Baris Unal v Staatssecretaris van Justitie.
Date: 2011-09-29
28. The rights which are conferred on Turkish workers by the provisions set out in Article 6(1) of Decision No 1/80 are progressively extended in proportion to the duration of lawful paid employment and are intended to consolidate progressively the position of the persons concerned in the host Member State (see, inter alia, Case C-230/03 Sedef  [2006] ECR I‑157, paragraph 34).
30. According to the case-law of the Court, that right, in order to be effective, necessarily implies a concomitant right of residence for the person concerned (see, inter alia, Case C-383/03 Dogan  [2005] ECR I-6237, paragraph 14).
31. The legality of the employment of a Turkish national in the host Member State, within the meaning of the first indent of Article 6(1) of Decision No 1/80, presupposes a stable and secure situation as a member of the labour force of that Member State and, by virtue of this, implies an undisputed right of residence (Case C‑237/91 Kus  [1992] ECR I-6781, paragraph 22, and Altun , paragraph 53).
38. In that judgment, the Court stated first of all that, under the first indent of Article 6(1) of Decision No 1/80, a Turkish worker needs only to have been in legal employment for more than one year in order to be entitled to the renewal of his permit to work for the same employer, since that provision does not make that right dependant on any other condition, such as the circumstances under which the right of entry and residence was obtained ( Kus , paragraph 21).
39. On the basis of that finding, the Court held that a Turkish worker who has been employed for more than one year under a valid work permit had to be regarded as fulfilling the conditions laid down in the first indent of Article 6(1) of Decision No 1/80, even though his residence permit had initially been granted to him for a purpose other than that of engaging in paid employment ( Kus , paragraph 23).
41. As European Union law stands at present, Decision No 1/80 does not encroach upon the competence of the Member States to refuse Turkish nationals the right of entry into their territories and to take up first employment there. Nor does that decision preclude those Member States, in principle, from regulating the conditions under which those persons work for up to one year as provided for in the first indent of Article 6(1) of Decision No 1/80 (see Case C‑36/96 Günaydin  [1997] ECR I‑5143, paragraph 36).
42. Article 6(1) of Decision No 1/80 cannot, however, be construed as permitting a Member State to modify unilaterally the scope of the system of gradual integration of Turkish workers in the host Member State’s labour force, by denying a worker who has been permitted to enter its territory and who has lawfully pursued a genuine and effective economic activity for a continuous period of more than one year with the same employer the rights which the three indents of that provision confer on him progressively according to the duration of his employment (see Case C‑1/97 Birden  [1998] ECR I‑7747, paragraph 37).
43. Such an interpretation would render Decision No 1/80 meaningless and deprive it of any practical effect (see Case C‑188/00 Kurz  [2002] ECR I‑10691, paragraph 55).
44. The wording of Article 6(1) of Decision No 1/80 is general and unconditional in that it does not permit the Member States to restrict the rights which that provision confers directly on Turkish workers (see, inter alia, Birden , paragraph 38).
45. In that context, the Court has already held that periods in which a Turkish national is employed under a residence permit which was issued to him only as a result of fraudulent conduct which has led to his conviction are not based on a stable situation and that such employment cannot be regarded as having been secure in view of the fact that, during the periods in question, the person concerned was not legally entitled to a residence permit (see, inter alia, Case C‑285/95 Kol  [1997] ECR I‑3069, paragraph 27, and Case C‑37/98 Savas  [2000] ECR I‑2927, paragraph 61).
46. Likewise, a Turkish worker does not fulfil the requirement of having been engaged in legal employment in the host Member State where he was employed on the basis of a right of residence conferred on him only by the operation of national legislation permitting provisional residence in that State pending completion of the procedure for the grant of a residence permit (see, to that effect, Case C‑192/89 Sevince  [1990] ECR I‑3461, paragraph 31, and Kus , paragraph 18).
47. It is apparent from paragraphs 45 and 46 of the present judgment that the employment of a Turkish national under a residence permit which was issued to him as a result of fraudulent conduct which has led to a conviction or under a provisional residence permit which is valid only pending a final decision on his right of residence cannot give rise to any rights in favour of that national under Article 6(1) of Decision No 1/80.
50. In those circumstances, and as has been pointed out by the Advocate General at point 52 of her Opinion, not to accept that Mr Unal has been legally employed in the Netherlands for more than one year would be contrary to the general principle of respect for acquired rights upheld by the case-law of the Court. According to that principle, in the case where a Turkish national may legitimately rely on rights pursuant to a provision of Decision No 1/80, those rights are no longer dependent on the continuing existence of the circumstances which gave rise to them, as no condition of that nature is laid down by that decision (see Case C‑303/08 Bozkurt  [2010] ECR I‑0000, paragraph 41).
51. That finding is, moreover, supported by the case-law of the Court as set out in Altun . In that judgment the Court ruled that, given the connection which exists between the rights which the Turkish worker has by virtue of Decision No 1/80 and those on which the members of his family who have been allowed to join him may rely on the basis of Article 7 thereof, fraudulent conduct by that worker is capable of having effects as regards the legal rights of the members of his family. However, the Court stated that those effects must be determined with regard to the date on which the national authorities of the host Member State adopted a decision to withdraw the residence permit of that worker ( Altun , paragraphs 56 and 57). As is apparent from paragraph 59 of that judgment, the competent authorities are therefore required to ascertain whether those family members have, as at that date, acquired an autonomous right of access to the employment market of the host Member State and, as a corollary, a right to reside there. The Court added in paragraph 60 of that judgment that any other solution would be contrary to the principle of legal certainty.