Faik Günaydin, Hatice Günaydin, Günes Günaydin and Seda Günaydin v Freistaat Bayern.
Date: 1997-09-30
20 It should be observed, in limine, that according to the third recital in its preamble, Decision No 1/80 seeks 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 the Council of Association set up by the Agreement establishing an Association between the European Economic Community and Turkey adopted on 20 December 1976.
21 The provisions of Section 1 of Chapter II of Decision No 1/80, of which Article 6 forms part, thus constitute a further stage in securing freedom of movement for workers on the basis of Articles 48, 49 and 50 of the Treaty.  The Court has accordingly considered it essential to extend, so far as possible, the principles enshrined in those Treaty articles to Turkish workers who enjoy the rights conferred by Decision No 1/80 (see the judgments in Case C-434/93 Bozkurt v Staatssecretaris van Justitie [1995] ECR I-1475, paragraphs 14, 19 and 20, and Case C-171/95 Tetik v Land Berlin [1997] ECR I-329, paragraph 20).
22 As the law now stands, however, Turkish nationals are not entitled to move freely within the Community but merely enjoy certain rights in the host Member State whose territory they have lawfully entered and where they have been in legal employment for a specified period (Tetik, cited above, paragraph 29).
23 Likewise, the Court has consistently held (see, in particular, Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781, paragraph 25) that Decision No 1/80 does not encroach upon the competence retained by the Member States to regulate both the entry into their territories of Turkish nationals and the conditions under which they may take up their first employment, but merely regulates, in Article 6, the situation of Turkish workers already integrated into the labour force of the host Member State.
24 The first point to be noted in that regard is that since the judgment in Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461 the Court has consistently held that Article 6(1) of Decision No 1/80 has direct effect in the Member States and that Turkish nationals who satisfy its conditions may therefore rely directly on the rights given them by the various indents of that provision (Case C-355/93 Eroglu v Land Baden-Württemberg [1994] ECR I-5113, paragraph 11).
25 As is clear from the three indents of Article 6(1), those rights themselves vary and are subject to conditions which differ according to the duration of the legal employment in the relevant Member State (Eroglu, paragraph 12).
26 Second, it should be borne in mind that the Court has consistently held that the rights which the three indents of Article 6(1) confer on Turkish workers in regard to employment necessarily imply the existence of a right of residence for the person concerned, since otherwise the right of access to the labour market and the right to work as an employed person would be deprived of all effect (Sevince, paragraph 29, Kus, paragraphs 29 and 30, and Bozkurt, paragraph 28).
29 In order to ascertain whether such a worker is duly registered as belonging to the labour force of a Member State for the purposes of Article 6(1) of Decision No 1/80 it must be determined first of all, in accordance with settled case-law (Bozkurt, cited above, paragraphs 22 and 23), whether the legal relationship of employment of the person concerned can be located within the territory of a Member State or retains a sufficiently close link with that territory, taking account in particular of the place where the Turkish national was hired, the territory on or from which the paid employment is pursued and the applicable national legislation in the field of employment and social security law.
31 Next, it should next be ascertained whether the worker is bound by an employment relationship covering a genuine and effective economic activity pursued for the benefit and under the direction of another person for remuneration (Case C-98/96 Ertanir v Land Hessen [1997] ECR I-0000, paragraph 43).
36 Admittedly, as the law stands at present, Decision No 1/80 does not 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, nor does it preclude those Member States, in principle, from regulating the conditions under which they work for up to one year as provided for in the first indent of Article 6(1) of that decision.
37 None the less, Article 6(1) cannot be construed as permitting a Member State to modify unilaterally the scope of the system of gradual integration of Turkish workers in the host State's labour force, by denying a worker who has been permitted to enter its territory and who has lawfully pursued a genuine and effective economic activity for more than three-and-a-half years the rights which the three indents of that provision confer on him progressively according to the duration of his employment.
38 The effect of such an interpretation would be to render Decision No 1/80 meaningless and deprive it of any practical effect.
39 Accordingly, the Member States have no power to make conditional or restrict the application of the precise and unconditional rights which Decision No 1/80 grants to Turkish nationals who satisfy its conditions (Sevince, paragraph 22 and Kus, paragraph 31, cited above).
40 Moreover, the wording of Article 6(1) is general and unconditional: it does not permit the Member States to restrict the rights which that provision confers directly on Turkish workers.
41 As regards the question whether a worker such as the appellant in the main proceedings has been legally employed in the host Member State within the meaning of Article 6(1) of Decision 1/80, it is settled case-law (Sevince, paragraph 30, Kus, paragraphs 12 and 22, and Bozkurt, paragraph 26) that legal employment presupposes a stable and secure situation as a member of the labour force of a Member State and, by virtue of this, implies the existence of an undisputed right of residence.
45 Finally, in Case C-285/95 Kol v Land Berlin [1997] ECR I-0000, paragraph 27, the Court held that the periods in which a Turkish national was employed under a residence permit which was issued to him only as a result of fraudulent conduct which led to his conviction were not based on a stable situation, and that such employment could not be regarded as having been secure in view of the fact that, during the periods in question, the person concerned was not legally entitled to a residence permit.
49 First, it is settled case-law that the rights conferred on Turkish workers by Article 6(1) are accorded irrespective of whether or not the authorities of the host Member State have issued a specific administrative document, such as a work permit or residence permit (see, to this effect, the judgment in Bozkurt, cited above, paragraphs 29 and 30).
50 Second, if conditions or restrictions applied by a Member State to residence and/or work permits for Turkish nationals could result in their lawful employment there being regarded as not legal, Member States would be able wrongly to deprive Turkish migrant workers whom they permitted to enter their territory and who have been legally employed there for an uninterrupted period of more than three years of rights on which they are entitled to rely directly under Article 6(1) (see paragraphs 37 to 40 of this judgment).
51 Moreover, the fact that, in a case such as that at issue in the main proceedings, the work and residence permits were issued to the worker for a specific purpose, in order to allow him to carry out further vocational training in an undertaking in a Member State with a view to taking up a post subsequently in one of its subsidiaries in Turkey, does not affect that interpretation.
52 Article 6(1) does not make the recognition of the rights it confers on Turkish workers subject to any condition connected with the reason the right to enter, work or reside was initially granted (Kus, paragraphs 21 to 23 and, by analogy, Eroglu, paragraph 22).
53 The fact that such permits were granted to the person concerned for a specific purpose which the genuine and effective paid employment in question sought to achieve is not, therefore, capable of depriving a worker who satisfies the conditions laid down in Article 6(1) of the progressive rights which that provision confers upon him.
54 In the circumstances, the worker cannot be prevented from relying on rights acquired under Decision No 1/80 on the ground that he allegedly stated that he wished to pursue his professional career in his country of origin after being employed for several years in the host Member State with a view to perfecting his vocational skills and that he initially accepted the restriction placed upon his permit to reside in that State.
55 In view of all the foregoing considerations, the answer to the first question must be that Article 6(1) of Decision No 1/80 is to be interpreted as meaning that a Turkish national who has been lawfully employed in a Member State for an uninterrupted period of more than three years in a genuine and effective economic activity for the same employer and whose employment status is not objectively different to that of other employees employed by the same employer or in the sector concerned and exercising identical or comparable duties, is duly registered as belonging to the labour force of that State and is legally employed within the meaning of that provision.  A Turkish national in that situation may therefore seek the renewal of his permit to reside in the host Member State notwithstanding the fact that he was permitted to take up paid employment there only temporarily with a specific employer for the purpose of acquainting himself with and preparing for employment in one of its subsidiaries in Turkey, and obtained work and residence permits for that purpose only.
The second question
60 In such circumstances, it is only if the national court establishes that the Turkish worker made the statement that he wished to leave the host Member State after a specified period with the sole intention of inducing the competent authorities to issue the requisite permits on false premisses that he can be deprived of the rights flowing from Article 6(1) of Decision No 1/80.