Opinion of the Advocate-General



Opinion of the Advocate-General

I – Introduction

1. By this reference for a preliminary ruling, which it made by a decision of 6 October 2008, the Oberverwaltungsgericht Berlin‑Brandenburg (Higher Administrative Court of Berlin‑Brandenburg) (Germany) requests the interpretation of the second paragraph of Article 7 of Decision No 1/80 of the Association Council (2) of 19 September 1980 on the development of the Association (‘Decision No 1/80’). (3) The question was raised in the context of an action brought by Ms Ümit Bekleyen, a Turkish national, against the decision of Land Berlin to refuse to grant her a residence permit in accordance with the second paragraph of Article 7 of Decision No 1/80.

2. These proceedings provide the Court with the opportunity to clarify the nature of the rights conferred by that provision on the child of a Turkish worker and to specify the conditions for the acquisition of such rights.

II – Legal context

3. Decision No 1/80 was adopted pursuant to Article 36 of the Additional Protocol (4) to the Association Agreement. That article provides that freedom of movement for workers between the Member States of the Community and Turkey will be secured progressively, in accordance with the principles laid down in Article 12 of the Association Agreement, under which the Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the Community.

4. Headed ‘Social provisions’, Chapter II of Decision No 1/80 deals, in Section 1, with various ‘Questions relating to employment and the free movement of workers’, including that of access for Turkish nationals to the employment market of a Member State. Two provisions in particular may confer such a right on them, either in their capacity as workers duly registered as belonging to the labour force (Article 6) or in their capacity as members of the family of a Turkish worker satisfying such a condition (Article 7).

5. Article 6 of Decision No 1/80, which confers a right of access to employment on a Turkish worker in progressive stages depending on the length of time he has been in legal employment in the Member State, is worded 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.

…’

6. Article 7 of Decision No 1/80, for its part, distinguishes between members of a worker’s family who have been authorised to join him in the host Member State and who have been legally resident there for a specified period, on the one hand (first paragraph), and the children of such a worker who have completed a course of vocational training in the Member State concerned, on the other (second paragraph). Article 7 provides as follows:

‘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 – 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 enjoy free access to any paid employment of their choice provided they have been legally resident there for at least five years.

Children of Turkish workers who have completed a course of vocational training in the host country may respond to any offer of employment there, irrespective of the length of time they have been resident in that Member State, provided one of their parents has been legally employed in the Member State concerned for at least three years.’

III – Main proceedings and question referred

7. Ms Bekleyen, who was born in Berlin in 1975, lived with her family in Germany until she reached the age of 14. Her parents, Turkish nationals, had both been employed in the Federal Republic of Germany since 1971. In 1989, Ms Bekleyen returned with her whole family to Turkey, where she completed her secondary education as well as a course of study in landscape architecture.

8. In January 1999, with Land Berlin’s approval, Ms Bekleyen returned to the Federal Republic of Germany without her family, for the purpose of continuing her higher education. In March 1999, she received an authorisation to stay, which was renewed several times, the last time in the form of a residence permit valid until 31 December 2005. In the summer of 2005, she completed her studies in landscape planning at the Technische Universität Berlin (Technical University of Berlin), graduating as a ‘graduate engineer’ (‘Diplom-Ingenieurin’).

9. On 19 December 2005, Ms Bekleyen applied for a residence permit on the basis of the second paragraph of Article 7 of Decision No 1/80, on the ground that she had completed her university studies in the Federal Republic of Germany. By decision of 21 September 2006, Land Berlin rejected the application on the ground that the conditions for a right of residence under the Association Agreement were not fulfilled. The respondent in the main proceedings maintains that the second paragraph of Article 7 of Decision No 1/80 requires a temporal link between the residence of the parents and that of the child, a condition which was not satisfied in this case. It submits that the wording and purpose of that provision of Decision No 1/80 presuppose, for the purpose of acquiring the right to employment and residence, that at least one parent be still present in the host Member State when the child commences his or her vocational training.

10. In May 2007, Ms Bekleyen was granted a temporary residence permit valid until 13 May 2009, pursuant to Article 6(1), first indent, of Decision No 1/80, in view of the fact that she was employed by a German company.

11. By an action for failure to act, initially brought in July 2006 and subsequently converted into an action against the decision of 21 September 2006, Ms Bekleyen sought confirmation of her right of residence pursuant to the second paragraph of Article 7 of Decision No 1/80.

12. The Verwaltungsgericht Berlin (Administrative Court, Berlin) dismissed that action by a judgment of 9 August 2007. That court stated that the action was indeed admissible since, despite the right of residence granted to Ms Bekleyen pursuant to Article 6(1) of Decision No 1/80, she had a legal interest in bringing proceedings. If she were granted the right to rely on the second paragraph of Article 7 of Decision No 1/80, she would enjoy free access to the labour market in the Federal Republic of Germany. However, the action was unfounded because Ms Bekleyen’s extended stay in Turkey had the effect that she lost her right to benefit from the preferential arrangements provided for in the second paragraph of Article 7 of Decision No 1/80.

13. Ms Bekleyen then brought an appeal before the referring court.

14. Taking the view that, in those circumstances, determination of the dispute required the interpretation of Community law, the Oberverwaltungsgericht Berlin‑Brandenburg decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is the second paragraph of Article 7 of Decision No 1/80 … to be interpreted as meaning that the right of access to the labour market and the corresponding right of residence following the completion of a vocational training course in the host Member State can also be invoked in a situation in which the child who was born in the host Member State, but afterwards returned with her family to the family’s country of origin, returns on her own to the relevant Member State after she has reached the age of majority in order to start a vocational training course, at a moment occurring 10 years after her parents, Turkish nationals who used to be employed in that Member State, had permanently left that Member State?’

IV – Analysis

15. The referring court is enquiring, in principle, whether the second paragraph of Article 7 of Decision No 1/80 is to be interpreted as meaning that the right of access to the labour market and the corresponding right of residence enjoyed by the child of a Turkish worker after completing vocational training in the host Member State may be relied on if the parent of the child concerned left the host Member State permanently before his child entered the territory and started her vocational training.

16. In order to be able to give a helpful answer to the question referred, the case‑law relating to the second paragraph of Article 7 of Decision No 1/80 must first of all be recalled.

17. First, it should be noted that the Court has already held that that provision has direct effect in the Member States, with the result that Turkish nationals fulfilling the conditions for its application may rely directly on the rights conferred on them by it. (5)

18. Secondly, it should be remembered out that the rights granted by the second paragraph of Article 7 to the child of a Turkish worker with regard to employment in the Member State concerned necessarily imply the existence of a concomitant right of residence for that child, without which the right of access to the employment market and actually to take up paid employment would be rendered totally ineffective. (6)

19. Thirdly, it is important to point out that the second paragraph of Article 7 of Decision No 1/80 cannot be interpreted as applying solely to the position of a person under the age of majority, who is the child of a Turkish worker who is or who was duly registered as belonging to the labour force of the host Member State, but also applies to the position of the child of such a worker who has reached the age of majority. (7)

20. In the context of the case‑law relating to the interpretation of the second paragraph of Decision No 1/80, the judgment in Akman , cited above, to which the referring court has expressly referred in the order for reference, occupies an important place.

21. In the case considered by that judgment, Mr Akman had been authorised in 1980 to enter the Federal Republic of Germany, where his father was legally employed, in order to study engineering. Having successfully completed his course of study in 1993, he applied for an unlimited residence permit. He was refused such a permit because his father had returned to Turkey in 1986.

22. In its judgment in Akman , the Court stated that the second paragraph of Article 7 makes the right which it confers on the child of a Turkish worker to respond to any offer of employment in the host Member State dependent on two conditions: firstly, that the child in question must have completed a course of vocational training in the Member State concerned and, secondly, that one of his or her parents must have been legally employed there for at least three years. (8)

23. Having held that the first condition, relating to the completion of a course of vocational training, had been fulfilled in the case in question, the Court devoted itself to examining the second condition, concerning the requirement that the parent must have been employed for three years.

24. With regard to that second condition, the Court held that the second paragraph of Article 7 of Decision No 1/80 cannot be interpreted as making the child’s right to respond to any offer of employment conditional upon the parent’s residing in the Member State in question at the time when the child wishes to take up employment there following the completion of vocational training. (9) To support that view, the Court pointed out that the child of a Turkish migrant worker legally employed for at least three years in a Member State, who is himself legally resident in that Member State, has completed training there and is then offered an opportunity to work there, is no longer at that stage to be regarded as depending on the presence of one of his parents since, on gaining access to the employment market, he is no longer materially dependent on them but is able to provide for his own needs. (10)

25. The Court therefore c oncluded that, having regard to the spirit and purpose of the provision in question and to the context of which it forms part, the second condition laid down in the second paragraph of Article 7 of Decision No 1/80 must be construed as requiring merely that the parent should have been legally in salaried employment for at least three years in the host Member State at some stage prior to the date on which his child completes a course of vocational training there. (11)

26. So far as concerns the present case, it should be noted that the question submitted to the Court by the referring court is, in essence, whether the case‑law established in Akman , cited above, is also applicable in a situation where the Turkish worker who has been employed has no longer been resident in the Member State concerned for 10 years at the time when his child starts her vocational training there.

27. With that in mind, in order to be able to give a helpful answer to the question referred, it seems to me important to identify the elements which distinguish the factual circumstances of the case in the main proceedings from those of the case which gave rise to the judgment in Akman .

28. It is first of all important to recall that, at the time when Mr Akman, having been authorised to enter the Federal Republic of Germany in order to join his father, started his studies, his father still held the status of Turkish worker within the meaning of the first paragraph of Article 7 of Decision No 1/80, since he was still duly registered as a member of the labour force of that Member State on that date. It was only at the time when Mr Akman completed his vocational training and wished to gain free access to employment by seeking to claim a right to respond to any offer of employment on the basis of the second paragraph of Article 7 of that decision that his father no longer belonged to the labour force of the host Member State.

29. However, in the present case, Ms Bekleyen’s parents were not employed and were not even resident in the Federal Republic of Germany either at the start of her vocational training or at the time when she completed her university studies.

30. What distinguishes this case from Akman in legal terms is closely connected with that fact.

31. It must be remembered, as I have already noted at point 22 of this Opinion, that in Akman the Court stated that the second paragraph of Article 7 of Decision No 1/80 makes the right which it confers on the child of a Turkish worker to respond to any offer of employment in the host Member State dependent on two conditions: that the child in question must have completed a course of vocational training in the Member State concerned and that one of his or her parents must have been legally employed there for at least three years.

32. In that regard, it is necessary, first of all, to make an observation concerning the interpretation of the second paragraph of Article 7 of that decision, made by the Court in Akman , concerning the two conditions to be fulfilled by the Turkish national wishing to rely on employment rights on the basis of that provision.

33. It seems to me important to point out that there are not two, but three cumulative conditions which must be satisfied in order to qualify for the right of free access to employment on the basis of the second paragraph of Article 7 of Decision No 1/80. The person concerned must (1) have completed a course of vocational training in the host Member State, (2) prove that one of his or her parents ‘has been legally employed in the Member State concerned for at least three years’ and (3) be the child of a Turkish worker. (12)

34. In this case, the first condition is undoubtedly fulfilled, since Ms Bekleyen completed her university studies in the host Member State and graduated as a ‘graduate engineer’ in landscape planning.

35. With regard to the second condition laid down in the second paragraph of Article 7 of Decision No 1/80, it is not disputed by the parties that it is also fulfilled in the present case since Ms Bekleyen’s parents, Turkish nationals, had both been legally employed in the Federal Republic of Germany for more than three years.

36. Consequently, it is the third condition, concerning the status of child of a Turkish worker, which is, in this case, at the centre of the dispute.

37. The identification of that element as the element which distinguishes the present case from Akman enables us better to define its subject‑matter. The national court raises, in essence, the question as to the need for the existence of a relationship of simultaneity between the existence of the parent’s status as a Turkish worker within the meaning of Decision No 1/80 and the start and duration of the child’s vocational training for the purpose of acquisition by the latter of the rights resulting from the second paragraph of Article 7 of Decision No 1/80.

38. The Danish and Netherlands Governments submit that the second paragraph of Article 7 of Decision No 1/80 does not apply to the child of the Turkish workers if she does not start her studies in the host Member State until a date on which both her parents have already permanently left the territory of that State. Those governments are of the opinion that the second paragraph of Article 7 of that decision makes the right of free access to the employment market – and the resulting right of residence – conditional upon there being a certain temporal concomitance between the residence and employment of the parents in the host Member State and the possibility for the child to obtain access to employment after following a course of vocational training there.

39. It can be inferred from that position, which emphasises the importance of the third condition relating to the status of ‘child of a Turkish worker’, that one of the parents of the Turkish national must have the status of Turkish worker within the meaning of Decision No 1/80 at the start of and during the studies of the child in question in order for the latter to qualify, after completing her vocational training, for the right of free access to employment on the labour market of the host Member State.

40. With regard to the status of ‘child of a Turkish worker’ as referred to in the second paragraph of Article 7 of Decision No 1/80, which the Turkish national must have in order to be able to obtain, at the end of her vocational training, the right of free access to employment, it must be observed that that paragraph, contrary to what is expressly provided in Article 6 and the first paragraph of Article 7 of the same decision, does not require the Turkish worker, whose child wishes to claim a right of residence, to be duly registered as belonging to the labour force of a Member State, an additional condition which, by contrast, is laid down in both the latter provisions.

41. The problem raised by that specific feature of the wording of the second paragraph of Article 7 is that of establishing whether it arises from the intention of the Community legislature to make a summary reference to the concept of Turkish worker contained in the other two provisions – Article 6 and the first paragraph of Article 7 – or whether it represents a decision to differentiate the conditions for the application of the provision in question from those relating to the others.

42. In order to shed light on the meaning of the wording in question in relation to this case, it is necessary to start from a consideration of the judgments given by the Court of Justice in Bozkurt (13) and Tetik . (14) In the first of those two cases, the Court examined the conditions laid down by Article 6(2) of Decision No 1/80, which treats certain periods of absence as legal employment and under which ‘[a]nnual 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’. The Court was asked to clarify whether, on the basis of that provision, a Turkish worker such as Mr Bozkurt could retain his right to remain in the territory of the host State following an accident at work rendering him permanently incapacitated for work.

43. The Court ruled that, taking into account the objective of Decision No 1/80, which is to consolidate the situation of Turkish workers who are already in employment, the right of residence must remain a corollary of the worker’s employment so that, where there is a break in employment, the right of residence can subsist only if that break is of limited duration. It held that that interpretation was in conformity with the wording of Article 6(2) of Decision No 1/80, which refers only to temporary absences which would not as a rule affect the worker’s subsequent participation in working life. In contrast, in the case of long-lasting incapacity for work, the worker is no longer available as a member of the labour force at all and there is no objectively justified reason for guaranteeing him the right of access to the labour force and an ancillary right of residence. (15)

44. According to the Court, Article 6 of Decision No 1/80 ‘does not … cover the situation of a Turkish worker who has definitively ceased to belong to the labour force of a Member State’. (16) The Court inferred from this that, ‘in the absence of any specific provision conferring on Turkish workers a right to remain in the territory of a Member State after working there, a Turkish national’s right of residence … ceases to exist if the person concerned becomes totally and permanently incapacitated for work’. (17)

45. Subsequently, in Tetik , cited above, the Court confirmed what it had stated in Bozkurt and specified ‘that a Turkish worker who has been legally employed for more than four years in a Member State, who decides voluntarily to leave his employment in order to seek new work in the same Member State and is unable immediately to enter into a new employment relationship, enjoys in that State, for a reasonable period, a right of residence for the purpose of seeking new paid employment there, provided that he continues to be duly registered as belonging to the labour force of the Member State concerned, complying where appropriate with the requirements of the legislation in force in that State, for instance by registering as a person seeking employment and making himself available to the employment authorities’. (18)

46. In the light of those two judgments, the Danish and Netherlands Governments propose that the specific feature of the wording of the second paragraph of Article 7 of Decision No 1/80 should be understood as having the first of the two meanings set out at point 41 of this Opinion, that is to say, as meaning that it arises from the intention of the Community legislature to make a summary reference to the concept of Turkish worker used in the first paragraph of the same article.

47. Consequently, in their view, it is necessary (a) to take account of the fact that Ms Bekleyen’s parents, having left the territory of the Federal Republic of Germany and not having resided there for 10 years, ceased definitively to belong to the labour force of the host Member State, (b) to infer from this that, at the time and during the periods when Ms Bekleyen started, undertook and completed her vocational training in the Federal Republic of Germany, they no longer had the status of Turkish workers for the purposes of applying the second paragraph of Article 7 of Decision No 1/80 and (c) to resolve the problem raised by the referring court by ruling that a person in Ms Bekleyen’s situation is not in a position, at the end of her vocational training, to acquire the right of free access to employment and, therefore, may not rely on the employment and residence rights under the second paragraph of Article 7 of that decision.

48. Such a solution to the problem raised before the Court is precluded by three categories of reasons connected with (a) the objectives pursued by the Association Agreement and by Decision No 1/80, (b) the difference in content between the second paragraph of Article 7 of Decision No 1/80 and the first paragraph of the same article and (c) the effect of Article 59 of the Additional Protocol on the interpretation to be given to the second paragraph of Article 7 of Decision No 1/80.

A – The objectives pursued by the Association Agreement and by Decision No 1/80

49. As the Court has clearly emphasised, (a) Article 12 of the Association Agreement makes clear that ‘the aim of the agreement is to promote the continuous and balanced strengthening of trade and economic relations between the Contracting Parties, including in the labour sector, inter alia by progressively securing freedom of movement for workers’, (19) and (b) the securing of that objective must be pursued, ‘so far as is possible’, on the basis of a transposition, in the application of the rules laid down in the Association Agreement, of the rules and principles governing freedom of movement for workers in the Community (20) and ‘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 in the preamble and Article 28 of the agreement)’. (21)

50. That objective of the Association Agreement must necessarily inform the interpretation to be given to Decision No 1/80 which, according to the first and third recitals in the preamble, was adopted taking account of ‘the specific nature of the Association links between the Community and Turkey’ and which aims to implement ‘the provisions [of the agreement] … relating to the exchange of young workers’.

51. Bearing firmly in mind that, consequently, the provisions of the decision in question which are to be interpreted, namely, Article 6 and the first and second paragraphs of Article 7, are set in a context where the Community seeks to secure freedom of movement for workers progressively by specifically ensuring that young Turkish workers are admitted to the Community labour market, they must be interpreted by distinguishing between them in terms of the general objective which they have in common and of the specific function which each of them has.

52. A general objective common to all three provisions lies in the fact that they aim to promote the progressive securing of freedom of movement for Turkish workers between each of the Member States of the Community and Turkey.

53. The function of Article 6 of Decision No 1/80 is to specify the manner in which the progressive integration of Turkish workers into the labour force of a Member State of the Community is to be secured.

54. The first and second paragraphs of Article 7 of that decision remain in keeping with the general spirit of the system to which they belong by providing for admission of the family members of such workers to the labour market of the host Member State. That general objective, which is common to both paragraphs, is confirmed by the judgment in Derin , cited above, according to which the objective of Article 7 of Decision No 1/80 is the ‘progressive consolidation of the situation of the family members of [Turkish] workers in the Member State concerned, by permitting them, after a certain period of time, to live independently there’. (22)

55. That admission of the family members of the Turkish worker to the labour market of the host Member State takes the form of a right – 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 if they are simply family members (first indent of the first paragraph of Article 7); that of free access for such family members to any paid employment of their choice provided they have been legally resident there for a least five years (second indent of the first paragraph); and, in the case of children (and not only family members), that of the opportunity for them to respond to any offer of employment in the host Member State, provided that one of their parents has been legally employed for at least three years and that the child has completed a course of vocational training in that Member State (second paragraph of Article 7).

56. The specific objective of the first paragraph of Article 7 of Decision No 1/80 is to integrate Turkish workers into the market of the host Member State by satisfying their interest in being joined by their family members in a manner consistent with their desire for access to the labour market. That is why it was provided that the rights of their family members were to be subject to the condition that those workers are and continue to be duly registered as belonging to the labour force of the host Member State.

57. As the Court stated in Kadiman , (23) that first paragraph (a) has as its purpose ‘to favour employment and residence of Turkish workers duly registered as belonging to the labour force of a Member State by ensuring that their family links are maintained there’, (24) (b) grants those family members the right, after a specified time, to take up employment in that State ‘in order to deepen the integration of a migrant Turkish worker’s family unit in the host Member State’ (25) and (c) ‘is designed to create conditions conducive to family unity in the host Member State, first by enabling family members to be with a migrant worker and then by consolidating their position by granting them the right to obtain employment in that State’. (26)

58. The second paragraph of Article 7 of Decision No 1/80, on the other hand, does not have as its purpose the creation of conditions conducive to family unity in the host Member State, (27) but that of facilitating the entry of Turkish workers’ children who have completed a course of vocational tr aining into the employment market of the host Member State, the objective being the achievement by progressive stages of freedom of movement for workers. (28) It is for this reason that the application of that paragraph is no longer closely linked to the objective of integrating the parents of a Turkish child into the host Member State and that the provision in question does not require those parents to be duly registered as belonging to the labour force of that Member State at the time when that child wishes to respond to an offer of employment.

59. Moreover, the interpretation proposed by the Danish and Netherlands Governments, which requires the actual presence of the parents in the territory of the host Member State and their being duly registered as belonging to the labour force of that State, would render the second paragraph of Article 7 of Decision No 1/80 completely redundant, since that provision would then contain nothing new in relation to the first paragraph, which is aimed more broadly at the family unity of the ‘members of the family’.

60. Consequently, since the second paragraph of Article 7 of Decision No 1/80 does not specifically have an objective of family unity, it cannot be read as containing a condition of residence and employment of the parents and, therefore, of cohabitation of the parents and the child at the start of and during the latter’s vocational training.

B – The difference in content between the second paragraph of Article 7 of Decision No 1/80 and the first paragraph of that article

61. In the light of the separate specific functions of the first and second paragraphs of Article 7 of Decision No 1/80, while the content of the first paragraph must be interpreted as giving rise to a right for 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, as a right deriving from that of that worker, the content of the second paragraph must, by contrast, be interpreted as giving rise to an independent right for his children, provided that the conditions which it lays down are fulfilled.

62. The arrangement of a right for the children of Turkish workers to have free access to the labour market of a Member State of the Community as an independent right and not as a derivative right, which follows from that, is not contradicted by the fact that, as I have emphasised at point 31 et seq. of this Opinion, the second paragraph of Article 7 of Decision No 1/80 provides for that right precisely for ‘[c]hildren of Turkish workers … provided one of their parents has been legally employed in the Member State concerned for at least three years’.

63. That criterion undoubtedly means that the right of a child of Turkish workers to have free access to the labour market of the host State derives from the parents’ employment in the past. However, the function specific to the second paragraph of Article 7 of that decision ensures that the criterion in question is not relevant in the sense of elevating retention of the status of Turkish worker by one of the parents during the training of the child in question to a condition for the application of that article. That criterion must be regarded, together with that child’s obtaining of a diploma recognising the vocational training, as a fact to be taken into account in order to establish the minimum extent of that child’s integration into the society of the host Member State; it was on account of such a level of integration that Decision No 1/80, in the spirit of the Association Agreement recalled in points 49 and 50 of this Opinion, deemed it necessary to grant that child a preferential status in relation to any other third‑country citizen and any other member of the same family.

64. It was obviously in the light of that consideration of the status of child of a Turkish worker as a historical fact with sociological significance that, at paragraph 30 of the judgment in Akman , the Court emphasised the fact that the second paragraph of Article 7 of that decision used the verb ‘to be [legally employed]’ in the past tense – as opposed to the use of the present tense in the first paragraph of the same article (29) – by providing for the right in question ‘provided one of their parents has been legally employed in the Member State concerned for at least three years’. The Court therefore stressed the significance of that fact in ruling that the wording in question ‘suggests that the relevant requirement … must have been fulfilled at some earlier stage than that at which the child has completed a course of vocational training’. (30)

65. As I have already emphasised at point 61 of this Opinion, Decision No 1/80 confers on the child an independent right of access to the labour market of a Member State of the Community not only on the basis of the fact that he or she is the child of a worker who has been legally employed in a Member State for at least three years, but also on the basis of the fact that he or she has obtained a diploma following the completion of a course of vocational training in that same country.

66. It was by means of those two conditions that Decision No 1/80 implemented the principle of ‘progressively securing freedom of movement for Turkish workers’, on which the Association Agreement is based. On the one hand, Decision No 1/80 does not place Turkish children on the same footing as Community workers, since it provides for them to have access only to the labour market of the country where one of their parents has been legally employed for at least three years; on the other hand, it admits them to that market only if they have acquired an ability to integrate into the society of that country to a sufficient extent, demonstrated by the obtaining of a diploma following the completion of a course of vocational training.

67. It follows from all of the foregoing considerations that, unless a different conclusion is reached on the basis of an application of Article 59 of the Additional Protocol, the second paragraph of Article 7 of Decision No 1/80 must be interpreted as meaning that a child of a Turkish worker previously legally employed in the host Member State for three years, who has completed a course of vocational training in that Member State may rely on a right of free access to the employment market of that same State and on a corresponding right of residence, notwithstanding the fact that her parents permanently left that Member State before that child entered the territory of that Member State and started her vocational training.

C – The effect of Article 59 of the Additional Protocol on the interpretation to be given to the second paragraph of Article 7 of Decision No 1/80

68. The referring court raises the question of whether the interpretation set out in the previous point is compatible with Article 59 of the Additional Protocol, under which ‘Turkey shall not receive more favourable treatment than that which Member States grant to one another pursuant to the Treaty establishing the Community’; a comparison is therefore necessary in order to establish whether the solution to the problem in question, as set out in the previous point, would not have the effect that, in a case such as that in the main proceedings, a child of a Turkish worker would receive more favourable treatment than that received by a child of a Community worker. Such a comparison is all the more necessary since the referring court is of the opinion that a child of a European Union national would not retain the rights resulting from an earlier stay in the host Member State when she returns there alone, after having left with her parents, in order to start a course of vocational training there.

69. In order to carry out that comparison properly, it is important to make two preliminary observations.

70. Firstly, it is apparent from settled case‑law that Decision No 1/80 does not encroach upon the competence retained by the Member States to regulate both the entry into their territory of Turkish nationals and the conditions under which they may take up their first employment. (31)

71. With regard to the situation of the members of the family of a Turkish worker, the Court held in Ergat that, notwithstanding the adoption of Decision No 1/80, the Member States have retained the power to regulate both the entry into their territory of a member of the family of a Turkish worker and the conditions of his residence during the initial three-year period before he has the right to respond to any offer of employment. (32)

72. That competence of the Member States also implies the power to regulate the resettlement or readmission of a member of the family of a Turkish worker who has previously acquired the rights provided for by Article 7 of Decision No 1/80 but who has, in principle, lost that legal status due to the fact that the worker concerned left the territory of the host Member State for a significant period and without legitimate reasons. Consequently, the Court has held that the authorities of the Member State concerned are entitled to require that, should the member of the family of a Turkish worker subsequently wish to settle in that State again, he must make a fresh application either for authorisation to join that worker if he is still dependent on that worker, or to be admitted into the same Member State, with a view to working there, on the basis of Article 6 of Decision No 1/80. (33)

73. In that regard, it must be pointed out that the interpretation of the second paragraph of Article 7 of Decision No 1/80 which I propose at point 67 of this Opinion does not encroach on the competence of the Member States to make the readmission of the child of a Turkish worker who has permanently left the host Member State together with his family conditional on the issue of a new entry clearance, where the child in question wishes to study in that Member State. (34)

74. Secondly, for the purposes of the comparison between the situation of a child of a Turkish worker and that of a child of a national of a Member State in a case such as that at issue in the main proceedings, account should be taken of the fact that the right of residence in the Federal Republic of Germany, which Ms Bekleyen was granted after her return to that Member State in order to pursue her vocational training, was based on national law and not on Decision No 1/80.

75. In the light of that fact, in order to make that comparison, contrary to what is maintained in the observations of the Danish Government and to the opinion of the referring court, account must be taken of Ms Bekleyen’s situation at the time when she finished her vocational training and wished to gain access to the labour market of the host Member State by seeking to claim a right deriving from the second paragraph of Article 7 of Decision No 1/80, and not at the time when she entered the territory of that State and started her university studies. The particular nature of her situation results from the fact that her parents were no longer resident in the host Member State either at the time of her return to that Member State or throughout the period of her vocational training; consequently, her case does not come under the heading of family unity. This is therefore a case of a child of majority age who finds herself, at the end of her university studies, in the situation of an independent person. (35) Her rights deriving from Decision No 1/80 must therefore be compared with those of a child of a European Union citizen who wishes to gain access to the employment market of another Member State following the completion of her vocational training undertaken in that State without the presence of her parents in the territory of the Member State in question. (36)

76. In that regard, it should be noted that the situation of a child of a European national, contrary to the opinion of the referring court, is not covered either by Article 7(1)(d) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (‘Directive 2004/38’) (37) or by Article 12(1) of that directive. (38)

77. Article 7(1)(d) of Directive 2004/38 provides for a right of residence within the territory of another Member State for a period of more than three months for family members accompanying or joining a Union citizen where the latter has the status of worker (Article 7(1)(a)) or has sufficient resources (Article 7(1)(b)) or pursues a course of study (Article 7(1)(c)).

78. The very words ‘accompanying or joining’ used by that provision show that, in pursuing the objective of family unity, Article 7(1) (d) of Directive 2004/38 presupposes the presence of at least one of the parents of the child in question in the territory of the host Member State in order for the latter to qualify for the right of residence there. However, the examination to be carried out under Article 59 of the Additional Protocol must be made, as I emphasised at point 75 of this Opinion, by comparing the situation of a Turkish child under consideration in the case in question with the situation of a European Union citizen’s child whose parents are no longer resident within the territory of the host Member State at the time when he or she seeks to claim a right of free access to the employment market there.

79. Article 12(1) of Directive 2004/38, for its part, provides for retention of the right of residence by family members in the event of death or departure of the European Union citizen. Clearly, therefore, that provision must not be taken into account for the purposes of the comparison to be made on the basis of Article 59 of the Additional Protocol in the light of the fact that the comparison must be made in relation to a situation where the parents of a child were no longer resident at the time of her return to, and throughout the period of her residence in, the host Member State.

80. As regards the child of a European Union citizen who herself holds that citizenship, on the other hand, account must be taken of Articles 18 and 39 EC, Article 7(1)(a) of Directive 2004/38 and the Court’s case‑law concerning Article 39 EC.

81. As provided in Article 18(1) EC, ‘[e]very citizen of the Union has the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and in the measures adopted to give it effect’.

82. Article 39(1) EC, for its part, declares the fundamental principle of freedom of movement for workers within the Community, whilst Article 39(2) provides that such freedom of movement is to entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. Under Article 39(3)(a) and (b), freedom of movement for workers is to entail the right to accept offers of employment actually made and the right to move freely within the territory of Member States for that purpose.

83. In addition, Article 7(1)(a) of Directive 2004/38 provides that all Union citizens are to have the right of residence on the territory of another Member State for a period of longer than three months if they are workers or self-employed persons in the host Member State.

84. Finally, the Court’s case‑law concerning Article 39 CE has shown that the concept of ‘worker’ has a specific Community meaning and must not be interpreted narrowly; (39) the Court has made clear, by findings which are also applicable to the interpretation of the concept of ‘worker’ within the meaning of Article 7(1)(a) of Directive 2004/38, that that concept covers not only the person who moves to another Member State in order to respond to an actual offer of employment, but also the person who does so in order to seek employment. (40)

85. It follows that a national of a Member State, a child of majority age of a European Union citizen, having completed his or her university studies in another Member State, not only enjoys, independently, the right of residence on the territory of that host Member State, but also has the right of free access to paid employment on the labour market of that same Member State. Under Article 39 EC, that right can be limited only on grounds of public policy, public security or public health.

86. By contrast, as regards the rights of a child of a Turkish worker, Turkish nationals who have the rights of access to employment and residence conferred by Article 7 of Decision No 1/80, unlike European Union citizens, are not entitled to freedom of movement within the Community but can rely only on certain rights in the territory of the host Member State alone. (41)

87. Moreover, as I have already emphasised at point 33 of this Opinion, in order for a child of a Turkish national to qualify for the right of free access to employment and for the correlative right of residence on the basis of the second paragraph of Article 7 of Decision No 1/80, she must satisfy three cumulative conditions: (1) be the child of a Turkish worker, (2) prove that one of her parents ‘has been legally employed in the Member State concerned for at least three years’ and (3) have completed a course of vocational training in the host Member State.

88. It follows that the child of a Turkish national, unlike a child of a European Union citizen, does not enjoy an unconditional right of access to the employment market of a Member State and a corresponding right of residence, since she must satisfy a number of conditions in order to acquire those rights. Moreover, as regards the scope of the rights which are conferred on her by the second paragraph of Article 7 of Decision No 1/80, as has been observed in the preceding points of this Opinion, those rights involve significant disadvantages (no freedom of movement within the Community, entry into the territory of a Member State subject to its national law) as compared with those which a Community national derives from the Treaty rules relating to freedom of movement for workers and from the secondary legislation adopted for their implementation.

89. It therefore follows that the proposed interpretation concerning the rights deriving from the second paragraph of Article 7 of Decision No 1/80 does not have the effect of applying more favourable treatment to the child of a Turkish worker than that which a child of a European Union citizen would receive under the Treaty.

90. In view of those considerations, I am of the opinion that the interpretation of the second paragraph of Article 7 of Decision No 1/80 to the effect that a child of a Turkish worker previously legally employed in the host Member State for three years, who has completed a course of vocational training in that Member State may rely on a right of free access to the employment market of that same State and on a corresponding right of residence, notwithstanding the fact that her parents permanently left that Member State before that child entered the territory of that Member State and started her vocational training, is not contrary to Article 59 of the Additional Protocol.

V – Conclusion

91. In the light of all the foregoing considerations, I propose that the Court should answer as follows the question referred for a preliminary ruling by the Oberverwaltungsgericht Berlin-Brandenburg:

The second paragraph of Article 7 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Association Agreement between the European Economic Community and Turkey, must be interpreted as meaning that a child of a Turkish worker previously legally employed in the host Member State for three years, who has completed a course of vocational training in that Member State may rely on a right of free access to the employment market of that same State and on a corresponding right of residence, notwithstanding the fact that her parents permanently left that Member State before that child entered the territory of that Member State and started her vocational training.

(1) .

(2) – The Association Council was set up by the Agreement signed in Ankara on 12 September 1963 by the Republic of Turkey, on the one hand, and by the Member States of the EEC and the Community, on the other. That agreement was concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113, p. 1, ‘the Association Agreement’).

(3) – The Decision of 19 September 1980 on the development of the Association entered into force on 1 July 1980. It has not been published in the Official Journal but can be consulted in: EEC-Turkey Association Agreement and Protocols and Other Basic Texts , Office for Official Publications of the European Communities, Brussels, 1992.

(4) – Signed in Brussels on 23 November 1970 for the purpose of laying down the conditions, arrangements and timetables for the implementation of the transitional stage, and concluded, approved and confirmed on behalf of the Community by Council Regulation No 2760/72/EEC of 19 December 1972 (OJ 1973 C 113, p. 17, ‘the Additional Protocol’).

(5) – Case C‑355/93 Eroglu [1994] ECR I-5113, paragraph 17; Case C‑210/97 Akman [1998] ECR I‑7519, paragraph 23; and Case C‑502/04 Torun [2006] ECR I‑1563, paragraph 19.

(6) – Eroglu , paragraphs 20 and 23; Akman , paragraph 24; and Torun , paragraph 20.

(7) – Torun , paragraphs 27 and 28.

(8) – Paragraph 25.

(9) – Paragraph 44.

(10) – Paragraph 45.

(11) – Paragraph 47.

(12) – It should be noted that, although, in Akman , the Court briefly examined whether Mr Akman had the status of child of a Turkish worker, a status disputed by the German and Greek Governments, it did not consider that criterion qua condition explicitly laid down in the second paragraph of Article 7 of Decision No 1/80.

(13) – Case C-434/93 [1995] ECR I‑1475.

(14) – Case C-171/95 [1997] ECR I‑329.

(15) – Bozkurt , paragraph 36.

(16) – Ibid., paragraph 39.

(17) – Ibid., paragraph 40.

(18) – Ibid., paragraph 48.

(19) – Case C‑325/05 Derin [2007] ECR I‑6495, paragraph 3.

(20) – See Bozkurt , paragraph 20.

(21) – Derin , paragraph 3. See, on this point, O’Leary, S., ‘Employment and residence for Turkish workers and their families: Analogies with the case-law of the Court of Justice on Art. 48 EC’, in Festschrift für G.F. Mancini , 1998, p. 738.

(22) – Paragraph 71.

(23) – Case C‑351/95 [1997] ECR I‑2133.

(24) – Paragraph 34.

(25) – Ibid., paragraph 35.

(26) – Ibid., paragraph 36.

(27) – See Akman , paragraph 34.

(28) – See Akman , paragraph 38, and Torun , paragraph 23.

(29) – In that first paragraph, Decision No 1/80 lays down the conditions for access to the labour market of the host Member State for a member of the family of a Turkish worker ‘belonging’ to the labour force in question.

(30) – It was on the basis of that interpretation of the second paragraph of Article 7 of Decision No 1/80, contained in paragraph 30 of the judgment in Akman , that the Court came to the view, in paragraph 44 of that judgment, that the second paragraph cannot be interpreted as making the child’s right to respond to any offer of employment conditional upon the parent’s residing in the Member State in question at the time when the child wishes to take up employment there following completion of vocational training. The narrower nature of this finding by the Court, as compared with that contained in paragraph 30 of Akman , reproduced above in this paragraph of my Opinion, is – specifically – due to the fact that, in that case, it constituted the application of the interpretation of the paragraph in question, which was necessary in order to answer the question which had been referred to it for a preliminary ruling.

(31) – See, inter alia, Case C-237/91 Kus [1992] ECR I-6781, paragraph 25; Kadiman , paragraph 31; and Case C-337/07 Altun [2008] ECR I‑0000, paragraph 48.

(32) – Case C-329/97 [2000] ECR I-1487, paragraph 42.

(33) – Ergat , paragraph 49, and Derin , paragraph 67.

(34) – The Commission has maintained, in this regard, in its written observations, that Ms Bekleyen has not lost her legal status acquired pursuant to the first paragraph, second indent, of Article 7 of Decision No 1/80, that is to say that she still enjoys, on her return, free access to any paid employment in the host Member State and the right of residence. In the Commission’s view, given that, as a minor, Ms Bekleyen did not leave the host Member State of her own accord, but yielded to her parents’ decision, it cannot be presumed that she had left that State ‘without legitimate reasons’. However, I am of the opinion that sight should not be lost of the fact that the question referred relates only to the interpretation of the second paragraph of Article 7 of Decision No 1/80 and that the question relating to the rights which Ms Bekleyen could derive from the first paragraph, second indent, of Article 7 of Decision No 1/80 was not raised either in the national administrative proceedings or before the national courts, and was not even mentioned by the applicant in her observations. Consequently, I shall not examine the question whether Ms Bekleyen has lost her legal status, possibly acquired, as the Commission claims, pursuant to the first paragraph of Article 7 of Decision No 1/80, as a result of the fact that she left the territory of the Federal Republic of Germany.

(35) – The Court affirmed that independence which characterises the moment of completion of university studies in paragraph 45 of the judgment in Akman , according to which ‘… the child of a Turkish migrant worker legally employed for at least three years in a Member State, who is himself legally resident in that Member State, has completed training there and is then offered an opportunity to work there, is no longer at that stage to be regarded as depending on the presence of one of his parents since, on gaining access to the employment market, he is no longer materially dependent on them but is able to provide for his own needs’.

(36) – In order to undertake that comparison, I have taken into consideration only part of the arguments expounded in the Derin case, for two reasons. Firstly, in the case in question, the Court compared the rights of a child of a Turkish worker deriving from the first paragraph of Article 7 of Decision No 1/80 and not those arising from the second paragraph of the same article. Secondly, although the Court pointed out, in paragraph 68 of that judgment, that ‘the situation of a child of a migrant Turkish worker cannot usefully be compared to that of a descendant of a national of a Member State, having regard to the significant differences between their respective legal situations’, the fact nevertheless remains that this was stated in the context of the assessment of the exhaustive character of the grounds for loss of the right of residence which the family members of Turkish nationals derive from the first paragraph of Article 7 of Decision No 1/80. Consequently, I am of the opinion that the arguments which formed the grounds of the judgment in Derin are not capable of being applied, in their entirety, to the situation covered by the present case.

(37) – OJ 2004 L 158, p. 77, and corrigendum in OJ 2004 L 229, p. 35.

(38) – I shall undertake that comparison having regard to the provisions of Directive 2004/38 and not of those of Article 11 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992 (OJ 1992 L 245, p. 1). Article 11 of Regulation No 1612/68 was repealed and replaced by Directive 2004/38, Article 40 of which required that directive to be transposed by the Member States by 30 April 2006. Although the applicant submitted her application for a residence permit at a time when Article 11 of Regulation No 1612/68 was still applicable, namely on 19 December 2005, it should nevertheless be noted that the new directive had already entered into force by that date. However, on 21 September 2006, when Land Berlin rejected that application, Article 11 of Regulation No 1612/68 had already been repealed and only Directive 2004/38 was applicable, as was the case throughout the court proceedings. Consequently, it seems to me appropriate to undertake that comparison on the basis of Directive 2004/38.

(39) – Case C-138/02 Collins [2004] ECR I-2703, paragraph 26 and the case‑law cited.

(40) – See, to that effect, Case C-85/96 Martínez Sala [1998] ECR I-2691, paragraph 32, according to which, in the context of Article 39 EC, ‘a person who is genuinely seeking work must also be classified as a worker’.

(41) – See to that effect, inter alia, Tetik , paragraph 29, and Derin , paragraph 66.