CELEX: 62009CJ0014
Language: en
Date: 2010-02-04
Title: Judgment of the Court (Second Chamber) of 4 February 2010. # Hava Genc v Land Berlin. # Reference for a preliminary ruling: Verwaltungsgericht Berlin - Germany. # EEC-Turkey Association Agreement - Decision No 1/80 of the Association Council - Article 6(1) - Concept of ‘worker’ - Exercise of minor employment - Condition governing loss of acquired rights. # Case C-14/09.

Case C-14/09
      Hava Genc
      v
      Land Berlin
      (Reference for a preliminary ruling from the Verwaltungsgericht Berlin)
      (EEC-Turkey Association Agreement – Decision No 1/80 of the Association Council – Article 6(1) – Concept of ‘worker’ – Exercise of minor employment – Condition governing loss of acquired rights)
      Summary of the Judgment
      1.        International agreements – EEC-Turkey Association Agreement – Freedom of movement for persons – Workers – Right of Turkish
            nationals to extension of a residence permit
      (Decision No 1/80 of the EEC-Turkey Association Council, Art. 6(1))
      2.        International agreements – EEC-Turkey Association Agreement – Freedom of movement for persons – Workers – Access by Turkish
            nationals to employment of their choice in one of the Member States and concomitant right of residence
      (Decision No 1/80 of the EEC-Turkey Association Council, Art. 6(1))
      1.        A Turkish national who works for only a particularly limited number of hours for and under the instruction of an employer
         in return for remuneration, which covers only partially the minimum necessary for her subsistence, is a worker within the
         meaning of Article 6(1) of Decision No 1/80 of the EEC-Turkey Association Council, provided that her employment is real and
         genuine. It is for the national court to carry out the examinations of fact necessary to determine whether that is so in the
         case pending before it.
      
      Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be
         purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is that
         for a certain period of time a person performs services for and under the direction of another person in return for which
         he or she receives remuneration.
      
      In that regard, although the fact that a person works for only a very limited number of hours in the context of an employment
         relationship may be an indication that the activities performed are marginal and ancillary, the fact remains that, independently
         of the limited amount of the remuneration for and the number of hours of the activity in question, the possibility cannot
         be ruled out that, following an overall assessment of the employment relationship in question, that activity may be considered
         by the national authorities to be real and genuine, thereby allowing its holder to be granted the status of ‘worker’.
      
      The overall assessment of the employment relationship of the person concerned makes it necessary to take into account factors
         relating not only to the number of working hours and the level of remuneration but also to the right to 28 days of paid leave,
         to the continued payment of wages in the event of sickness, and to a contract of employment which is subject to a collective
         agreement, in conjunction with the extension of that person’s contractual relationship with the same undertaking. Those factors
         are capable of constituting an indication that the professional activity is real and genuine.
      
      (see paras 19, 26-28, 33, operative part 1)
      2.        A Turkish worker, within the meaning of Article 6(1) of Decision No 1/80 of the EEC-Turkey Association Council, may rely on
         the right to free movement which he derives from the Agreement between the EEC and Turkey, even if the purpose for which he
         entered the host Member State no longer exists. Where such a worker satisfies the conditions set out in Article 6(1) of that
         decision, his right of residence in the host Member State cannot be made subject to additional conditions as to the existence
         of interests capable of justifying residence or as to the nature of the employment.
      
      (see para. 44, operative part 2)
JUDGMENT OF THE COURT (Second Chamber)
      4 February 2010 (*)
      
      (EEC‑Turkey Association Agreement – Decision No 1/80 of the Association Council – Article 6(1) – Concept of ‘worker’ – Exercise of minor employment – Condition governing loss of acquired rights)
      In Case C‑14/09,
      REFERENCE for a preliminary ruling under Article 234 EC from the Verwaltungsgericht Berlin (Germany), made by decision of
         10 December 2008, received at the Court on 12 January 2009, in the proceedings
      
      Hava Genc
      v
      Land Berlin,
      THE COURT (Second Chamber),
      composed of J.N. Cunha Rodrigues (Rapporteur), President of the Chamber, P. Lindh , A. Rosas, A. Ó Caoimh and A. Arabadjiev,
         Judges,
      
      Advocate General: P. Mengozzi,
      Registrar: R. Grass,
      having regard to the written procedure,
      after considering the observations submitted on behalf of:
      –        the German Government, by M. Lumma and N. Graf Vitzthum, acting as Agents,
      –        the Danish Government, by J. Liisberg and R. Holdgaard, acting as Agents,
      –        the Commission of the European Communities, by V. Kreuschitz and G. Rozet, acting as Agents,
      having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
      gives the following
      Judgment
      1        The present reference for a preliminary ruling concerns the interpretation of Article 6(1) of Decision No 1/80 of the Association
         Council of 19 September 1980 on the development of the EEC‑Turkey Association (‘Decision No 1/80’). The Association Council
         was set up by the Agreement establishing an Association between the European Economic Community and Turkey, signed at 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, and 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 EEC‑Turkey Association Agreement’).
      
      2        The reference has been made in the context of proceedings between Ms Genc, a Turkish national, and Land Berlin in respect
         of the refusal to extend the validity of a residence permit for Germany.
      
       Legal context
      3        Article 6(1) of Decision No 1/80 is worded as follows:
      
      ‘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.’
      4        Article 7 of that decision provides:
      
      ‘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.’
      
      5        Article 14(1) of Decision No 1/80 states:
      
      ‘The provisions of this section shall be applied subject to limitations justified on grounds of public policy, public security
         or public health.’
      
       The dispute in the main proceedings and the questions referred for a preliminary ruling
      6        Ms Genc, who was born in 1966, entered Germany on 7 July 2000 on a visa in order to join her spouse, a Turkish national, who
         was already living in that Member State.
      
      7        Over the following years, she obtained a residence permit and a work permit, the latter valid for an unlimited period. Her
         husband worked initially as an employed person and, on 5 May 2003, began working in a self‑employed capacity.
      
      8        The spouses, who, until 12 January 2004, were registered for official purposes as having a joint place of residence, separated
         at an unspecified date. On 1 August 2005, Ms Genc was granted for the last time a residence permit valid for two years in
         connection with family reunification on the basis of Paragraph 30 of the Law on residence of foreigners (Aufenthaltsgesetz)
         of 30 July 2004 (BGBl. 2004 I, p. 1950).
      
      9        Since 18 June 2004, Ms Genc has been working as a cleaner at L. Glas- und Gebäudereinigungsservice GmbH. According to the
         contract of employment, which was put down in writing on 9 November 2007, the working time per week is 5.5 hours at an hourly
         rate of EUR 7.87. That contract provides for entitlement to 28 days of paid leave and continued payment of wages in the event
         of sickness. The contract is, moreover, subject to the relevant collective agreement. For this employment, Ms Genc receives
         monthly wages of approximately EUR 175.
      
      10      On 7 August 2007, Ms Genc applied for a further extension of her residence permit. At that time, she was still receiving,
         in addition to the income from her employment, social security benefits under Book II of the German Social Security Code (Sozialgesetzbuch
         II). Those benefits stopped in May 2008 at Ms Genc’s request.
      
      11      By decision of 4 February 2008, the Landesamt für Bürger- und Ordnungsangelegenheiten Berlin (Berlin Regional Authority for
         Civic Matters) refused to extend the residence permit and threatened Ms Genc with deportation. According to that administrative
         authority, Ms Genc was unable to rely on Decision No 1/80 as she did not fulfil the conditions set out in Article 6 thereof.
         In view of the particularly limited number of hours spent working for L. Glas- und Gebäudereinigungsservice GmbH, the work
         done by Ms Genc could not, according to the Landesamt, be regarded as constituting legal employment. Nor had she acquired
         rights under the first indent of the first paragraph of Article 7 of Decision No 1/80 in view of the fact that her spouse,
         as a self-employed person, had not been an employed person belonging to the labour force since May 2003. Lastly, there was
         no interest deserving of protection which could justify the applicant in the main proceedings remaining in the territory of
         the Federal Republic of Germany.
      
      12      On 22 February 2008, Ms Genc brought an action before the Verwaltungsgericht (Administrative Court) Berlin against that decision.
         She also lodged an application for interim legal protection, which was granted to her.
      
      13      Ms Genc subsequently submitted a contract of employment for an indefinite period, dated 30 April 2008 and valid from 2 May
         2008, as an office assistant for 25 hours per week at a net monthly salary of EUR 422.
      
      14      Taking the view that, in those circumstances, the resolution of the dispute required an interpretation of European Union law,
         the Verwaltungsgericht Berlin decided to stay the proceedings and to refer the following questions to the Court for a preliminary
         ruling:
      
      ‘1.      Is a Turkish national who is duly registered as belonging to the labour force of a Member State and who has, for an extended
         period for and under the instruction of another, performed services of a certain economic value in return for which he receives
         remuneration a “worker” for the purposes of Article 6(1) of Decision No 1/80 ..., even if the time spent in that activity
         amounts to only approximately 14% of the collectively agreed working time of a full-time worker (in the present case, 5.5
         hours as against a 39-hour working week) and the income earned from that activity by itself covers only approximately 25%
         of the amount determined under the national law of the Member State to be necessary for subsistence (in the present case,
         approximately EUR 175 as against approximately EUR 715)?
      
      If Question 1 is to be answered in the affirmative:
      2.      Can a Turkish national then also rely on the freedom of movement under the EEC‑Turkey Association Agreement as a worker within
         the terms of Article 6(1) of Decision No 1/80 if the purpose of the stay for which he entered the country is no longer applicable
         (in the present case, joining a spouse for the purpose of family reunification), if there are no other interests for remaining
         in the contracting State which merit protection, and if the possibility of continuing to engage in a minimal activity in the
         contracting State cannot be regarded as constituting a ground for remaining there, in particular because no serious efforts
         have been made by that Turkish national to achieve stable economic integration without reliance on social benefits to ensure
         the means of subsistence?’
      
       The questions referred for a preliminary ruling
       Question 1
      15      By this question, the national court asks, in essence, whether a Turkish national who is duly registered as belonging to the
         labour force of a Member State and who has, for an extended period for and under the instruction of another, performed services
         in return for which he receives remuneration a ‘worker’ for the purposes of Article 6(1) of Decision No 1/80, notwithstanding
         the fact that the working time spent in that activity amounts to approximately 14% of the working time provided for in the
         collective agreement for a worker working on a full-time basis and the income which he derives therefrom corresponds to 25%
         of the amount determined under the national law of the Member State concerned to be the minimum necessary for subsistence.
      
      16      In accordance with Article 6(1) of Decision No 1/80, Turkish nationals who wish to claim, in the host Member State, the rights
         provided for in that provision must fulfil three conditions: that is, they must have the status of workers, be duly registered
         as belonging to the labour force, and be in legal employment.
      
      17      The Court has consistently inferred from the wording of Article 12 of the EEC‑Turkey Association Agreement and from Article
         36 of the Additional Protocol, signed in Brussels on 23 November 1970, annexed to that agreement and concluded, approved and
         confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (JO 1972 L 293, p. 1; an English
         version of the Additional Protocol is published at OJ 1977 L 361, p. 60), as well as from the objective of Decision No 1/80,
         that the principles laid down in Articles 48 and 49 of the EC Treaty (now, after amendment, Articles 39 EC and 40 EC) and
         in Article 50 of the EC Treaty (now Article 41 EC) must be extended, so far as possible, to Turkish nationals who enjoy the
         rights conferred by that decision (see, to that effect, inter alia, Case C‑434/93 Bozkurt [1995] ECR I‑1475, paragraphs 14, 19 and 20, and Case C‑275/02 Ayaz [2004] ECR I‑8765, paragraph 44).
      
      18      In order to ascertain whether the first condition laid down in Article 6(1) of Decision No 1/80 is fulfilled, it is, accordingly,
         necessary to refer to the interpretation of the concept of ‘worker’ in European Union law.
      
      19      As the Court has consistently held, the concept of ‘worker’ within the meaning of Article 39 EC has an independent meaning
         for the purposes of European Union law and must not be interpreted narrowly. Any person who pursues activities which are real
         and genuine, to the exclusion of activities on such a small scale as to be purely marginal and ancillary, must be regarded
         as a ‘worker’. The essential feature of an employment relationship is, according to the Court’s case-law, that for a certain
         period of time a person performs services for and under the direction of another person in return for which he receives remuneration
         (see, inter alia, Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraphs 16 and 17, and Case C‑228/07 Petersen [2008] ECR I‑6989, paragraph 45).
      
      20      Neither the origin of the funds from which the remuneration is paid nor the limited amount of that remuneration, nor indeed
         the fact that the person in question seeks to supplement that remuneration by other means of subsistence such as financial
         assistance drawn from the public funds of the State in which he resides, can have any consequence in regard to whether or
         not the person is a ‘worker’ for the purposes of European Union law (see, to that effect, Case 139/85 Kempf [1986] ECR 1741, paragraph 14; Case 344/87 Bettray [1989] ECR 1621, paragraph 15; and Case C‑10/05 Mattern and Cikotic [2006] ECR I‑3145, paragraph 22).
      
      21      Having established that Ms Genc performs services for and under the direction of an employer in return for remuneration, the
         national court has ipso facto established the existence of the constituent elements of any employment relationship, namely subordination and the payment
         of remuneration in return for services rendered (see, to that effect, Case C‑456/02 Trojani [2004] ECR I‑7573, paragraph 22).
      
      22      The national court is, however, uncertain whether, in view of the particularly low number of hours of work performed by the
         person concerned and of her remuneration, which covers only partially the minimum necessary for subsistence, a minor activity
         such as that performed by Ms Genc is capable of entitling her to the status of worker within the meaning of the Court’s case-law.
      
      23      In that regard, it should be borne in mind that, in Case C-444/93 Megner and Scheffel [1995] ECR I-4741, the Court was called on to decide, inter alia, whether two European Union nationals employed in Germany
         as cleaners with a 10‑hour working week and remuneration not exceeding, per month, one seventh of the monthly reference amount
         belonged to the working population within the meaning of Council Directive 79/7/EEC of 19 December 1978 on the progressive
         implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24).
      
      24      In that judgment, the Court rejected the argument of the German Government that persons in minor employment are not part of
         the working population because the small earnings which they receive from such employment are not sufficient to satisfy their
         needs (Megner and Scheffel, paragraphs 17 and 18).
      
      25      The Court held that the fact that a worker’s earnings do not cover all his needs cannot preclude him from being a member of
         the working population and that employment which yields an income lower than the minimum required for subsistence or normally
         does not exceed even 10 hours a week does not prevent the person in such employment from being regarded as a worker within
         the meaning of Article 39 EC (see, to that effect, Case C‑213/05 Geven [2007] ECR I‑6347, paragraph 27, and Megner and Scheffel, paragraph 18).
      
      26      Although the fact that a person works for only a very limited number of hours in the context of an employment relationship
         may be an indication that the activities performed are marginal and ancillary (Case C‑357/89 Raulin [1992] ECR I-1027, paragraph 14), the fact remains that, independently of the limited amount of the remuneration for and
         the number of hours of the activity in question, the possibility cannot be ruled out that, following an overall assessment
         of the employment relationship in question, that activity may be considered by the national authorities to be real and genuine,
         thereby allowing its holder to be granted the status of ‘worker’ within the meaning of Article 39 EC.
      
      27      The overall assessment of Ms Genc’s employment relationship makes it necessary to take into account factors relating not only
         to the number of working hours and the level of remuneration but also to the right to 28 days of paid leave, to the continued
         payment of wages in the event of sickness, and to a contract of employment which is subject to the relevant collective agreement,
         in conjunction with the fact that her contractual relationship with the same undertaking has lasted for almost four years.
      
      28      Those factors are capable of constituting an indication that the professional activity in question is real and genuine.
      
      29      The national court states, however, that, in the field of the interpretation of the concept of ‘worker’, the Court’s case‑law
         does not contain a threshold, determined on the basis of working time and level of remuneration, below which an activity would
         have to be regarded as being marginal and ancillary, and that this contributes to a lack of precision in the concept of marginal
         and ancillary activity.
      
      30      In that regard, it should be borne in mind that the procedure for referring questions for a preliminary ruling under Article
         234 EC establishes a relationship of close cooperation between the national courts and the Court of Justice, based on the
         assignment to each of different functions, and constitutes an instrument by means of which the Court provides the national
         courts with the criteria for the interpretation of European Union law which they require in order to dispose of disputes which
         they are called upon to resolve (Joined Cases C‑260/00 to C-263/00 Lohmann and Medi Bayreuth [2002] ECR I‑10045, paragraph 27, and Case C‑259/05 Omni Metal Service [2007] ECR I‑4945, paragraph 16).
      
      31      It is one of the essential characteristics of the system of judicial cooperation established under Article 234 EC that the
         Court replies in rather abstract and general terms to a question on the interpretation of European Union law referred to it,
         while it is for the referring court to give a ruling in the dispute before it, taking into account the Court’s reply (Case
         C‑162/06 International Mail Spain [2007] ECR I‑9911, paragraph 24).
      
      32      The analysis of the consequences which all those factors which characterise an employment relationship, in particular those
         set out in paragraph 27 above, may have for the finding as to whether Ms Genc’s employment is real and genuine and, therefore,
         for her status as a worker is a matter coming within the jurisdiction of the national court. The national court alone has
         direct knowledge of the facts giving rise to the dispute and is, consequently, best placed to make the necessary determinations.
      
      33      Having regard to the foregoing considerations, the answer to the first question is that a person in a situation such as that
         of the applicant in the main proceedings is a worker within the meaning of Article 6(1) of Decision No 1/80, provided that
         the employment in question is real and genuine. It is for the national court to carry out the examinations of fact necessary
         to determine whether that is so in the case pending before it.
      
       Question 2
      34      By this question, the national court asks, in essence, whether a Turkish worker, within the meaning of Article 6(1) of Decision
         No 1/80, may rely on the right to free movement which he derives from the EEC‑Turkey Association Agreement even if the purpose
         for which he entered the host Member State no longer exists, if there are no other interests justifying his remaining in the
         territory of that State which merit protection, and if the possibility of continuing to pursue a minor activity there cannot
         be regarded as constituting a sufficient ground for his remaining in the territory of that State.
      
      35      It is necessary to point out at the outset that, having formulated the second question by referring to ‘a [Turkish] worker
         within the terms of Article 6(1) of Decision No 1/80’, the national court bases its question on the premiss that, in the present
         case, Ms Genc fulfils the conditions imposed by that provision: that is, as well as being a worker, she is duly registered
         as belonging to the labour force and is in legal employment.
      
      36      According to well-established case‑law, it follows both from the primacy of European Union law over Member States’ domestic
         law and from the direct effect of a provision such as Article 6 of Decision No 1/80 that a Member State is not permitted to
         modify unilaterally the scope of the system of gradually integrating Turkish workers into the host Member State’s labour force
         (see, inter alia, Case C‑1/97 Birden [1998] ECR I‑7747, paragraph 37, and Case C‑188/00 Kurz [2002] ECR I‑10691, paragraph 66).
      
      37      Member States cannot, therefore, apply a measure relating to the residence of a Turkish national in their territory which
         is liable to impede the exercise of rights expressly granted by European Union law to such a national.
      
      38      Where the Turkish national fulfils the conditions laid down by a provision of Decision No 1/80 and, accordingly, is already
         duly integrated in a Member State, that Member State no longer has the power to restrict application of those rights, as that
         decision would otherwise be rendered redundant (see, inter alia, Birden, paragraph 37, and Kurz, paragraph 68).
      
      39      More specifically, the exercise of the rights which Turkish nationals derive from Decision No 1/80 is not subject to any condition
         relating to the ground on which rights of entry and residence were originally granted in the host Member State (see, to that
         effect, Case C‑237/91 Kus [1992] ECR I‑6781, paragraphs 21 and 22, and Case C-294/06 Payir and Others [2008] ECR I‑203, paragraph 40).
      
      40      In those circumstances, Article 6 of Decision No 1/80 does not make the recognition of a Turkish worker’s right of access
         to the labour market of the host Member State and, concomitantly, that worker’s right of residence in that State dependent
         on the circumstances in which the rights of entry and residence were obtained by that worker.
      
      41      The national court points out, in addition, that an extension of the period of Ms Genc’s residence in Germany cannot be justified
         by any interest which merits protection or by the possibility of pursuing a minor economic activity.
      
      42      Suffice it to recall in that regard that there can be only two kinds of restrictions on the rights which Decision No 1/80
         confers on Turkish nationals who fulfil the conditions laid down in that decision, namely, either a restriction based on the
         fact that the presence of the Turkish migrant in the host Member State constitutes, by reason of his own personal conduct,
         a genuine and serious threat to public policy, public security or public health, within the terms of Article 14(1) of that
         decision, or a restriction based on the fact that the person concerned has left the territory of that State for a significant
         length of time without legitimate reason (see, to that effect, Case C‑453/07 Er [2008] ECR I‑7299, paragraph 30).
      
      43      The exhaustive nature of the restrictions set out in the preceding paragraph would be undermined if the national authorities
         were able to make the interested person’s right of residence subject to additional conditions as to the existence of interests
         capable of justifying residence or as to the nature of the employment (see, to that effect, Case C‑337/07 Altun [2008] ECR I‑0000, paragraph 63).
      
      44      Having regard to the foregoing, the answer to the second question is that a Turkish worker, within the meaning of Article
         6(1) of Decision No 1/80, may rely on the right to free movement which he derives from the EEC‑Turkey Association Agreement
         even if the purpose for which he entered the host Member State no longer exists. Where such a worker satisfies the conditions
         set out in Article 6(1) of that decision, his right of residence in the host Member State cannot be made subject to additional
         conditions as to the existence of interests capable of justifying residence or as to the nature of the employment.
      
       Costs
      45      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
      
      On those grounds, the Court (Second Chamber) hereby rules:
      1.      A person in a situation such as that of the applicant in the main proceedings is a worker within the meaning of Article 6(1)
            of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council set up
            by the Agreement establishing an Association between the European Economic Community and Turkey, provided that the employment
            in question is real and genuine. It is for the national court to carry out the examinations of fact necessary to determine
            whether that is so in the case pending before it.
      2.      A Turkish worker, within the meaning of Article 6(1) of Decision No 1/80, may rely on the right to free movement which he
            derives from the Agreement establishing an Association between the European Economic Community and Turkey, even if the purpose
            for which he entered the host Member State no longer exists. Where such a worker satisfies the conditions set out in Article
            6(1) of that decision, his right of residence in the host Member State cannot be made subject to additional conditions as
            to the existence of interests capable of justifying residence or as to the nature of the employment.
      [Signatures]
      * Language of the case: German.