Ergül Dogan v Sicherheitsdirektion für das Bundesland Vorarlberg.
Date: 2005-07-07
13. In order to answer that question effectively, it must be recalled from the outset that it is clear from the wording of Article 6(1) of Decision No 1/80 that, unlike the first and second indents of that article, 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 to work there 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 of employment but also the unconditional right to seek and take up any employment freely chosen by the person concerned (Case C-171/95 Tetik [1997] ECR I-329, paragraph 26, and Nazli , paragraph 27).
14. As regards the position of a Turkish worker who, like Mr Dogan, enjoys in the host Member State, after four years of legal employment, ‘the right of free access to any paid employment of his choice’ in that Member State, in accordance with the third indent of Article 6(1), the Court has repeatedly held not only that the direct effect of that provision means that the person concerned derives an individual employment right directly from Decision No 1/80, but also that to be effective that right necessarily implies a concomitant right of residence which does not depend on the continuing existence of the conditions for access to those rights (see Case C-192/89 Sevince  [1990] ECR I-3461, paragraphs 29 and 31; Case C-237/91 Kus [1992] ECR I-6781, paragraph 33; Tetik , paragraphs 26, 30 and 31; and Nazli , paragraphs 28 and 40; see also, by analogy, concerning the second indent of the first sentence of Article 7 of Decision No 1/80, Case C‑329/97 Ergat  [2000] ECR I-1487, paragraph 40, and Case C-467/02 Cetinkaya  [2004] ECR I-0000, paragraph 31; and, concerning the second sentence of Article 7, Case C-355/93 Eroglu  [1994] ECR I-5113, paragraph 20, and Case C‑210/97 Akman  [1998] ECR I-7519, paragraph 24).
15. It is only during the phase in which rights are acquired on an incremental basis in accordance with the length of the paid legal employment as set out in the three indents of Article 6(1) of Decision No 1/80 and, therefore, only for the purpose of calculating the various periods of employment necessary for that purpose, that Article 6(2) lays down the effects on those periods of the various causes of interruption of employment (see, to that effect, Case C-434/93 Bozkurt [1995] ECR I‑1475, paragraph 38; Tetik , paragraphs 36 to 39; and Nazli , paragraph 40).
16. From the time the Turkish worker has satisfied the conditions laid down in the third indent of Article 6(1) of Decision No 1/80 and, therefore, already enjoys the unconditional right laid down by that provision to free access to the paid employment of his choice and the concomitant right of residence, Article 6(2) is no longer applicable.
18. It is settled case-law that, in order not to deprive of their substance the rights derived by a Turkish worker from 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 necessarily implies the right to cease employment in order to seek other employment which he may freely choose ( Nazli , paragraph 35). Unlike the first and second indents, the third indent does not require an uninterrupted period of employment.
19. From that, the Court concludes that a Turkish worker is entitled to a temporary interruption of his employment relationship. In spite of such an interruption he continues to be duly registered as belonging to the labour force in the host Member State, within the meaning of Article 6(1) of Decision No 1/80, during the period which is reasonably necessary for him to find other paid employment. He may therefore claim an extension of his residence permit in that Member State in order to exercise his right to free access to any paid employment of his choice, provided that he does in fact try to find a new job and, if appropriate, registers with the employment services in order to find another job within a reasonable time (see, to that effect, Tetik , paragraphs 30, 31, 41, 46 and 48, and Nazli , paragraphs 38 and 40).
20. That interpretation, based on the system put in place by Article 6(1) of Decision No 1/80, and the effectiveness of the rights to employment and residence conferred on Turkish workers by the third indent of that provision, must apply regardless of the cause of the absence of the person concerned from the labour force of the host Member State, provided that that absence is temporary.
22. As is clear from Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri [2004] ECR I-5257, paragraph 50, the reasoning in Nazli  cannot therefore be understood as being limited to the particular circumstances of that case, depending on the fact that the worker in question had been detained pending trial for more than a year and then given a suspended sentence. On the contrary, the same reasoning is applicable in its entirety, for the same reasons, to a temporary absence from the labour force due to the completion of a prison sentence. More particularly, the fact that the imprisonment prevents the person concerned from working, even for a long period, is irrelevant if it does not preclude his subsequent return to working life.
23. In those circumstances, except where the person concerned has definitively ceased to be duly registered as belonging to the labour force of the host Member State because objectively he no longer has any chance of rejoining the labour force or has exceeded a reasonable time-limit for finding new employment after the end of his prison term, the national authorities can restrict the rights which he derives from Article 6(1), third indent, of Decision No 1/80 as regards residence and employment only on the basis of Article 14(1) of that decision (see Nazli , paragraph 44).
24. It must be added that it is already clear from the case-law that an expulsion measure based on Article 14 may be issued only if the personal conduct of the person concerned indicates a specific risk of new and serious prejudice to the requirements of public policy. Consequently, such a measure cannot be ordered automatically as a resu lt of a criminal conviction and on the basis of general preventive grounds (see Nazli , paragraphs 61, 63 and 64).