Atilla Gülbahce v Freie und Hansestadt Hamburg.
Date: 2012-11-08
31. At the outset, it should be noted that, even though, formally, the referring court has limited its questions to the interpretation of Articles 10(1) and 13 of Decision No 1/80, such a situation does not prevent the Court from providing the referring court with all the elements of interpretation of European Union law which may be of assistance in adjudicating on the case before it, whether or not that court has specifically referred to them in the questions (see Case C‑251/06 ING. AUER  [2007] ECR I‑9689, paragraph 38, and Case C‑434/09 McCarthy  [2011] ECR I‑3375, paragraph 24).
32. In that regard, it should be recalled that the Court has consistently held that, in the application of Article 267 TFEU, it may extract from the wording of the questions formulated by the referring court, and having regard to the facts stated by the latter, those elements which concern the interpretation of European Union law, for the purpose of enabling that court to resolve the legal problems before it (Case C‑420/07 Apostolides  [2009] ECR I‑3571, paragraph 63 and the case‑law cited).
36. In that regard, it should be borne in mind that 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 paid legal 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).
38. 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).
39. 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 Case C‑337/07 Altun  [2008] ECR I‑10323, paragraph 53).
44. In its judgment of 29 September 2011 in Case C‑187/10 Unal  [2011] ECR I‑9045, delivered after the reference for a preliminary ruling had been made in the present case, the Court has already had occasion to hold that, 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 ( Unal , paragraph 50).
45. In that regard, it was pointed out 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 recognition of that right dependant on any other condition, such as the circumstances under which the right of entry and residence was obtained ( Unal , paragraph 38 and the case‑law cited).
46. Thus, the Court held that a Turkish worker who has been employed for more than one year under a valid work permit has 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 ( Unal , paragraph 39 and the case‑law cited).
47. It is true that, as European Union law stands at present, Decision No 1/80 do es not at all 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 Unal , paragraph 41 and the case‑law cited).
48. 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 to 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 Unal , paragraph 42 and the case‑law cited).
49. Such an interpretation would render Decision No 1/80 meaningless and deprive it of any practical effect, since the wording of Article 6(1) of that decision 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 ( Unal , paragraphs 43 and 44 and the case‑law cited).
50. It is true 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 (see Unal , paragraph 47).