Ahmet Bozkurt v Staatssecretaris van Justitie.
Date: 1995-06-06
14 It should first be noted that Decision No 2/76 is presented, in Article 1 thereof, as constituting a first stage in securing freedom of movement for workers between the Community and Turkey which was to last for four years as from 1 December 1976. Section 1 of Chapter II, headed "Social Provisions", of Decision No 1/80, which includes Article 6, constitutes a further stage in securing freedom of movement for workers and has applied, pursuant to Article 16, since 1 December 1980. As from that date, Article 6 of Decision No 1/80 has replaced the corresponding, less favourable, provisions of Decision No 2/76. That being so, for the purposes of giving a helpful answer to the questions submitted to the Court, and having regard to the times at which the facts summarized above occurred, it is solely to Article 6 of Decision No 1/80 that reference should be made.
The first question
16 In its judgment in Case 9/88 Lopes da Veiga v Staatsecretaris van Justitie [1989] ECR 2989, paragraph 17, the Court ruled that in the case of a worker who is a national of a Member State and who is permanently employed on board a ship flying the flag of another Member State, in that instance the Netherlands, in deciding whether the legal relationship of employment could be located within the territory of the Community or retained a sufficiently close link with that territory, for the purposes of the application of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), it was for the national court to take into account the following circumstances apparent from the case-file before the Court: the fact that the applicant worked on board a vessel registered in the Netherlands in the employment of a shipping company established in the Netherlands, that he was hired in the Netherlands, that the employment relationship between him and his employer was subject to Netherlands law and, finally, that he was insured under the social security system of the Netherlands and paid income tax there.
17 Mr Bozkurt and the Commission consider that the same criteria should be applied in this case. The Commission maintains, in particular, that the Court' s decision in Lopes da Veiga falls to be applied because Article 12 of the Agreement requires the contracting parties to be guided by Articles 48, 49 and 50 of the EEC Treaty for the purpose of progressively securing freedom of movement for workers between them.
18 In contrast, the German, Greek and Netherlands Governments and the United Kingdom consider that the Lopes da Veiga judgment is concerned with the interpretation of a fundamental concept of Community law in the field of freedom of movement for workers and they oppose the view that that judgment can be used to interpret provisions in an association agreement, with its more modest objectives, governing the situation of a national of a non-member country in the labour force of a Member State.
19 On that point, it should first be noted 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.
20 In order to ensure compliance with that objective, it would seem to be essential to transpose, so far as is possible, the principles enshrined in those articles to Turkish workers who enjoy the rights conferred by Decision No 1/80.
21 Article 6(1) is confined to regulating, so far as access to employment is concerned, the situation of a Turkish worker who already belongs to the legitimate labour force of a Member State.
22 In order to determine, for the purposes of the application of Article 6(1), whether a Turkish worker is to be regarded as belonging to the labour force of a Member State, it must, in accordance with the principle laid down in Article 12 of the Agreement and by analogy with the situation of a worker who is a national of a Member State employed in another Member State, be ascertained, as the Court has held, in particular in the Lopes da Veiga judgment, whether the legal relationship of employment can be located within the territory of a Member State or retains a sufficiently close link with that territory.
23 It is for the national court to determine whether the employment relationship of the applicant in the main proceedings as an international lorry-driver retained a sufficiently close link with the territory of the Netherlands, and, in so doing, to take account in particular of the place where he was hired, the territory on which the paid employment was based and the applicable national legislation in the field of employment and social security law.
26 It should be borne in mind, as the Court pointed out in its judgment in Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461, paragraph 30, that legality of employment for the purposes of Article 6(1) presupposes a stable and secure situation as a member of the labour force of a Member State.
28 Where those conditions are satisfied, Article 6(1) of Decision No 1/80, which grants Turkish workers the right, after specified periods of legal employment, to continue working for the same employer or in the same occupation for an employer of his choice, or to enjoy free access to any paid employment of his choice, necessarily implies the existence of a right of residence for the person concerned, since otherwise the right of access to the labour force and the right to work as an employed person would be deprived of all effect (see, to that effect, the judgments in Sevince, cited above, paragraph 29, and Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781, paragraphs 29 and 30).
29 Article 6(1) of Decision No 1/80 does not subject recognition of those rights to the condition that Turkish nationals must establish the legality of their employment by possession of any specific administrative document, such as a work permit or residence permit, issued by the authorities of the host country.
30 It follows that the rights conferred under Article 6(1) on Turkish nationals who are already duly integrated into the labour force of a Member State are accorded to such nationals irrespective of whether or not the competent authorities have issued administrative documents which, in this context, can only be declaratory of the existence of those rights and cannot constitute a condition for their existence.
38 Article 6(2) is intended only to regulate the consequences, for the application of Article 6(1), of certain breaks in employment. Accordingly, annual holidays and absences for reasons of maternity or an accident at work or short periods of sickness are treated as periods of legal employment, particularly in calculating the
length of the period of legal employment required in order to acquire the right of free access to any paid employment. Periods of unemployment and long absences on account of sickness, which are not treated as periods of legal employment, are taken into account only in order to ensure that rights acquired by the worker as the result of preceding periods of employment are preserved. Consequently, the provisions of Article 6(2) merely ensure the continuation of the right to employment and necessarily presuppose fitness to continue working, even if only after a temporary interruption.
39 It follows 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, as in the present case, become totally and permanently incapacitated for work.
40 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.
42 The answer to the fourth question must therefore be that Article 6(2) of Decision No 1/80 does not confer on a Turkish national who has belonged to the legitimate labour force of a Member State the right to remain in the territory of that State following an accident at work rendering him permanently incapacitated for work.