Judgment — ECLI:EU:C:2010:57
Date: 2010-02-04
Language of the case: German
Court formation: Second Chamber
Subject matter: Association Agreement;External relations;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. International agreements – EEC-Turkey Association Agreement – Freedom of movement for persons – Workers – Right of Turkish nationals to extension of a residence permit (Decision No 1/80 of the EEC-Turkey Association Council, Art. 6(1)) 2. International agreements – EEC-Turkey Association Agreement – Freedom of movement for persons – Workers – Access by Turkish nationals to employment of their choice in one of the Member States and concomitant right of residence (Decision No 1/80 of the EEC-Turkey Association Council, Art. 6(1)) 1. A Turkish national who works for only a particularly limited number of hours for and under the instruction of an employer in return for remuneration, which covers only partially the minimum necessary for her subsistence, is a worker within the meaning of Article 6(1) of Decision No 1/80 of the EEC-Turkey Association Council, provided that her employment is real and genuine. It is for the national court to carry out the examinations of fact necessary to determine whether that is so in the case pending before it. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he or she receives remuneration. In that regard, although the fact that a person works for only a very limited number of hours in the context of an employment relationship may be an indication that the activities performed are marginal and ancillary, the fact remains that, independently of the limited amount of the remuneration for and the number of hours of the activity in question, the possibility cannot be ruled out that, following an overall assessment of the employment relationship in question, that activity may be considered by the national authorities to be real and genuine, thereby allowing its holder to be granted the status of ‘worker’. The overall assessment of the employment relationship of the person concerned makes it necessary to take into account factors relating not only to the number of working hours and the level of remuneration but also to the right to 28 days of paid leave, to the continued payment of wages in the event of sickness, and to a contract of employment which is subject to a collective agreement, in conjunction with the extension of that person’s contractual relationship with the same undertaking. Those factors are capable of constituting an indication that the professional activity is real and genuine. (see paras 19, 26-28, 33, operative part 1) 2. A Turkish worker, within the meaning of Article 6(1) of Decision No 1/80 of the EEC-Turkey Association Council, may rely on the right to free movement which he derives from the Agreement between the EEC and Turkey, even if the purpose for which he entered the host Member State no longer exists. Where such a worker satisfies the conditions set out in Article 6(1) of that decision, his right of residence in the host Member State cannot be made subject to additional conditions as to the existence of interests capable of justifying residence or as to the nature of the employment. (see para. 44, operative part 2)