Ömer Nazli, Caglar Nazli and Melike Nazli v Stadt Nürnberg.
Date: 2000-02-10
27 First, it is evident from the express terms of Article 6(1) that, in contrast to the first two indents, which merely set out the arrangements under which a Turkish national who has lawfully entered the territory of a Member State and has been authorised there to engage in employment may work in the host Member State, by continuing to work for the same employer after one year's legal employment (first indent) or by responding, after three years of legal employment and subject to the priority to be given to workers from the Member States, to an offer of employment made by another employer for the same occupation (second indent), the third indent confers on a Turkish worker not only the right to respond to a prior offer but also the unconditional right to seek and take up any employment freely chosen by him (Case C-171/95 Tetik v Land Berlin [1997] ECR I-329, paragraph 26).
28 From the moment that the Turkish worker referred to in Article 6(1) enjoys in the host Member State, after four years of legal employment, free access to any paid employment of his choice in accordance with the third indent of that provision, not only does the direct effect attaching to Article 6(1) mean that he derives an individual employment right directly from Decision No 1/80 but also, in order for that right to be fully effective, there is necessarily a corresponding right of residence founded likewise on Community law (Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461, paragraphs 29 and 31, Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781, paragraph 33, and Tetik, cited above, paragraphs 26, 30 and 31).
30 However, it is settled case-law that Article 6(1) cannot be construed as permitting a Member State to modify unilaterally the scope of the system of gradually integrating Turkish workers into the host State's labour force (see, most recently, Case C-1/97 Birden v Stadtgemeinde Bremen [1998] ECR I-7747, paragraph 37), so that that State no longer has the power to adopt measures regarding residence which are such as to impede the exercise of the rights expressly granted by Decision No 1/80 to someone who fulfils its conditions and, by the same token, is already duly integrated in the host Member State.
31 Second, it should be noted, having regard to the reasoning of the national court, that, as is apparent from the case-law, the concept of being duly registered as belonging to the labour force referred to in Article 6(1) of Decision No 1/80 must be regarded as applying to all workers who have complied with the conditions laid down by law and regulation in the host Member State and are thus entitled to pursue an occupation in its territory (Birden, cited above, paragraph 51).
32 Entitlement to the rights enshrined in the three indents of Article 6(1) is therefore subject only to the condition that the worker has complied with the legislation of the host Member State governing entry into its territory and pursuit of employment.
35 Third, in order not to negate the right of a Turkish worker to free access to any paid employment of his choice within the meaning of the third indent of Article 6(1) of Decision No 1/80, that provision must be interpreted as not relating merely to engaging in employment but as granting a Turkish worker already duly integrated into the labour force of the host Member State an unconditional right to employment which implies the right to give up one job in order to seek another which he may freely choose.
37 It is true that a Turkish national is not entitled to remain in the host Member State if he has reached retirement age or has suffered an industrial accident as a result of which he is totally and permanently unfit for further employment. In cases of that kind, the person concerned must be regarded as having left the labour force of that Member State for good, so that the right of residence which he claims has no link even with future employment (see Case C-434/93 Bozkurt v Staatssecretaris van Justitie [1995] ECR I-1475, paragraphs 39 and 40).
38 The Court has held, however, that Article 6 of Decision No 1/80 relates not only to the situation where a Turkish worker is in active employment but also to the situation where he is incapacitated for work, provided that his incapacity is only temporary, that is to say it does not affect his fitness to continue exercising his right to employment granted by that decision, albeit after a temporary break in his employment relationship (see Bozkurt, cited above, paragraphs 38 and 39).
40 In particular, while legal employment for an uninterrupted period of one, three or four years respectively is in principle required in order for the rights provided for in the three indents of Article 6(1) to be established, the third indent of that provision implies the right for the worker concerned, who is already duly integrated into the labour force of the host Member State, to take a temporary break from work. Such a worker thus continues to be duly registered as belonging to the labour force of that State provided that he actually finds another job within a reasonable period, and therefore enjoys a right to reside there during that period.
41 It follows from the foregoing considerations that the temporary break in the period of active employment of a Turkish worker such as Mr Nazli while he is detained pending trial is not in itself capable of causing him to forfeit the rights which he derives directly from the third indent of Article 6(1) of Decision No 1/80, provided that he finds a new job within a reasonable period after his release.
44 Except where the person concerned has definitively ceased to be duly registered as belonging to the labour force of the host Member State or has exceeded a reasonable time-limit for entering into a new employment relationship after a temporary period without work, the national authorities are unable to restrict the rights which Decision No 1/80 confers directly on Turkish workers already duly integrated in the host Member State save, where appropriate, on the basis of Article 14(1) of that decision, whose interpretation is the subject of the second question referred for a preliminary ruling.
50 In order to answer this question, it should be remembered first of all that under Article 12 of the Association Agreement the Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers between them.
51 Article 36 of the Additional Protocol, signed on 23 November 1970, annexed to the Association Agreement and concluded by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1973 C 113, p. 17, hereinafter the Additional Protocol) lays down the timetable for the progressive attainment of freedom of movement for workers between the Member States of the Community and Turkey and states that the Council of Association shall decide on the rules necessary to that end.
52 On the basis of Article 12 of the Association Agreement and Article 36 of the Additional Protocol, the Association Council, which was established by the Association Agreement in order to ensure the implementation and progressive development of the Association, first adopted, on 20 December 1976, Decision No 2/76, which is presented in Article 1 thereof as constituting a first stage in securing freedom of movement for workers between the Community and Turkey.
53 According to the third recital in its preamble, Decision No 1/80 is designed to improve, in the social field, the treatment accorded to workers and members of their families in relation to the arrangements introduced by Decision No 2/76.
54 The provisions of Section 1 of Chapter II of Decision No 1/80 thus constitute a further stage in securing freedom of movement for workers on the basis of Articles 48 and 49 of the EC Treaty (now, after amendment, Articles 39 EC and 40 EC) and Article 50 of the EC Treaty (now Article 41 EC) (Bozkurt, cited above, paragraphs 14 and 19, Tetik, cited above, paragraph 20, and Case C-210/97 Akman v Oberkreisdirektor des Rheinisch-Bergischen-Kreises [1998] ECR I-7519, paragraph 20).
55 The Court has consistently inferred from the wording of Article 12 of the Association Agreement and Article 36 of the Additional Protocol, as well as from the objective of Decision No 1/80, that the principles enshrined in Articles 48, 49 and 50 of the Treaty must be extended, so far as possible, to Turkish nationals who enjoy the rights conferred by Decision No 1/80 (see, to that effect, Bozkurt, paragraphs 14, 19 and 20, Tetik, paragraphs 20 and 28, Birden, paragraph 23, Case C-36/96 Günaydin v Freistaat Bayern [1997] ECR I-5143, paragraph 21, and Case C-98/96 Ertanir v Land Hessen [1997] ECR I-5179, paragraph 21).
56 It follows that, when determining the scope of the public policy exception provided for by Article 14(1) of Decision No 1/80, reference should be made to the interpretation given to that exception in the field of freedom of movement for workers who are nationals of a Member State of the Community. Such an approach is all the more justified because Article 14(1) is formulated in almost identical terms to Article 48(3) of the Treaty.
57 In the context of Community law and, in particular, of Article 48(3) of the Treaty, it has been consistently held that the concept of public policy presupposes, in addition to the disturbance of the social order which any infringement of the law involves, the existence of a genuine and sufficiently serious threat to one of the fundamental interests of society (see, for example, Case 30/77 Regina v Bouchereau [1977] ECR 1999, paragraph 35).
58 While a Member State may consider that the use of drugs constitutes a danger for society such as to justify, in order to maintain public order, special measures against aliens who contravene its laws on drugs, the public policy exception, like all derogations from a fundamental principle of the Treaty, must nevertheless be interpreted restrictively, so that the existence of a criminal conviction can justify expulsion only in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy (see, most recently, Case C-348/96 Calfa [1999] ECR I-11, paragraphs 22, 23 and 24).
59 The Court has thus concluded that Community law precludes the expulsion of a national of a Member State on general preventive grounds, that is to say an expulsion ordered for the purpose of deterring other aliens (see, in particular, Case 67/74 Bonsignore v Stadt Köln [1975] ECR 297, paragraph 7), especially where that measure has automatically followed a criminal conviction, without any account being taken of the personal conduct of the offender or of the danger which that conduct represents for the requirements of public policy (Calfa, cited above, paragraph 27).
60 As has already been pointed out in paragraph 56 of this judgment, Article 14(1) of Decision No 1/80 imposes on the competent national authorities limits analogous to those which apply in the case of a measure of that kind against a national of a Member State.
61 Accordingly, a Turkish national can be denied, by means of expulsion, the rights which he derives directly from Decision No 1/80 only if that measure is justified because his personal conduct indicates a specific risk of new and serious prejudice to the requirements of public policy.
63 Thus, having regard to the principles which have been laid down in the context of freedom of movement for workers who are nationals of a Member State and which are applicable by analogy to Turkish workers enjoying the rights accorded by Decision No 1/80, a measure expelling an alien as a matter of principle ordered on general preventive grounds following a criminal conviction for a specific offence must be considered to be incompatible with Article 14(1) of that decision.