Haydar Akman v Oberkreisdirektor des Rheinisch-Bergischen-Kreises.
Date: 1998-11-19
20 When the question is considered, it must be noted that, according to the third recital in its preamble, Decision No 1/80 is intended 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, which was adopted on 20 December 1976 by the Association Council established by the Association Agreement between the European Economic Community and Turkey.  The provisions of Chapter II, Section 1, of Decision No 1/80 thus constitute a further stage in securing freedom of movement for workers on the basis of Articles 48, 49 and 50 of the EC Treaty (see, in particular, Case C-434/93 Bozkurt v Staatssecretaris van Justitie [1995] ECR I-1475, paragraphs 14 and 19, and Case C-171/95 Tetik v Land Berlin [1997] ECR I-329, paragraph 20).
21 Within the structure of Decision No 1/80, that section regulates in particular the rights of Turkish nationals as regards employment in the host Member State.  It draws a distinction between the situation of Turkish workers who have been legally employed in the Member State concerned for a specified period (Article 6) and that of members of the families of such workers in the territory of the host Member State (Article 7).  Within the latter category it distinguishes further between members of a worker's family who have been authorised to join him in the host Member State and who have been legally resident there for a specified period (Article 7, first paragraph) and the children of such workers who have completed a course of vocational training in the Member State concerned (Article 7, second paragraph).
23 With regard to the second paragraph of Article 7, with which the national court's question is concerned, it must first be borne in mind that the Court has held that, like Article 6(1) (see, primarily, Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461, paragraph 26) and the first paragraph of Article 7 (Case C-351/95 Kadiman v Freistaat Bayern [1997] ECR I-2133, paragraph 28), the second paragraph of Article 7 of Decision No 1/80 has direct effect in the Member States, so that Turkish nationals fulfilling the conditions which it lays down may directly rely on the rights conferred on them by that provision (Case C-355/93 Eroglu v Land Baden-Württemberg [1994] ECR I-5113, paragraph 17).
24 Secondly, it must be noted that the rights conferred by the second paragraph of Article 7 on the child of a Turkish worker with regard to employment in the Member State concerned necessarily imply the existence of a concomitant right of residence for that child, without which the right to have access to the employment market and to actually take up salaried employment would be rendered totally ineffective (Eroglu, cited above, paragraphs 20 and 23).
25 Thirdly, the wording of the second paragraph of Article 7 makes it clear that the right conferred on the child of a Turkish worker to respond to any offer of employment in the host Member State is dependent on two conditions: the child in question must have completed a course of vocational training in the Member State concerned and one of his or her parents must have been legally employed there for at least three years.
35 It is, however, clear that the conditions laid down by the first paragraph for all family members are stricter than those laid down in the second paragraph, which apply to children alone.
37 Nor, furthermore, does the second paragraph of Article 7 require - unlike the first paragraph - that the children should have been authorised to join the parent in the host Member State (see also, to the same effect, Eroglu, cited above, paragraph 22).
38 Consequently, the second paragraph of Article 7 is a more favourable provision than the first and is intended to provide specific treatment for children, as opposed to other members of the family of a Turkish worker, with a view to facilitating their entry into the employment market following completion of a course of vocational training, the objective being the achievement by progressive stages of freedom of movement for workers, in accordance with the aims of Decision No 1/80 (see paragraph 20 above).
39 In those circumstances, the provision must not be interpreted strictly and cannot, failing any clear indication to that effect, be construed as requiring the Turkish migrant worker still to be employed in the host Member State at the time when his child wishes to gain access to the employment market there.
41 That provision, which confers on Turkish children a right of access without discrimination to education and training in the host Member State, prior to the right of access to employment under the second paragraph of Article 7, does not require that one of their parents be legally employed at the moment when they wish to exercise the rights thus conferred on them; on the contrary, it specifically states that the fact that the parents no longer work in the State in question is not such as to deprive the children of the rights they derive thereunder.
43 It follows, moreover, from what is stated in paragraph 37 above that, unlike the first paragraph (see Kadiman, cited above, in particular at paragraph 36), the second paragraph of Article 7 is not designed to create conditions conducive to family unity in the host Member State.
48 It must be added that the argument put forward at the hearing by the German Government, to the effect that where a Turkish worker has already returned to his home country at the time when his child has the opportunity of gaining access to the employment market, that child may take up salaried employment in the host Member State only under the strict conditions laid down in Article 6(1) of Decision No 1/80, disregards the fact that Article 6(1) applies subject to the provisions of Article 7 on free access to employment for members of the worker's family.
49 Such an interpretation would, moreover, wholly negate the effectiveness of the second paragraph of Article 7 by wrongly preventing Turkish children who have completed a course of vocational training in a Member State from enjoying the rights to which they are directly entitled pursuant to a special provision specifically conferring on them more favourable conditions as regards employment in that State.
50 As the law stands at present, Article 6(1) of Decision No 1/80 does not detract from the power which the Member States have to refuse a Turkish national the right to take up employment in their territory for the first time, nor does it in principle preclude them from regulating the conditions for such employment during the period of one year specified in its first indent.  The three indents of Article 6(1) thus make entitlement to the rights which they confer in progressive stages on a Turkish migrant worker, depending on the length of time he has been in salaried employment, subject to the condition that the individual concerned should already be duly registered as belonging to the labour force of the Member State concerned.  Article 7, on the other hand, as already pointed out at paragraph 36 above, provides for a right of free access to employment for Turkish nationals legally resident in the host Member State: either for family members in general after a specified period of legal residence on the basis of family unification with a Turkish worker (first paragraph); or for the children of such a worker irrespective of the length of time they have been resident but following completion of training in the State in which one of the parents has been employed for a certain period (second paragraph).
51 In the light of all the foregoing considerations, the answer to the question raised by the Verwaltungsgericht Köln must be that the second paragraph of Article 7 of Decision No 1/80 must be interpreted as follows:
a Turkish national such as the plaintiff in the main proceedings is entitled to respond to any offer of employment in the host Member State after having completed a course of vocational training there, and consequently to be issued with a residence permit, when one of his parents has in the past been legally employed in that State for at least three years;
however, it is not required that the parent in question should still work or be resident in the Member State in question at the time when his child wishes to gain access to the employment market there.