Opinion of Mr Advocate General Elmer delivered on 14 November 1996. - Recep Tetik v Land Berlin. - Reference for a preliminary ruling: Bundesverwaltungsgericht - Germany. - EEC-Turkey Association Agreement - Decision of the Council of Association - Free movement of workers - Extension of a residence permit - Voluntary termination of a contract of employment. - Case C-171/95.



European Court reports 1997 Page I-00329



Opinion of the Advocate-General

1 Is a Turkish worker entitled to a residence permit in a Member State under the provisions of Decision No 1/80 of the EEC-Turkey Council of Association in the case where he has voluntarily terminated his employment and after termination of his previous employment relationship wishes to seek new work in the Member State in question? That, in brief, is the issue which the Court must address in the present reference for a preliminary ruling.

The relevant rules of Community law

2 According to Article 2(1), the Association Agreement between the European Economic Community and Turkey (1) has as its aim `to promote the continuous and balanced strengthening of trade and economic relations between the Parties, while taking full account of the need to ensure an accelerated development of the Turkish economy and the living conditions of the Turkish people'.

Under Article 12 of the Agreement, the Parties agreed `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'.

3 Article 36 of an Additional Protocol to the Association Agreement of 23 November 1970 (2) provided that the Council of Association was to decide on the rules necessary for the progressive implementation of the free movement of workers between Member States of the Community and Turkey in accordance with the principles set out in Article 12 of the Association Agreement.

4 Pursuant to those provisions, the Council of Association adopted Decision No 1/80 of 19 September 1980, which entered into force on 1 July 1980. (3) Article 6(1) and (2) of the Decision is worded as follows:

`1. ... a Turkish worker duly registered as belonging to the labour force of a Member State:

...

- 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.'

Article 13 of Decision No 1/80 provides that:

`The Member States of the Community and Turkey may not introduce new restrictions on the conditions of access to employment applicable to workers and members of their families legally resident and employed in their respective territories.'

The facts of the case

5 Recep Tetik, who was born in 1958, is a Turkish national and was employed, from the autumn of 1980, as a seaman on various German sea-going vessels. For that purpose, he obtained under German aliens legislation temporary residence permits (the last valid until 4 August 1988) which entitled him to take employment in shipping. The residence permits contained the express conditions `Not authorized to take up residence on shore' and `This residence permit shall expire upon cessation of employment in German shipping'. Mr Tetik terminated his employment on 20 July 1988 and was thereafter unemployed.

6 According to the information which he has supplied, Mr Tetik moved on 1 August 1988 to Berlin, where, on the same day, he applied for an unlimited residence permit for the purpose of seeking unspecified employment. He stated in this connection that he intended to reside in Germany until about 2020. By decision of 19 January 1989, the aliens authority for the Land Berlin turned down his application for a residence permit on the ground that the purpose of his residence in Germany had lapsed and that a residence permit could not be issued to him for the purposes of employment other than in shipping.

Mr Tetik lodged a complaint against that decision. His appeal was turned down by decision of 12 October 1989 on the ground that it had for years been established practice, expressly confirmed in March 1989 by an official instruction to employees of the aliens authority, not to authorize on-shore employment for foreign seamen following termination of their employment in German shipping. The purpose of this rule was, following the general halt to the employment of foreign labour in September 1973, to avoid the continuing immigration of such foreign labour by means of temporary employment in shipping.

7 Mr Tetik brought proceedings on 27 July 1989 against the Land Berlin before the Verwaltungsgericht (Administrative Court); however, its decision of 10 December 1991 went against him. He appealed against the decision of the Verwaltungsgericht, but his appeal was turned down by judgment of the Oberverwaltungsgericht (Higher Administrative Court) of 24 March 1992. That judgment was based, inter alia, on the ground that Mr Tetik was not entitled to a residence permit under Article 6(1) of Decision No 1/80 of the Council of Association.

8 With the leave of the Bundesverwaltungsgericht (Federal Administrative Court), Mr Tetik thereupon appealed on a point of law against the judgment of the Oberverwaltungsgericht. He argued in that connection that the Oberverwaltungsgericht had misinterpreted the conditions governing the issue of a residence permit under Article 6(1) of Decision No 1/80.

The questions submitted for a preliminary ruling

9 By order of 11 April 1995, the Bundesverwaltungsgericht stayed the proceedings and referred the following questions to the Court for a preliminary ruling:

`1. Is a Turkish seaman, who was employed from 1980 to 1988 on maritime vessels of a Member State, a member of the labour force of that Member State and legally employed there within the meaning of Article 6(1) of Decision No 1/80 of the EEC/Turkey Council of Association on the development of the Association where his employment relationship was governed by national law and he paid income tax and was affiliated to the social security system in that Member State, but the residence permit issued to him was limited to working in shipping and did not authorize him to take up residence on shore?

Is it relevant in that connection that under German law that activity is not subject to the requirement of a work permit and that, to some extent, special statutory arrangements apply to seamen from the point of view of employment law and social security law?

2. If Question 1 is answered in the affirmative:

Does a Turkish seaman lose his right to be granted a residence permit if he terminates his employment relationship voluntarily, and not, for example, on health grounds, and 11 days later, after the expiry of his residence permit, applies for a residence permit for work on shore and after the refusal to grant the permit is unemployed?'

10 The first question concerns the interpretation of the term `duly registered as belonging to the labour force of a Member State' in Article 6(1) of Decision No 1/80 of the Council of Association. In its judgment of 6 June 1995 in Case C-434/93 Bozkurt v Staatssecretaris van Justitie, (4) the Court had an opportunity to rule on a similar question. For that reason, the Registry of the Court sent the Bozkurt judgment to the Bundesverwaltungsgericht by letter of 26 June 1995, asking whether it wished to maintain its questions. By order of 30 August 1995, the Bundesverwaltungsgericht withdrew the first of the questions which it had submitted.

Analysis

11 It is for that reason necessary to address only the second of the questions originally submitted. That question has been posed on the assumption that the first question would be answered in the affirmative. For the purpose of giving a reply, it must therefore be assumed that, over the period from 1980 to 1988, Mr Tetik was duly registered as belonging to the labour force in Germany and that he consequently enjoyed free access to any paid employment of his choice under the third indent of Article 6(1) of Decision No 1/80. It also follows from the order for reference that the national court is proceeding on the basis that Mr Tetik's termination of his employment as a seaman was voluntary and was not attributable to health or any other grounds.

12 The national court is thus in effect seeking the Court's views on whether a Turkish worker entitled to free access to employment under the third indent of Article 6(1) of Decision No 1/80 is entitled to a residence permit for the purpose of seeking employment in the case where he has voluntarily terminated his employment and is therefore unemployed.

13 Mr Tetik argues that, after having been legally employed in a Member State for almost eight years, he enjoys free access to any paid employment of his choice under the third indent of Article 6(1) of Decision No 1/80. A period of unemployment cannot deprive him of that right. In the same way as Community nationals, he must also have the right to a residence permit for a certain period for the purpose of seeking new employment.

14 The Commission takes the view that it must follow from the third indent of Article 6(1) of Decision No 1/80 that Turkish workers coming within the scope of that provision can voluntarily terminate an employment relationship in order to start new employment. In order for that provision to be effective, it must also be possible for a Turkish worker to terminate voluntarily an employment relationship in order to seek new employment. This must particularly apply where, as here, the case involves a seaman, who might well be regarded as having particular practical difficulties in finding employment on land. The Turkish worker must therefore be entitled to a residence permit for an appropriate period for the purpose of seeking work.

15 The Land Berlin, the United Kingdom and the French and German Governments, on the other hand, submit that Decision No 1/80 is not intended to implement full freedom of movement for Turkish workers and that the right of residence which those workers have under Decision No 1/80 is no more than a right derived from the employment relationship. A Turkish worker who thus enjoys free access to any paid employment of his choice under the third indent of Article 6(1) of Decision No 1/80 forfeits the right of residence, which follows naturally from the right of employment, once he is no longer employed.

16 I wish to state at the outset that it follows from Article 13 of Decision No 1/80 that after the entry into force of Decision No 1/80 no new restrictions may be introduced on the conditions of access to employment applicable to workers who are legally resident and employed. The German Government points out in this regard that the practice of the aliens authority in not granting foreign seamen residence and work permits for the purpose of employment on land after they cease working in German shipping dates back to the implementation of the Ausländergesetz (Law on aliens) of 28 April 1965. It cannot therefore, in its view, be argued that, after Decision No 1/80 entered into force on 1 July 1980, new restrictions were introduced on the conditions of access to employment applicable to workers already resident and employed.

17 According to their wording, the directly applicable provisions of Article 6(1) of Decision No 1/80 (5) cover only the right of Turkish workers to continued employment, on condition that they have been legally employed for specified periods. That right to continued employment must necessarily mean that, if those conditions are satisfied, the worker also has a right of residence while employed.

18 On the other hand, Article 6(1) does not cover the issue of the right to work and reside in the Member States for Turkish workers who do not satisfy the conditions as to duration set out therein. It will thus be the legislation of the Member States which determines whether and, if so, under what conditions Turkish nationals are entitled to enter and reside in their territory and to work there.

The Court accordingly ruled in its judgment in Sevince (6) that the provisions of Article 6(1) of Decision No 1/80:

`... merely govern the circumstances of the Turkish worker as regards employment, and make no reference to his circumstances concerning the right of residence.

The fact nevertheless remains that those two aspects of the personal situation of a Turkish worker are closely linked and that by granting to such a worker, after a specified period of legal employment in the Member State, access to any paid employment of his choice, the provisions in question necessarily imply - since otherwise the right granted by them to the Turkish worker would be deprived of any effect - the existence, at least at that time, of a right of residence for the person concerned.'

It follows that Mr Tetik, who was entitled in July 1988 to seek any form of paid employment in Germany, whether in shipping or on land, could, after accepting an offer of employment other than his work at that time as a seaman, have terminated his existing contract of employment and begun his new work and, consequently, requested a residence permit for the purpose of engaging in the work in question. The matter at issue, however, is whether Mr Tetik could terminate his existing employment relationship, thereby becoming voluntarily unemployed, and subsequently request a residence permit without having found new employment.

19 The Court has already in several cases had an opportunity to rule on the interpretation of Decision No 1/80 and has in general held, for instance in Bozkurt, cited above, concerning the rules in that Decision on the free movement of workers, that:

`... when the Association Council adopted the social provisions in Decision No 1/80, its aim was to go one stage further, guided by Articles 48, 49 and 50 of the Treaty, towards securing freedom of movement for workers' (paragraph 19).

It must therefore be assumed that Decision No 1/80 is not intended to implement full freedom of movement for Turkish workers, as envisaged in Article 48 et seq. of the Treaty for Community nationals, but has, on the contrary, much more modest objectives. Thus, it is not the objective of Article 6(1) of Decision No 1/80 that Turkish workers should, after four years of legal employment, be placed fully on a par with Community workers. For that reason, it cannot be assumed that merely because Community nationals are entitled to reside in Member States for a certain period for the purpose of seeking employment, Turkish workers must have the same right.

20 As mentioned above, the Court also held in Sevince that the right of residence is a right derived from the right to work. To understand an implied right of residence, in the absence of employment, for the purpose of seeking work therefore appears to be directly at variance with the Court's previous case-law on the right of residence in connection with access to employment under Article 6 of Decision No 1/80, inasmuch as the derived right of residence would become an autonomous right of residence, something which would run counter to the intentions of Decision No 1/80 in that it would not have to be linked to actual employment.

21 Article 6(2) of Decision No 1/80, moreover, regulates how absences intervening in the period before the requirement of, for instance, four years' employment has been satisfied are to be dealt with. In my Opinion in Bozkurt, which dealt, among other things, with the question whether a Turkish worker who has been legally employed in a Member State is entitled to reside within the territory of that Member State after suffering an accident at work and being rendered permanently unfit for work as a result, I stated as follows with regard to the second sentence of Article 6(2):

`The second sentence of Article 6(2) of the Association Council's Decision No 1/80 provides that periods of involuntary unemployment and long absences on account of sickness shall not be treated as periods of legal employment. Thus in reckoning the period laid down in Article 6(1), periods of involuntary unemployment and long absences on account of sickness are excluded. That part of the second sentence of Article 6(2) is, like the first sentence, intended to clarify the substance of the conditions of time on which the rights established by Article 6(1) may take effect, but it adds nothing to the description therein of the substance of those rights.

The second sentence of Article 6(2), however, provides at the same time that periods of involuntary unemployment or long absences on account of sickness are not to affect the rights acquired as a result of the preceding period of employment. This must imply that the Turkish worker will not lose, for example by being sick for a long period, the rights he has acquired under Article 6(1). However, in my view there is no basis for assuming that the expression "long absences on account of sickness" includes permanent incapacity for work ...

But regardless of which situations are assumed to be covered by the second sentence of Article 6(2) it must be stressed that that part of the provision likewise adds nothing to the description in Article 6(1) as to the substance of the right. The right which the Turkish worker thus does not lose by a long absence on account of sickness after having legal employment for four years in a Member State thus remains only "free access ... to any paid employment of his choice" and - derived from that - a right of residence whilst that employment is being pursued.' (7)

22 In line with this, the Court held in Bozkurt that:

`... Article 6 of Decision No 1/80 covers the situation of Turkish workers who are working or are temporarily incapacitated for work. It does not, on the other hand, cover the situation of a Turkish worker who has definitively ceased to belong to the labour force of a Member State because he has, for example, reached retirement age or ... become totally and permanently incapacitated for work.

Consequently, 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, as implicitly but necessarily guaranteed by Article 6 of Decision No 1/80 as a corollary of legal employment, ceases to exist if the person concerned becomes totally and permanently incapacitated for work'.

23 The Court also stated expressly in paragraph 40 of Bozkurt, regarding the situation in which a Turkish worker has involuntarily been forced to leave the labour market of a Member State, that Article 6 does not contain any provision conferring on Turkish workers a right to remain in a Member State `after working there'. That must a fortiori apply in a case such as the present, in which the Turkish worker left the labour market of the Member State in question on an entirely voluntary basis. The derived right of residence in a Member State under the third indent of Article 6(1) of Decision No 1/80 can be deemed to exist only so long as the Turkish worker is in fact duly registered as belonging to the labour force of the Member State in question. When Mr Tetik voluntarily signed off on 20 July 1988 and thereupon became voluntarily unemployed, he therefore ceased to be duly registered as belonging to the German labour force and his right to remain in Germany also ceased.

24 As already mentioned, the Commission has argued that there must be a right of residence after termination of previous employment with a view to seeking new work, particularly in the case of a seaman, who might well be regarded as having particular practical difficulties in finding employment on land. I would point out in this connection that - irrespective of whether such a rule may be considered to be reasonable - there is nothing in the Decision of the Council of Association to support the existence of such a right. Moreover, any employee must seek new employment in his spare time, and if it is necessary to attend an interview in that connection during working time, he must use up leave from his present employment. Thus, it was not necessary for Mr Tetik to sign off in order to seek new work. He could have sought new work during his holiday periods and attended personal interviews for that purpose, even though - in contrast to his employment hitherto - he now wished to seek employment on land.

25 In the light of this, the answer to the question submitted must in my view be that the third indent of Article 6(1) of Decision No 1/80 must be understood as meaning that a Turkish worker, irrespective of the fact that he has acquired free access to employment in a Member State, is not entitled to a residence permit in the Member State in question for the purpose of seeking new employment in the case where he has voluntarily terminated his employment and is consequently unemployed.

Conclusion

26 I therefore propose that the Court reply as follows to the question submitted:

The third indent of Article 6(1) of Decision No 1/80 of 19 September 1980 of the Council of Association established pursuant to the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 and approved on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, must be understood as meaning that a Turkish worker, irrespective of the fact that he has acquired free access to employment in a Member State, is not entitled to a residence permit in the Member State in question for the purpose of seeking new employment in the case where he has voluntarily terminated his employment and is consequently unemployed.

(1) - Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 and concluded on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (Collection of the Agreements concluded by the European Communities, Volume 3, p. 541).

(2) - OJ 1973 C 113 of 24 December 1973.

(3) - The Decision has not been published.

(4) - [1995] ECR I-1475.

(5) - See the judgment in Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461.

(6) - Cited in footnote 5. See also Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781 and Case C-434/93 Bozkurt, cited above.

(7) - Points 30 and 31 of the Opinion.