CELEX: C1997/357/03
Language: en
Date: 1997-11-22 00:00:00
Title: JUDGMENT OF THE COURT (Sixth Chamber) of 30 September 1997 in Case C-98/96 (reference for a preliminary ruling from the Verwaltungsgericht Darmstadt): Kasim Ertanir v. Land Hessen (EEC-Turkey Association Agreement - Decision of the Council of Association - Freedom of movement for workers - Meaning of 'duly registered as belonging to the labour force of a Member State' and 'legal employment' - Residence permit restricted to temporary employment as a specialist chef for a specific employer - Periods not covered by a residence and/or work permit - Calculation of periods of employment)

C 357/2                I EN |             Official Journal of the European Communities                                    22 . 11 . 97
(Federal Administrative Court ) ( Germany ), for a prelimi­                         JUDGMENT OF THE COURT
nary ruling in the proceedings pending before that court                                     ( Sixth Chamber)
between Faik Giinaydin, Hatice Giinaydin, Giines Gunay­
din, Seda Giinaydin and Freistaat Bayern — on the                                         of 30 September 1997
interpretation of Article 6 ( 1 ) of Decision No 1/80 of
19 September 1980 on the development of the                          in Case C-98/96 (reference for a preliminary ruling from
Association, adopted by the Association Council                      the Verwaltungsgericht Darmstadt): Kasim Ertanir v. Land
                                                                                                  Hessen (')
established by the Association Agreement between the
European Economic Community and Turkey — the Court                   (EEC-Turkey Association Agreement — Decision of the
( Sixth Chamber), composed of: G. F. Mancini, President              Council of Association — Freedom of movement for
of the Chamber, J. L. Murray, P. J. G. Kapteyn, H.                   workers — Meaning of 'duly registered as belonging to
Ragnemalm and R. Schintgen ( Rapporteur ), Judges; M. B.             the labour force of a Member State ' and 'legal
Elmer, Advocate-General; H. A. Riihl, Principal                      employment' — Residence permit restricted to temporary
Administrator, for the Registrar, has given a judgment on            employment as a specialist chef for a specific employer —
30 September 1997, in which it has ruled:                            Periods not covered by a residence and/or work permit —
                                                                                 Calculation of periods of employment)
                                                                                               ( 97/C 357/03 )
1 . Article 6 (1 ) of Decision No 1 /80 of 19 September
     1 980 on the development of the Association, adopted                            (Language of the case: German)
     by the Association Council established by the
     Association Agreement between the European
     Economic Community and Turkey, is to be interpreted               (Provisional translation; the definitive translation will be
     as meaning that a Turkish national who has been                           published in the European Court Reports)
     lawfully employed in a Member State for an
     uninterrupted period of more than three years in a
                                                                     In Case C-98/96 : reference to the Court under Article 177
     genuine and effective economic activity for the same
     employer and whose employment status is not                     of the EC Treaty from the Verwaltungsgericht
     objectively different to that of other employees                ( Administrative Court ), Darmstadt ( Germany ) for a
     employed by the same employer or in the sector                  preliminary ruling in the proceedings pending before that
                                                                     court between Kasim Ertanir and Land Hessen — on the
     concerned and exercising identical or comparable
     duties, is duly registered as belonging to the labour           interpretation of Article 6 of Decision No 1/80 of
     force of the State and is legally employed within the           19 September 1980 on the development of the
     meaning of that provision. A Turkish national in that           Association, adopted by the Association Council
     situation may therefore seek the renewal of his permit          established by the Association Agreement between the
     to reside in the host Member State notwithstanding              European Economic Community and Turkey — the Court
     the fact that he was permitted to take up paid                  ( Sixth Chamber), composed of: G. F. Mancini, President
     employment there only temporarily with a specific               of the Chamber, J. L. Murray, P. J. G. Kapteyn, H.
     employer for the purpose of acquainting himself with            Ragnemalm and R. Schintgen ( Rapporteur ), Judges; M. B.
     and preparing for employment in one of its                      Elmer, Advocate-General; H. A. Riihl, Principal
     subsidiaries in Turkey, and obtained work and                   Administrator, for the Registrar, has given a judgment on
     residence permits for that purpose only.                        30 September 1997, in which it has ruled :
                                                                     1 . Article 6 (3) of Decision No 1 /80 of 19 September
                                                                          1980 on the development of the Association, adopted
2 . The fact that a Turkish worker wishes to extend his                   by the Association Council established by the
     stay in the host Member State, although he expressly                 Association Agreement between the European
     accepted its restriction, does not constitute an abuse of            Economic Community and Turkey, is to be interpreted
     rights. The fact that he declared his intention of                   as meaning that it does not permit Member States to
     returning to Turkey after having been employed in the                adopt national legislation which excludes at the outset
     Member State for the purpose of perfecting his                       whole categories of Turkish migrant workers, such as
     vocational skills is not such as to deprive him of the               specialist chefs, from the rights conferred by the three
     rights deriving from Article 6 (1 ) of Decision No 1 /80             indents of Article 6 (1 ).
     unless it is established by the national court that that
     declaration was made with the sole intention of
     improperly obtaining work and residence permits for             2 . A Turkish national who has been lawfully employed in
     the host Member State.                                               a Member State for an uninterrupted period of more
                                                                          than one year as a specialist chef by the same
                                                                          employer is duly registered as belonging to the labour
                                                                          force of that Member State and is legally employed
(') OJ C 95 , 30 . 3 . 1996 .
                                                                          within the meaning of Article 6 (1 ) of Decision No 1 /
                                                                          80. A Turkish national in that situation may
                                                                          accordingly seek the renewal of his permit to reside in
                                                                          the host Member State notwithstanding the fact that
                                                                          he was advised when the work and residence permits
 ---pagebreak--- 22 . 11 . 97             EN                 Official Journal of the European Communities                                      C 357/3
     were granted that they were for a maximum of three                     sessions of the institution for 1996 to the extent that it
     years and restricted to specific work, in this case as a               does not provide for 1 2 ordinary plenary part-sessions
     specialist chef, for a specific employer.                              in Strasbourg in 1 996;
                                                                       2 . orders the Parliament to pay the costs;
3 . Article 6 (1 ) of Decision No 1 /80 is to be interpreted
     as requiring account to be taken, for the purpose of
     calculating the periods of legal employment referred to           3 . orders the Grand Duchy of Luxembourg to bear its
     in that provision, of short periods during which the                   own costs .
     Turkish worker did not hold a valid residence or work
     permit in the host Member State and which are not                 (') OJ C 351 , 30 . 12 . 1995 .
     covered by Article 6 (2) of that Decision, where the
     competent authorities of the host Member State have
     not called in question on that ground the legality of
     the residence of the worker in the country but have,
     on the contrary, issued him with a new residence or
     work permit.
                                                                                      JUDGMENT OF THE COURT
                                                                                                 ( Sixth Chamber)
(') OJ C 145 , 18 . 5 . 1996 .
                                                                                                of 2 October 1997
                                                                       in Case C-l/95 (reference for a preliminary ruling from
                                                                       the Bayerisches Verwaltungsgericht Ansbach): Hellen
                                                                                        Gerster v. Freistaat Bayern (')
                                                                       (Equal treatment for men and women — Public servant —
               JUDGMENT OF THE COURT                                    Part-time employment — Calculation of length of service)
                         of 1 October 1997                                                         ( 97/C 357/05 )
in Case C-345/95 : French Republic, supported by Grand
      Duchy of Luxembourg v. European Parliament (')                                   (Language of the case: German)
(Seat of the institutions — European Parliament — Part-
                                sessions)                                (Provisional translation; the definitive translation will be
                                                                                 published in the European Court Reports)
                            ( 97/C 357/04 )
                                                                       In Case C-l /95 : reference to the Court under Article 177
                 (Language of the case: French)                        of the EC Treaty from the Bayerisches Verwaltungsgericht
                                                                       ( Bavarian Administrative Court), Ansbach ( Germany), for
                                                                       a preliminary ruling in the proceedings pending before
                                                                       that court between Hellen Gerster and Freistaat Bayern —
  (Provisional translation; the definitive translation will be         on the interpretation of Article 119 of the EC Treaty,
          published in the European Court Reports)                     Council Directive 75/117/EEC of 10 February 1975 on the
                                                                       approximation of the laws of the Member States relating
                                                                       to the application of the principle of equal pay for men
In Case C-345/95 : French Republic ( Agents: Marc Perrin               and women ( OJ L 45, 19 . 2 . 1975 , p. 19 ) and Council
de Brichambaut and Denys Wibaux), supported by Grand                   Directive 76/207/EEC of 9 February 1976 on the
Duchy of Luxembourg (Agent: Nicolas Schmit ) v.                        implementation of the principle of equal treatment for
European Parliament ( Agent: Gregorio Garzón Clariana,                 men and women as regards access to employment,
assisted by Christian Pennera and Hans Krück ) —                       vocational training and promotion, and working
application for annulment of the vote of the European                  conditions ( OJ L 39, 14. 2. 1976, p. 40 ) — the Court
Parliament of 20 September 1995 adopting the calendar of               ( Sixth Chamber), composed of: J. L.Murray ( Rapporteur ),
part-sessions of the institution for 1996 — the Court,                 President of the Fourth Chamber, acting for the President
composed of: G. C. Rodriguez Iglesias, President, G. F.                of the Sixth Chamber, P. J. G. Kapteyn and G. Hirsch,
Mancini, J. C. Moitinho de Almeida, J. L. Murray and L.                Judges; A. La Pergola, Advocate-General; H. A. Rühl,
Sevón ( Presidents of Chambers ), C. N. Kakouris, P. J. G.             Principal Administrator, for the Registrar, has given a
Kapteyn, C. Gulmann, D. A. O. Edward, J. -P. Puissochet,               judgment on 2 October 1997, in which it has ruled:
G. Hirsch, P. Jann, H. Ragnemalm ( Rapporteur), M.
Wathelet and R. Schintgen, Judges; C. O. Lenz, Advocate-
General; H. von Holstein, Deputy Registrar, for the                    1 . Article 119 of the EC Treaty is to be interpreted as
Registrar, has given a judgment on 1 October 1997, in                       applying to employment relationships arising in the
which it:                                                                   public service.
                                                                       2 . A provision of national law which requires that, for
1 . annuls the vote of the European Parliament of                           the purposes of calculating the length of service of
     20 September 1995 adopting the calendar of part                        public servants, periods of employment during which