Hayriye Eroglu v Land Baden-Württemberg.
Date: 1994-10-05
10 Decision No 1/80 does not encroach upon the power of the Member States to regulate both the entry into their territory of Turkish nationals and the conditions of their first employment, but makes provision exclusively, particularly in Article 6, for the case of Turkish workers who are already duly registered as belonging to the labour force of the Member States (see the judgment in Kus, cited above, at paragraph 25).
11 In Sevince, cited above, the Court held that Article 6(1) of Decision No 1/80 has direct effect in the Member States of the European Community (paragraph 2 of the operative part). Turkish nationals who satisfy its conditions may thus rely directly on the rights given them by the various indents of that provision.
12 Those rights themselves vary and are subject to conditions which vary according to the length of time that legal employment in the relevant Member State has lasted. After one year of legal employment, a Turkish worker is entitled to the renewal of his permit to work for the same employer (first indent). After three years of legal employment, and subject to the priority to be given to workers of Member States of the Community, he may respond to another offer of employment with an employer of his choice for the same occupation (second indent). After four years of legal employment, he is entitled to free access to any paid employment of his choice (third indent).
13 The aim of the first indent of Article 6(1) of Decision No 1/80 is to ensure solely continuity of employment with the same employer and is, accordingly, applicable only where a Turkish worker requests an extension of his work permit in order to continue working for the same employer after the initial period of one year' s legal employment.
14 Extending the application of that provision to a Turkish worker who, after one year' s legal employment, changed employers and is seeking an extension of his work permit in order to work for the first employer again would allow that worker to change employers under that provision before the expiry of the three years prescribed in the second indent and would also deprive workers of the Member States of the priority conferred on them pursuant to that indent when a Turkish worker changes employers.
15 It is sufficiently clear from the foregoing that the answer to the first question must be that the first indent of Article 6(1) of Decision No 1/80 is to be construed as not giving the right to the renewal of his permit to work for his first employer to a Turkish national who is a university graduate and who worked for more than one year for his first employer and for some ten months for another employer, having been issued with a two-year conditional residence authorization and corresponding work permits in order to allow him to deepen his knowledge by pursuing an occupational activity or specialized practical training.
Question 2
17 Like Article 6(1) of Decision No 1/80, Article 7 clearly, precisely and unconditionally embodies the rights of those children of Turkish workers who have completed a course of vocational training in the host country to respond to any offer of employment there, irrespective of the length of time they have been resident in that Member State, provided one of their parents has been legally employed in the Member State concerned for at least three years. Like Article 6(1), the second paragraph of Article 7 has direct effect in the Member States of the European Community.
18 It is noteworthy that in Sevince, in the context of the third indent of Article 6(1) of Decision No 1/80, the Court held that even if that provision merely governs the circumstances of the Turkish worker as regards employment and makes no reference to the right of residence, those two aspects of the personal situation of a Turkish worker are closely linked and that by granting to such a worker, after a specified period of legal employment in the Member State, access to any paid employment of his choice, the provision in question necessarily implies ° since otherwise the right granted by it to the Turkish worker would be deprived of any effect ° the existence, at least at that time, of a right of residence for the person concerned (paragraph 29).
19 In Kus, the Court applied the same reasoning to the first indent of Article 6(1) of Decision No 1/80, since, without a right of residence the grant to a Turkish worker of the right to renewal of his permit to work for the same employer after one year' s legal employment would likewise be deprived of any effect (paragraph 30).
20 Since the right of residence is essential to access to and the pursuit of any paid employment, whether for the same employer in connection with renewal of a work permit or for another employer, chosen freely or subject to the priority given to workers of the Member States of the Community, it must also be accepted that the right conferred on a person by the second paragraph of Article 7 of Decision No 1/80 to respond to any offer of employment necessarily implies the recognition of a right of residence for that person.
21 No argument to the contrary can be based on Article 48(3) of the Treaty which, in the field of freedom of movement for workers within the Community, explicitly sets out, in addition to the right to accept offers actually made, the right to stay in a Member State for the purpose of employment. Article 48(3) enumerates in a non-exhaustive way certain rights benefiting nationals of Member States in the context of the free movement of workers (Case C-292/89 Antonissen [1991] ECR I-745, paragraph 13), and that freedom entails the right for Community nationals to stay in the Member States not only in order to accept offers actually made there, but also to look for employment there (Kus, paragraph 35).
22 Contrary to the assertions of the German Government, the right to respond to any offer of employment, conferred by the second paragraph of Article 7 of Decision No 1/80 on children of Turkish workers who have completed a course of vocational training in the host country is not subject to any condition concerning the ground on which a right to enter and to stay was originally granted. The fact that that right was not given them with a view to reuniting the family but, for example, for the purposes of study does not, therefore, deprive the child of a Turkish worker who satisfies the conditions of the second paragraph of Article 7 of the enjoyment of the rights conferred thereunder.
23 In view of the foregoing, the answer to the second question must be that a Turkish national who satisfies the conditions set out in the second paragraph of Article 7 of Decision No 1/80 and may therefore respond to any offer of employment in the Member State concerned may, by the same token, also rely on that provision to obtain the extension of his residence permit.