CELEX: C1997/357/02
Language: en
Date: 1997-11-22 00:00:00
Title: JUDGMENT OF THE COURT (Sixth Chamber) of 30 September 1997 in Case C-36/96 (reference for a preliminary ruling from the Bundesverwaltungsgericht): Faik Günaydin, Hatice Günaydin, Günes Günaydin, Seda Günaydin v. Freistaat Bayern (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' - Temporary and conditional work and residence permits - Application for extension of residence permit - Abuse of rights)

22 . 11 . 97          EN                  Official Journal of the European Communities                                       C 357/ 1
                                                                  I
                                                            (Information)
                                              COURT OF JUSTICE
                                                        COURT OF JUSTICE
               JUDGMENT OF THE COURT                                  the Community, as amended and updated by Council
                        (First Chamber)                               Regulation (EEC) No 2001 /83 of 2 June 1983, as
                                                                      amended by Council Regulation (EEC) No 1248/92 of
                     of 25 September 1997                             30 April 1992, precludes the competent institution of a
in Case C-307/96 (reference for a preliminary ruling from             Member State from applying on its own initiative the
the Tribunal du Travail, Brussels): Salvatore Baldone                 calculation rules contained in the amending Regulation to
v.    Institut  National      d'Assurance   Maladie-Invalidité        the detriment of the person concerned when the latter has,
                           (INAMI ) (»)                               before that Regulation entered into force on 1 June 1992,
                                                                      been awarded an invalidity pension in accordance with the
(Article 95 (a) of Regulation (ECC) No 1408/71 —                      provisions of Regulation (EEC) No 1408/71 that were
Regulation (EEC) No 1248/92 — Transitional provisions                 applicable prior to that date and the decision concerning
— Recalculation of a benefit on the competent                         the pension was rectified after 31 May 1992 .
institution 's own initiative — Rights of persons concerned)
                         ( 97/C 357/01 )                              (>) OJ C 354, 23 . 11 . 1996 .
                (Language of the case: French)
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)
                                                                                    JUDGMENT OF THE COURT
In Case C-307/96 : reference to the Court under Article 177                                    ( Sixth Chamber)
of the EC Treaty from the Tribunal du Travail ( Labour
Court), Brussels, for a preliminary ruling in the                                          of 30 September 1997
proceedings pending before that court between Salvatore               in Case C-36/96 (reference for a preliminary ruling from
Baldone and Institut National d'Assurance Maladie-Invali­             the Bundesverwaltungsgericht): Faik Günaydin, Hatice
dité ( INAMI) — on the interpretation of Article 95 ( a ) of          Günaydin, Günes Günaydin, Seda Günaydin v. Freistaat
Regulation ( EEC ) No 1408/71 of the Council of 14 June                                             Bayern ( l )
1971 on the application of social security schemes to
employed persons, to self-employed persons and to                     (EEC-Turkey Association Agreement — Decision of the
                                                                      Council of Association — Freedom of movement for
members of their families moving within the Community
( OJ, English Special Edition 1971 ( II ), p. 416 ), as               workers — Meaning of 'duly registered as belonging to
amended and updated by Council Regulation ( EEC )                     the labour force of a Member State' and 'legal
No 2001 /83 of 2 June 1983 ( OJ L 230, 22 . 8 . 1983 , p. 6 ),        employment' — Temporary and conditional work and
as amended by Council Regulation ( EEC ) No 1248/92 of                residence permits — Application for extension of residence
30 April 1992 ( OJ L 136, 19 . 5 . 1992, p. 7) — the Court                               permit — Abuse of rights)
( First Chamber), composed of: L. Sevón, President of the                                        ( 97/C 357/02 )
Chamber, D. A. O. Edward ( Rapporteur) and P. Jann,
Judges; M. B. Elmer, Advocate-General; R. Grass,                                     (Language of the case: German)
Registrar, has given a judgment on 25 September 1997, in
which it has ruled :
                                                                        (Provisional translation; the definitive translation will be
Article 95 (a) of Regulation (EEC) No 1408/71 of the                           published in the European Court Reports)
Council of 14 June 1971 on the application of social
security schemes to employed persons, to self-employed                In Case C-36/96 : reference to the Court under Article 177
persons and to members of their families moving within                of the EC Treaty from the Bundesverwaltungsgericht
 ---pagebreak--- 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