62005CC0004_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I – Introduction
1. In this case the Verwaltungsgericht (Administrative Court) Aachen has asked three questions on the interpretation of Decision No 1/80 of the EEC-Turkey Association Council (2) (hereinafter ‘Decision No 1/80’). More specifically, the referring court wishes to establish whether a Turkish worker duly registered as belonging to the labour force of a Member State and in possession of a work permit of unlimited duration has a right to the extension of his residence permit under Article 10 of Decision No 1/80.
II – Legislative background
A – The EEC-Turkey Association Agreement
2. The aim of the Association Agreement, according to Article 2(1) thereof, is to promote the continuous and balanced strengthening of trade and economic relations between the Parties, including relations regarding workers, by progressively securing freedom of movement for workers between them (Article 12) and by abolishing restrictions on freedom of establishment (Article 13) and on freedom to provide services (Article 14) in order to improve the standard of living of the Turkish people and to facilitate the accession of the Republic of Turkey to the Community at a later date (fourth recital of the preamble and Article 28).
3. With this in view, the Association Agreement provides for a preparatory stage to enable the Republic of Turkey to strengthen its economy with aid from the Community (Article 3), a transitional stage, during which it is to be ensured that a customs union is progressively established and the economic policies of Turkey and the Community are more closely aligned (Article 4), and a final stage, which is to be based on the customs union and to entail closer coordination of the economic policies of the Contracting Parties (Article 5).
4. Article 6 of the Association Agreement reads: ‘To ensure the implementation and the progressive development of the Association, the Contracting Parties shall meet in a Council of Association which shall act within the powers conferred upon it by this Agreement.’ The Association Council thus has the power to take decisions to achieve the objectives referred to in the Agreement and in the cases provided for in the Agreement (Article 22(1) of the Association Agreement). Each of the Parties is required to take the measures necessary to implement the decisions taken.
5. Article 9 of the Association agreement reads as follows: ‘The Contracting Parties recognise that within the scope of this Agreement and without prejudice to any special provisions which may be laid down pursuant to Article 8, any discrimination on grounds of nationality shall be prohibited in accordance with the principle laid down in Article 7 of the Treaty establishing the Community.’
6.	Article 12 of the Association Agreement stipulates: ‘The Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers between them.’
7.	The Additional Protocol signed in Brussels on 23 November 1970 and concluded, approved and ratified on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (3) (hereinafter ‘Additional Protocol’) lays down in Article 1 the conditions, arrangements and timetables for implementing the transitional stage referred to in Article 4 of the Association Agreement. Pursuant to Article 62 of the Additional Protocol, the latter forms an integral part of the Agreement.
8.	The Additional Protocol contains a Title II, headed ‘Movement of persons and services’, Chapter I of which is devoted to workers.
9.	Article 36 thereof sets the timetable for the progressive achievement of the free movement of workers between the Member States of the Community and Turkey in accordance with the principles set out in Article 12 of the Association Agreement and stipulates that the Association Council is to decide on the rules necessary to that end.
B – Decision No 1/80
10.	The Council of Association adopted Decision No 1/80 on 19 September 1980. That decision has, strange to say, never been published in the Official Journal. (4) The third recital of the preamble to Decision No 1/80 states that ‘in the social field, … the above considerations make it necessary to improve the treatment accorded workers and members of their families in relation to the arrangements introduced by Decision No 2/76 of the Association Council’ of 20 December 1976.
11.	Article 6(1) and (2) of Decision No 1/80 reads as follows:
‘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:
– 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 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 Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment services of that State, for the same occupation;
– shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment.
2. Annual holidays and absences for reasons of maternity or an accident at work or short periods of sickness shall be treated as periods of legal employment. Periods of involuntary unemployment duly certified by the relevant authorities and long absences on account of sickness shall not be treated as periods of legal employment, but shall not affect rights acquired as the result of the preceding period of employment.’
12.	Article 10(1) of the Decision stipulates: ‘The Member States of the Community shall as regards remuneration and other conditions of work grant Turkish workers duly registered as belonging to their labour forces treatment involving no discrimination on the basis of nationality between them and Community workers.’
C – National legislation
13.	Article 284 of the Sozialgesetzbuch, Drittes Buch (Code of Social Law, Third Book) was in force with the following wording until 31 December 2004. Article 284(5) provides that a work permit may be granted only if the alien has residence authorisation under Paragraph 5 of the Ausländergesetz, unless otherwise provided by regulation and unless the pursuit of employment is precluded by a condition provided under the legislation relating to aliens.
III – Facts of the case
A – The facts in the main action
14.	The claimant, who is a Turkish national, entered the Federal Republic of Germany on 13 September 1991 and lodged several unsuccessful applications for asylum.
15.	Following his marriage to a German national on 7 March 1997 the Oberbürgermeister of the City of Aachen (hereinafter ‘the defendant’) granted him a residence permit on 29 July 1997 that was initially for a limited period until 29 July 1998. On 31 July 1997 the Arbeitsamt Aachen granted the claimant a work permit of unlimited duration for any kind of occupation.
16.	The couple have been permanently separated since 8 July 1998 and the marriage was dissolved in the year 2002.
17.	On 6 January 1999 the defendant initially extended the claimant’s residence permit until 6 December 1999 and then again until 9 October 2001, indicating that the claimant could claim a right under the first indent of Article 6(1) of Decision No 1/80. The residence permit contained the rider: ‘self-employed occupations and comparable non-self-employed occupations not permitted. Only permitted to work under the work permit as a waiter in the Café Marmara in Aachen’.
18.	On 25 September 2001 the claimant applied for an extension to his residence permit.
19.	From 1 October 1997 to 31 March 2000 H. Güzeli worked intermittently in the Café Marmara. On 10 April 2000 Güzeli then changed employer. From 10 April 2000 to 14 December 2000 and from 1 March 2001 to 30 November 2001 the claimant was employed as a seasonal worker by the Aachener Printen- und Schokoladenfabrik Henry Lambertz GmbH & Co KG (hereinafter ‘Lambertz’). In the interim periods the claimant received benefit from the Arbeitsamt Aachen.
20.	On 27 June 2002 a fine of 45 daily‑rate penalties was imposed on the claimant on the ground that by working for Lambertz he had breached the condition attached to his residence permit.
21.	On 2 January 2003 the defendant dismissed the claimant’s application for an extension to his residence permit. On 21 January 2003 the claimant lodged an objection to that order, arguing that in his case he should be considered for an extension to the residence permit that was not marriage-related.
22.	On 21 March 2003 the claimant asked the Verwaltungsgericht Aachen to order that his objection should have suspensory effect. That application was allowed in an order of 14 July 2003. On the defendant’s appeal the Oberverwaltungsgericht für das Land Nordrhein-Westfalen in an order of 30 March 2004 dismissed the claimant’s application for suspensory effect to be ordered. The Bezirksregierung Köln dismissed the claimant’s objection in its notice of 20 July 2004.
23.	On 9 August 2004 the claimant brought an action before the Verwaltungsgericht Aachen, which referred three questions for a preliminary ruling by order of 29 December 2004.
B – The questions referred for a preliminary ruling
24.	On 29 December 2004 the referring court stayed consideration of the case and referred the following questions for a preliminary ruling:
‘(1) Does the prohibition of discrimination in Article 10(1) of Decision No 1/80 preclude a Member State from refusing to allow a Turkish worker in the position of the claimant, who was duly registered as belonging to the labour force of the Member State and had a right of unlimited duration in relation to employment on the date of expiry of the national residence permit originally granted to him, to continue to reside there for the duration of his employment?
Is it material in this context whether the work permit granted to the Turkish migrant worker
– was granted under national law without any time-limit,
– was granted under national law subject to the continuation of the original residence permit but does not automatically expire when residence authorisation comes to an end and remains valid until such time as the alien is no longer entitled to stay in the Member State on even a temporary basis?
(2) Is the Member State permitted, having regard to Article 10(1) of Decision No 1/80, to refuse to allow a Turkish worker residence if he is employed as a seasonal worker after the expiry date of the latest residence permit granted to him – that is to say, if he does not work in the periods between employment?
(3) Does a change in the legal form of national law governing permission to work that takes place after the expiry date of the original residence permit have any effect on the prohibition on refusal of further residence consequent on Article 10(1) of Decision No 1/80?’
C – The views of the referring court
25.	In its explanation of the questions referred for a preliminary ruling the referring court states that the claimant cannot derive any rights to the extension of his residence permit from Article 6 of Decision No 1/80 since the conditions laid down in that provision are not satisfied in this case. On the other hand, such a right might well be derived from Article 10(1) of Decision No 1/80. The national court infers this from the judgment in Eddline El-Yassini, (5) in which the Court was asked questions about the effect and interpretation of the first paragraph of Article 40 of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco.
26.	According to the referring court, the Court’s interpretation of Article 40 should also apply to Article 10 of Decision No 1/80 since, given their almost identical wording, those provisions serve the same purpose. (6) Both provisions prohibit Member States from discriminating on grounds of nationality against Turkish or Moroccan workers duly registered as belonging to their labour force as regards remuneration and working conditions. As the wording of the two provisions matched, an extrapolation of the Eddline El-Yassini case was logical.
27.	According to the Court’s interpretation of Article 40 in the Eddline El-Yassini judgment, the claimant was entitled, under Article 10 of Decision No 1/80, to the extension of his residence permit if the latter permit was for a shorter period than the right actually to engage in employment that was afforded by a work permit duly granted by the competent national authority.
D – The proceedings before the Court
28.	In this case written comments have been submitted by the claimant in the main action, the German Government, the Slovak Government and the Commission. The claimant explained his position at the hearing of 12 January 2006, as did the German Government and the Commission. The claimant and the Commission dispute, firstly, the referring court’s contention that Güzeli has not satisfied the conditions laid down in Article 6 for obtaining an extension of his residence permit. Alternatively, the claimant, the Commission and the Slovak Government maintain that a right to the extension of a residence permit can be inferred from Article 10 of Decision No 1/80. The German Government, on the other hand, takes the view that that right cannot be derived from Article 10 of Decision No 1/80.
IV – Analysis
A – Preliminary comments
29.	As stated above, the claimant and the Commission contested, during the written proceedings, the referring court’s view that Güzeli has not satisfied the conditions laid down in Article 6 of Decision No 1/80. Pursuant to that provision, Turkish migrant workers may claim, depending on the duration of their legal employment, precisely defined rights, which are designed gradually to integrate them into the labour market of the host Member State.
30.	Both Article 6 and Article 10 of Decision No 1/80 grant Turkish migrant workers certain rights on the labour market, provided that they are legally resident and employed in a Member State under its immigration and employment legislation. Those provisions are complementary. Article 6 gives a Turkish worker, under certain conditions, a right to the extension of his work permit, and Article 10 stipulates that he must not be discriminated against during his employment as regards remuneration and other conditions of work.
31.	Before Article 10 of Decision No 1/80 is examined further, it must be considered whether the claimant may claim certain rights by virtue of Article 6 of Decision No 1/80.
B – Article 6 of Decision No 1/80
32.	The claimant argues that he derives rights from the right of free access to any paid employment of his choice under the third indent of Article 6(1) of Decision No 1/80, since the periods of employment preceding his application, when added together, amount to more than four years.
33.	The Commission contends that, as the claimant was legally employed by Lambertz within the meaning of the first indent of Article 6(1) of Decision No 1/80 from 10 April 2000 until the date on which his residence permit expired – 9 October 2001 – he can rely on rights granted by that provision since he satisfies all the conditions laid down in that article.
34.	It must first be pointed out that Decision No 1/80 does not encroach upon the competence retained by the Member States to regulate both the entry into their territories of Turkish nationals and the conditions under which they may take up their first employment. (7) The right of access, employment and residence is governed by national law, the Member States being able to make their own choices when it comes to recruiting Turkish workers to fill vacancies on their own markets.
35.	A Turkish worker acquires rights under Decision No 1/80 only after being continuously employed in the territory of a Member State for one year. The granting of rights on the labour market is governed by Article 6 of Decision No 1/80. A Turkish worker who satisfies the conditions laid down in the first, second or third indent of Article 6(1) may rely directly on those provisions to obtain an extension not only of his work permit but also of his residence permit. (8)
36.	Turkish migrants must satisfy three conditions to derive rights from Article 6(1) of the Decision. First, the Turkish national must be a ‘worker’. Second, he must be ‘duly registered as belonging to the labour force of a Member State’. Third, he must be legally employed for one of the three possible periods, each of which grants certain rights to further employment.
37.	As regards the periods of employment, the first indent of Article 6(1) stipulates that a Turkish worker is entitled, after one year’s legal employment, to continue working for the same employer. After three years of legal employment and subject to the priority to be given to workers of the Member States, he is entitled to respond to another offer of employment, with an employer of his choice, for the same occupation (second indent). After four years of legal employment he has the unconditional right to seek and take up any paid employment freely chosen by him (third indent). (9)
38.	A Turkish worker who has not yet satisfied the conditions laid down in the third indent of Article 6(1) of Decision No 1/80 should undertake legal employment for one, three and four years respectively. In principle, that period may not be interrupted. (10) However, Article 6(2) of Decision No 1/80 states a number of legitimate reasons for interrupting employment.
39.	Article 6(2) of Decision No 1/80 distinguishes three categories of interruption, with which different consequences are associated. The first category comprises situations in which the worker keeps his job in the undertaking; such periods are treated as periods of legal employment. The second category relates to situations in which the worker no longer performs any work through no fault of his own, but also without its being known when he will resume work. Such interruptions of work are not treated as periods of legal employment, nor do they result in the worker being excluded from the legal labour market. In such cases the worker retains the right of access to employment which he acquired as a result of the period of employment before he had to leave the labour market against his will.
40.	The information submitted to the Court by the referring court shows that Güzeli does not derive any rights from the second indent of Article 6(1) of Decision No 1/80 since he changed his employer in April 2000 and did not therefore work for the same employer for a period of three years. According to the second indent of Article 6(1), it is only after three years of legal employment in the Member State concerned that a Turkish worker is entitled to take up work with a different employer, on condition that the employer is engaged in the same business as the previous employer and respects the priority to be given to workers of the Member States. (11)
41.	Nor, on the date on which the residence permit of the Turkish worker in question expired, had he satisfied the conditions referred to in the first indent of Article 6(1). Although the interruption of Güzeli’s employment can be regarded as a legitimate ground for interrupting periods of employment within the meaning of the second sentence of Article 6(2), Güzeli had not accumulated any rights on the basis of previous, duly completed periods of employment.
42.	It follows from the above that the claimant does not satisfy the conditions laid down in the first, second or third indent of Article 6(1) of Decision No 1/80 for the extension of his residence permit.
43.	The question which now arises is whether the refusal to extend the residence permit of a Turkish worker who is duly registered as belonging to the labour force of a Member State, does not derive any rights from Article 6 and is in possession of a work permit of unlimited duration can be regarded as discrimination on the basis of nationality under Article 10.
C – Article 10 of Decision No 1/80
44.	In posing the three questions referred for a preliminary ruling, which can be considered together, the referring court essentially wishes to establish whether a Turkish national who has been legally employed in a Member State and applies for the extension of his residence permit in that Member State can derive rights from the prohibition of discrimination laid down in Article 10 of Decision No 1/80.
45.	Article 10(1) of Decision No 1/80 prohibits, as regards remuneration and other conditions of work, discrimination on the basis of nationality between Community workers and Turkish nationals who are duly registered as belonging to the labour force of the host Member State.
46.	The claimant, the Slovak Government and the Commission state unnecessarily that Article 10(1) of Decision No 1/80 must be interpreted as meaning that rights to the extension of residence permits ensue from that provision. They submit that that interpretation is endorsed by the analogous provision in the first paragraph of Article 40 of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, which pursues the same object as Article 10. They refer in this context to the interpretation which the Court gave in the Eddline El-Yassini judgment (12) to the first paragraph of Article 40 of the Cooperation Agreement.
47.	In the Eddline El-Yassini case the dispute before the national court concerned a Moroccan national who wanted to continue working in the Member State concerned after his residence permit had expired. The Court declared that a Member State must not refuse to extend a residence permit if:
‘… the host Member State had granted the Moroccan migrant worker specific rights in relation to employment which were more extensive than the rights of residence conferred on him by that State.
That would be so if the host Member State had granted the person concerned a residence permit for a period shorter than the duration of his work permit and if, before the work permit expired, it then refused to extend the residence permit without justifying its refusal on grounds relating to the protection of a legitimate national interest, such as public policy, public security or public health.’ (13)
48.	The German Government argues that the refusal to extend Güzeli’s residence permit cannot be regarded as discrimination on the basis of nationality as regards conditions of work, within the meaning of Article 10 of Decision No 1/80. It further submits that the prohibition of discrimination on grounds of nationality laid down in Article 10 applies only to the employment relationship of a Turkish national in the host Member State. Article 10 confers on a Turkish national the right to equal treatment as regards working conditions and remuneration for as long as he has a residence permit in the host Member State.
49.	The German Government submits that Article 10 cannot be interpreted as meaning that it confers on a Turkish migrant worker the right to have his residence permit extended even if he has a work permit of unlimited duration. The aim of Article 10 cannot be to protect the rights of Turkish nationals in the area of employment, since those rights are already fully laid down in Article 6 of Decision No 1/80.
50.	The question is whether the refusal to extend the residence permit of a Turkish worker duly registered as belonging to the labour force of a Member State and in possession of a work permit of unlimited duration can be regarded as discrimination on grounds of nationality as regards conditions of work.
51.	For the answer to the question raised the wording of Article 10 and the general scheme of Decision No 1/80 must be considered.
52.	On a literal interpretation, the principle of equality laid down in Article 10 of Decision No 1/80 with respect to Turkish migrant workers employed in the territory of a Member State and Community workers is limited to remuneration and other conditions of work. The wording of that provision therefore gives no cause to take so broad a view of the prohibition of discrimination that it can be invoked against the refusal to extend a residence permit.
53.	Viewed from the angle of the general scheme of Decision No 1/80, it must be pointed out that Decision No 1/80, unlike the EEC-Morocco Cooperation Agreement, contains an explicit provision, as well as a prohibition of discrimination as regards conditions of work. A Turkish worker can rely directly on the first, second or third indent of Article 6(1) of Decision No 1/80 for the extension not only of his work permit but also of his residence permit, since the right of residence is indispensable to access to and engagement in paid employment. (14)
54.	That provision rather than Article 10 of Decision 1/80 is therefore applicable in the present case. The fact that a Turkish worker does not satisfy the conditions laid down in Article 6 cannot result in his being able to acquire a right to the extension of his residence permit by relying on the principle of non-discrimination on the grounds of nationality as regards conditions of work. That would undermine the purpose of Article 6.
55.	In connection with this difference in the general scheme of the two agreements, it is wrong to interpret Article 10 of Decision No 1/80 by analogy with the first paragraph of Article 40 of the EEC-Morocco Cooperation Agreement. That agreement does not contain a provision equivalent or similar to Article 6 of Decision No 1/80 under which Turkish migrant workers can claim, depending on the duration of their legal paid employment, precisely defined rights designed to integrate them gradually into the Member State’s labour market.
56.	It follows from the above that the refusal to extend the residence permit of a Turkish worker duly registered as belonging to the labour market of a Member State and in possession of a work permit of unlimited duration cannot be regarded as discrimination on the grounds of nationality as regards conditions of work.
V – Conclusion
57.	In view of the foregoing I propose that the Court should answer the questions referred by the Verwaltungsgericht Aachen as follows:
Article 10 of Decision No 1/80 of the EEC/Turkey Association Council of 19 September 1980 must be interpreted as meaning that the refusal to extend the residence permit of a Turkish worker duly registered as belonging to the labour force of a Member State and in possession of a work permit of unlimited duration cannot be regarded as discrimination on grounds of nationality as regards the conditions of employment.
(1) .
(2)
–	Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council set up under the Agreement establishing an Association between the European Economic Community and Turkey.
(3)
–	OJ 1972 L 293, p. 1.
(4)
–	This omission in implementation has not caused the Court to question the legal force of the substance of the decision.
(5)  –	Case C-416/96 [1999] ECR I-1209, paragraph 27.
(6)  –	Article 40, which forms part of Title III of the Agreement concerning cooperation in the field of labour, reads: ‘The treatment accorded by each Member State to workers of Moroccan nationality employed in its territory shall be free from any discrimination based on nationality, as regards working conditions or remuneration, in relation to its own nationals. …’
(7)  –	Case C-237/91 Kus [1992] ECR I-6781, paragraph 25, Case C-36/96 Günaydin
[1997] ECR I-5143, paragraph 23, and Case C-98/96 Ertanir [1997] ECR I-5179, paragraph 23.
(8)  –	See inter alia Case C-192/89 Sevince [1990] ECR I-3461, paragraphs 29 and 31, and Kus, paragraph 33.
(9)  –	See Case C-355/93 Eroglu [1994] ECR I-5113, paragraph 12, Case C-171/95 Tetik [1997] ECR I-329, paragraph 26, and Case C-340/97 Nazli
[2000] ECR I-957, paragraph 27.
(10)  –	Case C-383/03 Dogan
[2005] ECR I-6237.
(11)  –	Case C-386/95 Eker [1997] ECR I‑2697, paragraph 23.
(12)  –	Paragraph 27.
(13)  –	Eddline El-Yassini, paragraphs 64 and 65.
(14)  –	Kus, paragraph 33.