authorities is in accordance with hand, legitimately require a member of a the principle of proportionality. The failure Turkish worker's family to register in the of the plaintiff in the main proceedings to lawful manner with the competent national act seems minor, whereas its legal conse- authorities, declaring a fixed place of quence, namely deportation from the host residence, and to maintain legal residence Member State, is considerable. throughout his stay within the territory of the State concerned. On that basis, the State concerned would be entitled to require the obtaining of a residence permit in the forms and according to the rules laid 37. According to the Commission, applica- down by its legislation. Even if that permit tion of the principle of proportionality has only declaratory status, the person presupposes that all the relevant circum- concerned would have to prove legal resi- stances of the case are appropriately taken dence and maintain it, otherwise he would into account. no longer satisfy the conditions in the first paragraph of Article 7. That strict inter- pretation of the provision in question is justified by the legitimate interest of Mem- 38. It concludes that, in view of the mini- ber States in ensuring that foreigners pre- mal nature of the delay at issue in this case sent within their territory comply with the and having regard to the fact that other late relevant national legislation and, in parti- applications by Mr Ergat have not led the cular, continue to reside there legally. competent authorities to refuse extensions

43. However, in the French Government's opinion, the discretion enjoyed by Member States in this regard cannot undermine the effectiveness of Decision No 1/80 and 40. However, as regards the limitation of account should be taken of Mr Ergat's the period of validity of the residence situation, namely, that he was authorised to permit held by the Turkish worker's family enter Germany for the purpose of family member in the host Member State, the reunification, resided there legally for 16 French Government states that the Court years and, since 1989, has had a work also held in that judgment that the rights permit with no time-limit. In those circum- conferred by the first paragraph of Arti- stances, the restrictive interpretation cle 7 on family members of a Turkish adopted by the German authorities would worker are granted by that provision to appear to go beyond the objective pursued the persons concerned regardless of the by the Agreement establishing an Associa- issue by the authorities of the host Member tion between the European Economic Com- State of a specific administrative document, munity and Turkey, signed at Ankara on such as a residence permit. 12 September 1963.

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44. It is therefore a matter for the national rights of a Turkish migrant worker and his court to determine whether the German family. In its judgment in Sevince 3 the authorities have, in this case, exercised Court stated that the provisions of the third their powers with regard to the entry ano indent of Article 6(1) of Decision No 1/80 residence of Turkish nationals without 'merely govern the circumstances of the impairing the effectiveness of Decision Turkish worker as regards employment, No 1/80. and make no reference to his circumstances concerning the right of residence'.

49. Legality of residence and legality of employment must therefore not be con- 46. The national court takes the view that fused. the Kadiman judgment 'does not decide whether the said provision presupposes that the member of the family must still be legally resident at the material time for deciding on the application for extension of 50. Article 7, on the other hand, governs the expired residence permit, or whether the situation of family members as regards the law of the Association disregards whe- employment, but establishes an explicit ther the residence was legal on the basis of link between the right to employment and a residence permit at the material time if the legality of residence. It grants to those the foreigner was still in possession of a family members of workers who 'have been residence permit a few weeks previously'. legally resident... for 5at least five years' in the host Member State 'free access to any paid employment of their choice'.

3 — Case C-192/89 [1990] ECR I-3461. 47. I shall first attempt to deal with the 4 — Emphasis added. question raised in the general context of the 5 — Emphasis added.

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51. The Bundesverwaltungsgericht takes 54. It would, moreover, be incomprehensi- the view that it can be inferred from the ble if a worker's child who has been use of wording implying the present tense 'legally' resident in the host Member State in that provision, as well as from the word for at least five years could then reside there 'for', that the family member's residence 'illegally' for the simple reason that he had must continue to be legal, even at the end of in the meantime acquired the right of free the five-year period. access to any paid employment of his choice.

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57. But that is not at all the effect of the were, under Article 48 (which has become, rest of that judgment, where the following after amendment, Article 39(3)(d) of the is stated: Treaty, made subject to regulations to be drawn up by the Commission, with the result that the rules applicable under Arti- cle 48 (which has become, after amend- ment, Article 39) cannot simply be trans- posed to Turkish workers.' 10

'Article 6 of Decision No 1/80 covers the situation of Turkish workers who are working or are temporarily incapacitated for work. It does not, on the other hand, cover the situation of a Turkish worker who has definitively ceased to belong to the 58. It is therefore clear that the right of labour force of a Member State because he residence enjoyed by the person concerned has, for example, reached retirement age or, is neither unconditional nor unlimited in as in the present case, become totally and time. permanently incapacitated for work. 9

Consequently, in the absence of any specific 59. Admittedly, the Bozkurt judgment con- provision conferring on Turkish workers a cerns Article 6, whereas the present case right to remain in the territory of a Member concerns Article 7. However, since both State after working there, a Turkish natio- those provisions have the same objective, nal's right of residence, as implicitly but namely to regulate the conditions under necessarily guaranteed by Article 6 of Deci- which a Turkish national can claim a right sion No 1/80 as a corollary of legal to work in the host Member State, it seems employment, ceases to exist if the person to me that what applies to Article 6 also concerned becomes totally and perma- applies, mutatis mutandis, to Article 7. nently incapacitated for work.

'[As] regards the limitation of the period of validity of the residence permit held by the Turkish worker's family member in the host Member State, it must be observed that, 64. However, that legislation may, without whilst the Member States retain the power being in conflict with Decision No 1/80, to lay down the conditions under which provide that, in certain circumstances, the that family member may enter their terri- child of a Turkish worker can no longer tory and reside there until he or she remain in the host Member State. becomes entitled to respond to any offer of employment 11 ... the fact nevertheless remains that the rights conferred by the first paragraph of Article 7 on family members of a Turkish worker are granted 65. Such may be the case, in particular, by that provision to the persons concerned where: regardless of the issue by the authorities of the host Member State of a specific admin- istrative document, such as a residence permit'. — the child is voluntarily unemployed for an extended period; 12

62. In the abovementioned passage, the — the child had returned to his country of Court certainly did not mean that a Mem- origin for a long period; 13 ber State's legislation on the residence of foreigners ceases to apply to family mem- bers of a Turkish worker once they have 12 — Conclusion drawn, by contrary inference, from the judg- obtained the right of access to the paid ment in Case C-171/95 Tetik [1997] ECR I-329. employment of their choice. In so far as 13 — Observation made by the Commission at the hearing and which seems to me to be relevant. It should be pointed out that, in the case of Community nationals, it is only interruptions of residence not exceeding six consecutive months which do not affect the validity of their residence 11 — Emphasis added. permit.

67. It may be noted in passing that Arti- 71. It remains to be ascertained what cle 12 of Decision No 1/80 gives a Member inferences can be drawn from the fact that State the right to refrain from automati- a Turkish worker has ceased to be in cally applying the provisions of Articles 6 possession of such a residence permit and 7 where it experiences or is threatened through failing to apply in time for its with serious disturbances on its employ- renewal and whether, in that case, the ment market which might seriously jeopar- national authorities are entitled to deprive dise the standard of living or level of him of the rights acquired pursuant to the employment in a particular region, branch first paragraph of Article 7 by refusing to of activity or occupation. The State con- extend his residence permit. cerned is to inform the Association Council of any such temporary restriction. How- ever, that provision has not yet been invoked.

72. The German Government and the Commission propose a particularly rigor- ous answer to that question. They take the 68. Nevertheless, the Member State must have the right to check periodically whe- ther any of the circumstances referred to 14 — See Article 6 of Council Directive 68/360/EEC of 15 Octo- ber 1968 on the abolition of restrictions on movement and above applies to a Turkish worker or residence within the Community for workers of Member States and their families (OJ, English Special Edition 1968 members of his family. (II), p. 485).

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77. To deport a worker because of a delay in the submission of his application would also amount to placing such a delay on the 74. Thus, for example, when carrying out a same level as an offence against public check, the police may find that a driver is policy or public security. not in possession of a driving licence. Such a driver certainly deserves to be penalised, but the penalty may differ depending on whether, on the one hand, he has never had a driving licence or has been disqualified from driving by a judicial decision or 78. Finally, the criterion proposed above whether, on the other hand, he is no longer can also be supported by an argument from in possession of a valid driving licence analogy, based on the directives adopted by because he has failed to undergo the the Council with regard to certain cate- medical examination required of him by gories of Community nationals. the regulations on account of his age.

75. It seems to me that the Court was 79. I refer here to Council Directive referring to a distinction of that kind when 90/364/EEC of 28 June 1990 on the right

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of residence, 15 which concerns nationals of 82. However, contrary to what is the case Member States who do not enjoy that right for Community workers who are actually under other provisions, to Council Direc- in employment, those directives do not tive 90/365/EEC of 28 June 1990 on the provide that such residence permits must right of residence for employees and self- be automatically renewable. employed persons who have ceased their occupational activity, 16 and to Council Directive 93/96/EEC of 29 October 1993 on the right of residence for students. 17

84. Similarly, Turkish nationals do not have exactly the same rights as active workers from another Member State. They do not, as individuals, have the right to come and work in the Community. It 81. All those directives also provide that follows from Articles 6 and 7 of Decision exercise of the right of residence is to be No 1/80 that their entry into the Commu- evidenced by the issue of a document nity is subject to express individual autho- known as a 'Residence Permit for a risation. Moreover, their right of residence is National of a Member State of the EEC', dependent, according to the Bozkurt judg- the validity of which may be limited to five ment, on their being 'in legal employment', years on a renewable basis. of which it is the corollary. It is therefore logical to treat them in the same way as the categories of persons covered by the three 15 — OJ 1990 L 180, p. 26. abovementioned directives. This means 16 — OJ 1990 L 180, p. 28. that it is possible to deny them extension 17 — OJ 1993 L 317, p. 59. of their residence permit only if they no

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longer satisfy the substantive conditions on on such persons penalties with a greater which their right of residence is based. deterrent effect than that of mere fines.

88. In the judgment in Pieck, 18 the Court held that the failure on the part of a Community national to obtain the special residence document prescribed in Article 4 85. It remains to be ascertained how the of Directive 68/360 may not be punished competent authorities are to treat a Turkish by imprisonment. worker who, while in legal employment, neglects for months to apply for the renewal of his permit or who, on each occasion when it expires, submits his application several weeks late. 89. However, the Court gave as the reason for that finding the fact that that special residence document cannot be assimilated to a residence permit, in connection with the issue of which the national authorities have a discretion. 19

A Turkish national who, as a member of the family of a Turkish worker duly registered as belonging to the labour force, has acquired the rights conferred by the first paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council of 19 September 1980 and who has applied for extension of his last residence permit after its expiry does not forfeit those rights on account of that expiry and of the refusal to renew his permit, provided that he still satisfies the substantive conditions governing his right of residence.

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