C-188/00

OPINION OF MR LÉGER — CASE C-188/00

OPINION OF ADVOCATE GENERAL LÉGER delivered on 25 April 2002 1

1. In the present case the Verwaltungs- I — Relevant Community provisions gericht (Administrative Court) Karlsruhe (Germany) has referred five questions on the interpretation and effects of Articles 6 and 7 of Decision No 1/80 of 19 September 1980 on the development of the Associ- ation, 2 adopted by the Association Council 3. Under Article 12 of the Agreement, the established by the Association Agreement Contracting Parties agreed progressively to between the European Economic Commu- secure freedom of movement for workers nity and Turkey. 3 between them and for that purpose to be guided by Articles 48 and 49 of the EC Treaty (now, after amendment, Articles 39 EC and 40 EC) and Article 50 of the EC Treaty (now Article 41 EC).

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5. Decision No 1/80, adopted pursuant to Turkish worker duly registered as belong- the Additional Protocol, seeks to improve, ing to the labour force of a Member State: in the social field, the treatment accorded to workers and members of their families in relation to the arrangements introduced by Decision No 2/76 of the Association Coun- cil of 20 December 1976. 6 — 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. Decision No 1/80 confers upon Turkish nationals, in their capacity as workers or as members of the family of a worker, rights — shall be entitled in that Member State, of access to employment in the host after three years of legal employment country which become progressively more and subject to the priority to be given extensive and which have as their corollary to workers of Member States of the the right to reside in that country. 7 Community, to respond to another offer of employment, with an employer of his choice, made under normal con- ditions and registered with the employ- ment services of that State, for the same occupation;

7. Article 6(1) of Decision No 1/80 sets out the conditions which a Turkish national must fulfil in order to enjoy such rights in — shall enjoy free access in that Member his capacity as a worker. It reads as State to any paid employment of his follows: choice, after four years of legal employ- ment.'

8. Article 7 of Decision No 1/80, which 'Subject to Article 7 on free access to deals with members of the family of a employment for members of his family, a Turkish worker, provides in its second paragraph that '[c]hildren of Turkish workers who have completed a course of 6 — Hereinafter 'Decision No 2/76'; see the third recital in the vocational training in the host country may preamble to Decision No 1/80. respond to any offer of employment there, 7 — Section 1 (Questions relating to employment and the free movement of workers) of Chapter II (Social provisions). irrespective of the length of time they have

12. Mr Kurz trained as a plumber, under 8 — See order for reference, pp. 10 and 18 of the English conditions set out in a contract dated translation.

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16. By decision of 18 August 1998, the — his natural father had left Germany competent national authorities rejected Mr for good when he began his voca- Kurz's application for a residence permit tional training; and ordered him to leave Germany. He was deported in January 1999.

— he had not completed his training in the host Member State because he did not pass the theoretical part 17. His appeal against the decision of of his examination. 18 August 1998 was dismissed by the Regierungspräsidium Karlsruhe by decision of 16 June 1999 on the following grounds:

18. Mr Kurz brought an action challenging that decision before the Verwaltungsgericht Karlsruhe.

(5) Is it compatible with Article 6 or the second paragraph of Article 7 of (2) Does a Turkish national who is the Decision [No 1/80] that, in a case child by birth of former Turkish where deportation has taken place, workers in the host country fulfil the residence authorisation must be re- requirements of the second paragraph fused, by virtue of the prohibitive effect of Article 7 of Decision [No 1/80] if he of Paragraph 8(2) of the Ausländerge- was adopted as an adult by German setz, until a time-limit has, upon appli- nationals with the effects of adoption cation, been placed on the effects of the of a minor and his kinship with his deportation?' natural parents has thereby ceased to exist? Is it sufficient in that respect that he was the child of Turkish workers at the time of his parents' legal employ- ment and at the start of his vocational training?

IV — Preliminary observations

(3) Does a Turkish national fulfil the requirements of the second paragraph 20. It is clear from the grounds of the order of Article 7 of Decision [No 1/80] if, for reference that the national court con- eight years after leaving the host siders that the decision refusing to issue Mr country together with his parents who Kurz a residence permit is in accordance at that time were leaving definitively, with German law. However, it wonders he re-entered the country (without his whether an outcome more favourable to parents) for the purpose of vocational Mr Kurz might not be found under training? Articles 6 and 7 of Decision No 1/80.

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21. It should be remembered that the Court provided, over more than four years with has consistently held that both Article 6(1) the same employer, services for which he and the second paragraph of Article 7 of has received remuneration, meets the con- Decision No 1/80 have direct effect in the ditions laid down in Article 6(1) of Member States of the Community, 9so that Decision No 1/80. nationals fulfilling the conditions laid down in those provisions may rely directly on the rights which they confer.

25. The question which arises in this case is whether an apprentice such as Mr Kurz can 23. In its first question the national court is be regarded as a worker. asking in essence whether Article 6(1) of Decision No 1/80 must be interpreted as meaning that a Turkish national who has been permitted to enter the territory of a Member State and then to reside there in order to pursue vocational training and 26. The Court has consistently inferred who, in the course of that training, has from the wording of Article 12 of the Agreement and Article 36 of the Additional Protocol as well as from the objective of 9— Sec, as regards Article 6(1) of Decision No 1/80, Case C-192/89 Sevince (1990) ECR 1-3461, paragraph 26, and, Decision No 1/80 that the principles as regards the second paragraph of Article 7 or that enshrined in Articles 48, 49 and 50 of the decision, Case C-355/93 Eroghi [1994] ECR 1-5113, para- graph 17. Treaty must be extended, so far as possible,

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to Turkish nationals who enjoy the rights in accordance with objective criteria which conferred by Decision No 1/80. 10 distinguish the employment relationship by reference to the rights and duties of the persons concerned. 14

27. In Case C-l/97 Birden, 11 the Court analysed for the first time in a distinct and autonomous way the concept of worker used in Article 6(1) of Decision No 1/80. It 30. The Court has clarified that definition held that, in order to determine its scope, in cases relating to activities which, as in reference should be made to the interpre- the present case, were pursued in the tation of the concept of worker within the context of vocational training. They are, meaning of Article 48 of the Treaty. 12 in particular, Case 66/85 Lawrie-Blum, 15 Case 197/86 Brown 16 and Case C-27/91 Le Manoir. 17 The Court was asked in those cases to determine whether nationals of a Member State who have been gainfully employed in another State of the Commu- nity as part of vocational training are to be regarded as workers within the meaning of 28. That concept has been considered in Article 48 of the Treaty. 18 many cases.

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under the direction of another person in 34. Any person, therefore, who in the return for which he receives remuner- course of training, whatever its legal con- ation. 19 text, pursues an activity which is effective and genuine for and under the direction of an employer and receives remuneration which can be perceived as the consideration for such work must be regarded as a worker within the meaning of Article 48 of the Treaty.

32. It has invariably dismissed objections based on the low productivity of the trainee or the small number of hours worked by him, the legal nature of the contract entered into with the employer or the origin of the 35. In the light of the principles set out funds from which his remuneration is paid. above, it should be considered whether Mr It has stated repeatedly that any person Kurz can be regarded as a worker. who pursues an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, meets the definition of a 'worker'. 20

42. As the Court held in Birden, that concept applies to 'all workers who have complied with the requirements laid down B — The concept of being duly registered by law and regulation in the Member State as belonging to the labour force of a concerned and are thus entitled to pursue Member State an occupation in its territory'. 25

39. In order to be duly registered as belonging to the labour force of a Member State two conditions must be met. Accord- 43. Unlike the Commission of the Euro- ing to settled case-law, 23 that concept pean Communities, I think that that inter- requires, first of all, that the legal relation- pretation of the concept of being duly ship of employment of the person con- registered as belonging to the labour force cerned be located within the territory of a of a Member State does not relate solely to Member State or retain a sufficiently close the circumstances in Birden, 26 and is not link with that territory. intended solely to preclude jobs sponsored by public funds from being excluded from the scope of the concept.

40. This condition is clearly met in the present case. Mr Kurz was recruited and carried out his apprenticeship in Germany 44. First, the very narrow reading of Birden and he was subject to the relevant national adopted by the Commission is inconsistent provisions of employment and social secur- with the grounds of that judgment. ity law. 24 25 — Paragraph 51. 26 — In that case, the Court had to decide whether a Turkish 23 — Bozkurt, cited above, paragraphs 22 and 23, Giinaydin, worker employed under a special support scheme of public cited above, paragraph 29, and Ertanir, cited above, utility work, subsidised from public funds and intended to paragraph 39. enable him to be covered by social security and improve his 24 — As Land Baden-Württemberg also states in its observations chances of finding other employment, is duly registered as (p. 2). belonging to the labour force of the Member State.

29 — Ibid., paragraph 53. The criterion of legality defined by the Court in that judgment corresponds, moreover, to that contained in a large number of association agreements between the European Communities and their Member States, of the one part, and non-member countries, of the other part, under which rights conferred in respect of the movement of workers arc subject to the condition that they should be 'legally employed' in the territory of a Member State. See, for example, the agreements entered into with 46. It explained that in view of that objec- the Republic of Hungary (OJ 1993 L 347, p. 2, Articles 37 and 38); the Republic of Poland (OJ 1993 L 348, p. 2, tive and the fact that Decision No 2/76 Article 37); Romania (OJ 1994 L 357, p. 2, Articles 38 refers only to legal employment, the con- and 39); the Republic of Bulgaria (OJ 1994 L 358, p. 3, Articles 38 and 39); the Slovak Republic (OJ 1994 L 359, cept of being duly registered as belonging p. 2, Articles 38 and 39); the Czech Republic (OJ 1994 L 360, p. 2, Articles 38 and 39); the Republic of Latvia to the labour force of a Member State, used (OJ 1998 L 26, p. 3, Articles 37 and 38); the Republic of Lithuania (OJ 1998 L 51, p. 3, Articles 37 and 38); the in Decision No 1/80 together with that of Republic of Estonia (OJ 1998 L 68, p. 3, Articles 36 and legal employment, cannot be interpreted as 37); the Republic of Tunisia (0J 1998 L 97, p. 2, Articles 64 and 66); the Republic of Slovenia (OJ 1999 further restricting the rights derived by L 51, p. 3, Articles 38 and 39); the Kingdom of Morocco (OJ 2000 L 70, p. 2, Articles 64 and 66); and the State of workers from Article 6(1) of Decision Israel (OJ 2000 L 147, p. 3, Article 64). No 1/80 on the ground that it sets out an 30 — [2000] ECR I-957. The Court held in paragraph 31 of the additional condition, different from the ludgment 'that, as is apparent from Ac case-law, the concept of being "duly registered as belonging to the condition that the person concerned be in labour force" referred to in Article 6(1) of Decision legal employment for a certain period. On No 1/80 must be regarded as applying to all workers who have complied with the conditions laid down by law the contrary, that newly-introduced con- and regulation in the host Member State and arc thus cntitlcdto pursue an occupation in its territory (Birden, cept merely clarifies the requirement of the cited above, paragraph 51). 31 — That case concerned whether a Turkish national who, after being in legal employment in a Member State for over four years, was detained pending trial and ultimately sentenced to a suspended term of imprisonment, continued to be duly 27 — Birden, paragraphs 47 to 50. registered as belonging to the labour force during his 28 — Ibid., paragraph 52, and the case-law cited. detention.

49. According to the interpretation given by the Court in Birden and Nazli, an apprentice such as Mr Kurz, who has complied with the law of the host Member State regarding entry into and residence in its territory and its employment law, must be regarded as being duly registered as 52. The Court ruled that Article 6(1) of belonging to the labour force of that State. Decision No 1/80 is to be interpreted as meaning that a Turkish national who has been lawfully employed in a Member State for an uninterrupted period of more than three years in a genuine and effective activity for the same employer and whose

person. They submit that under that type of employed within the meaning of that contract the person concerned does not provision. 34 pursue a genuine and effective economic activity and his remuneration does not constitute consideration for his services 34 — The first sentence of paragraph 1 of the operative part. In his Opinion in that case, Advocate General Elmer sug- but a training allowance. They infer from gested that a distinction should be drawn between work this that an apprentice is not duly registered and training. He considered that the concept of being duly registered as belonging to the labour force of a Member as belonging to the labour force and rely on State covers work which includes elements of training but not work performed in the context of a training course in Giinaydin in support of their view. the strict sense. He mentioned as an example of the latter type of situation a period of work experience in the course of formal training 'which also, and perhaps primarily, includes educational (theoretical) components outside the workplace of the person concerned' (point 22).

view, that the worker i nquestion be employed or available however, that 'the answer to the first question must for employment, and that he have completed the appli- therefore be that Article 6(1) of Decision No 1/80 is to be cable formalities required by national law' (point 29). interpreted as meaning that a Turkish national who is in paid employment under normal conditions and in receipt 33 — The Advocate General stated that '[t]o be duly registered of normal pay with an employer in a Member State and as belonging to the labour force, it is therefore necessary, who is not subject to any special rule of employment as an first, to have an undisputed right of residence' and '[w]hat apprentice or under a similar scheme must be regarded as matters, therefore, is that the worker's position should be being employed as a duly registered member of the labour "in order" as regards the laws of the host Member State' force of the Member State concerned .

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53. In Günaydin the Court made being 55.1 consider that that narrow interpre- duly registered as belonging to the labour tation of the concept of being duly regis- force subject to two conditions. First, it tered as belonging to the labour force of a ascertained whether the legal relationship Member State cannot be accepted in the of employment of the person concerned present case for two reasons. could be located within the territory of a Member State or retained a link with that territory. 35 It stated, second, that that employment relationship must have certain features corresponding to those of the concept of worker under Community law, but in a more restrictive sense. It considered 56. First, it was clearly rejected in Birden that it should be 'ascertained whether the and Nazli. worker is bound by an employment rela- tionship covering a genuine and effective economic activity pursued for the benefit and under the direction of another person for remuneration'. 36 It added that that condition was not met by a Turkish national who had been permitted to enter 57. Second, inasmuch as that interpretation and reside in a Member State only in order means that an apprentice like Mr Kurz to follow 'specific vocational training, in cannot be duly registered as belonging to particular in the context of a contract of the labour force of a Member State, it is, in apprenticeship'. 37 my view, contrary to the objective and scheme of Decision No 1/80.

59. The argument put forward by the cerned, legal employment is in itself a Commission that training contracts such particularly important factor for integrat- as that of the plaintiff in the main proceed- ing Turkish workers within Member States. ings come under development policy does In addition, continuity of the employment not affect that analysis. While the Agree- relationship with the same employer is ment states in its preamble that the parties regarded as a factor which both strengthens are resolved to ensure a continuous a worker's integration and shows his improvement in living conditions in Tur- capacity to integrate. key, such a development policy can be implemented only in accordance with the other objectives and provisions of the Agreement, in particular Article 12, under which the parties agreed to secure progress- ively freedom of movement for workers 62. In the light of those considerations, I between them. think that there is no justification for distinguishing between work carried out in the course of an apprenticeship and that carried out as a trainee or worker. An apprentice who, as in the present case, has pursued a genuine and effective activity in the service of the same employer for an 60. It is also clear from the scheme of uninterrupted period of four years in con- Article 6(1) of Decision No 1/80 that sideration for which he has received remun- access by Turkish nationals to the labour eration is, to my mind, just as integrated as market of the host Member State is granted a worker who has worked for the same and extended gradually on the basis of two employer for an equivalent period. criteria, work and time. The authors of that decision thus considered that legal employ- ment in the service of the same employer enables a Turkish national to be sufficiently integrated to be entitled, after one year, to the renewal of his permit to work for the 63. It remains to be determined whether same employer, if a job is available, and, Mr Kurz was in legal employment within after three years, to access to any job in the the meaning of Article 6(1) of Decision same occupation, subject to the priority to No 1/80. be given to workers of Member States. After four years of legal employment a Turkish worker may engage in any paid employment of his choice in the host Member State.

66. In the present case Mr Kurz's right to reside in the host Member State cannot be regarded as insecure within the meaning of 68. As regards the temporary nature of the 40 — See point 24 of his Opinion in Birden. residence authorisation of the person con- 41 — In Case C-285/95 Kol [1997] ECR I-3069, at paragraph cerned, it is clear from case-law that rights 27, the Court held that periods in which a Turkish national conferred on Turkish workers by has been employed under a residence permit obtained only by means of fraudulent conduct which has led to a conviction arc not based on a stable situation and such Article 6(1) of Decision No 1/80 are employment cannot be regarded as having been secure in accorded irrespective of whether or not view of the fact that, during the periods in question, the person concerned was not legally entitled to a residence the authorities of the host Member State permit. In that case I think that the person concerned cannot claim to be duly registered as belonging to the have issued a specific administrative docu- labour force of a Member State cither. ment, such as a work permit or residence 42 — In Sevince, cited above, at paragraph 31, the Court held permit. 43 The Court has held that if the that a Turkish worker is not in a stable and secure situation on the labour market of a Member State during a fact that a Member State makes the rights period in which he benefits from the suspensory effect of a Turkish national as regards residence deriving from an appeal against a decision refusing him a right ofrcsidence and is authorised, on a provisional basis or work subject to certain conditions were pending the outcome of the dispute, to reside and be employed in the Member State in question. Similarly, in sufficient to raise doubts as to whether the Case C-237/91 Kus [1992] ECR I-6781, at paragraph 13. employment of the person concerned is in the Court held that this stability condition is not fulfilled by a worker who was granted a right of residence only by fact legal, Member States would be able the operation of national legislation permitting residence in the host country pending the completion of the procedure for the grant of a residence permit, on the ground that the person concerned obtained the right to remain and work in that country only on a provisional 43 — Günaydin, paragraph 49, and Birden, paragraph 65 and basis pending a final decision on his right of residence. the case-law cited.

72. The second paragraph of Article 7 of Decision No 1/80 could not confer on Mr Kurz any more rights than the third indent of Article 6(1) of that decision. In view of the answer that I have suggested in 71. For all those reasons, I propose that the point 71 of this Opinion, the questions Court's answer to the first question should relating to the second paragraph of Article 7 of Decision No 1/80 are redun- dant as regards the main proceedings. I 44 — Giinaydin, paragraph SO, and Birden, paragraph 64. consider that there is therefore no need to 45 — Kus, cited above, paragraphs 22 and 23, Giinaydin, paragraphs 52 and 53, and Birden, paragraphs 43 and 65. answer them.

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V I I— Fifth question 75. I consider, without any hesitation, that in the present circumstances that question should be answered in the affirmative.

73. In its order for reference, the Verwal- tungsgericht Karlsruhe states that if Mr Kurz is the holder of a right under 76. Decision No 1/80 admittedly does not Article 6(1) of Decision No 1/80, Para- encroach upon the competence of the graph 8(2) of the Ausländergesetz (Law Member States to regulate the entry of on Aliens) precludes the issue of a residence Turkish nationals into their territories. permit to him until a time-limit has been placed on his deportation. Paragraph 8(2) of the Ausländergesetz provides:

79. It seems to me that that case-law must be applied in the present case. To concede that Member States may make the grant of a residence authorisation to a Turkish 81. It is also clear from the case-law that national subject to conditions or restric- every court of a Member State must apply tions where he has been deported in breach Community law in its entirety and protect of the rights conferred on him by the rights which Community law confers Article 6(1) of Decision No 1/80 clearly on individuals, setting aside any provision amounts to depriving the right to join the of national law which may conflict with labour market and to work as an employed it. 48 person, provided for in that article, of all effect.

82. Itherefore suggest that the answer to 80. Furthermore, while Article 14 of the fifth question should be that where a Decision No 1/80 states that the provisions Turkish national has been deported in relating to employment and the free move- breach of the rights which Article 6(1) of ment of workers are to be applied subject Decision No 1/80 conferred on him, that to limitations justified on grounds of public provision precludes the application of policy, public security or public health, the national legislation providing that issue of Court held in Nazli, at paragraph 61, that a a residence authorisation must be refused Turkish national can be denied the rights until a time-limit has, upon application, which he derives directly from Decision been placed on the effects of the deport- No 1/80 only if that measure is justified ation.

(2) Where a Turkish national has been deported in breach of the rights which Article 6(1) of Decision No 1/80 conferred on him, that provision precludes the application of national legislation providing that issue of a residence authorisation must be refused until a time-limit has, upon application, been placed on the effects of the deportation.

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