Hava Genc v Land Berlin.
Date: 2010-02-04
17. The Court has consistently inferred from the wording of Article 12 of the EEC‑Turkey Association Agreement and from Article 36 of the Additional Protocol, signed in Brussels on 23 November 1970, annexed to that agreement and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (JO 1972 L 293, p. 1; an English version of the Additional Protocol is published at OJ 1977 L 361, p. 60), as well as from the objective of Decision No 1/80, that the principles laid down in Articles 48 and 49 of the EC Treaty (now, after amendment, Articles 39 EC and 40 EC) and in Article 50 of the EC Treaty (now Article 41 EC) must be extended, so far as possible, to Turkish nationals who enjoy the rights conferred by that decision (see, to that effect, inter alia, Case C‑434/93 Bozkurt  [1995] ECR I‑1475, paragraphs 14, 19 and 20, and Case C‑275/02 Ayaz  [2004] ECR I‑8765, paragraph 44).
19. As the Court has consistently held, the concept of ‘worker’ within the meaning of Article 39 EC has an independent meaning for the purposes of European Union law and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is, according to the Court’s case-law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see, inter alia, Case 66/85 Lawrie-Blum  [1986] ECR 2121, paragraphs 16 and 17, and Case C‑228/07 Petersen  [2008] ECR I‑6989, paragraph 45).
20. Neither the origin of the funds from which the remuneration is paid nor the limited amount of that remuneration, nor indeed the fact that the person in question seeks to supplement that remuneration by other means of subsistence such as financial assistance drawn from the public funds of the State in which he resides, can have any consequence in regard to whether or not the person is a ‘worker’ for the purposes of European Union law (see, to that effect, Case 139/85 Kempf  [1986] ECR 1741, paragraph 14; Case 344/87 Bettray  [1989] ECR 1621, paragraph 15; and Case C‑10/05 Mattern and Cikotic [2006] ECR I‑3145, paragraph 22).
21. Having established that Ms Genc performs services for and under the direction of an employer in return for remuneration, the national court has ipso facto  established the existence of the constituent elements of any employment relationship, namely subordination and the payment of remuneration in return for services rendered (see, to that effect, Case C‑456/02 Trojani  [2004] ECR I‑7573, paragraph 22).
24. In that judgment, the Court rejected the argument of the German Government that persons in minor employment are not part of the working population because the small earnings which they receive from such employment are not sufficient to satisfy their needs ( Megner and Scheffel , paragraphs 17 and 18).
25. The Court held that the fact that a worker’s earnings do not cover all his needs cannot preclude him from being a member of the working population and that employment which yields an income lower than the minimum required for subsistence or normally does not exceed even 10 hours a week does not prevent the person in such employment from being regarded as a worker within the meaning of Article 39 EC (see, to that effect, Case C‑213/05 Geven  [2 007] ECR I‑6347, paragraph 27, and Megner and Scheffel , paragraph 18).
26. Although the fact that a person works for only a very limited number of hours in the context of an employment relationship may be an indication that the activities performed are marginal and ancillary (Case C‑357/89 Raulin  [1992] ECR I-1027, paragraph 14), the fact remains that, independently of the limited amount of the remuneration for and the number of hours of the activity in question, the possibility cannot be ruled out that, following an overall assessment of the employment relationship in question, that activity may be considered by the national authorities to be real and genuine, thereby allowing its holder to be granted the status of ‘worker’ within the meaning of Article 39 EC.
27. The overall assessment of Ms Genc’s employment relationship makes it necessary to take into account factors relating not only to the number of working hours and the level of remuneration but also to the right to 28 days of paid leave, to the continued payment of wages in the event of sickness, and to a contract of employment which is subject to the relevant collective agreement, in conjunction with the fact that her contractual relationship with the same undertaking has lasted for almost four years.
30. In that regard, it should be borne in mind that the procedure for referring questions for a preliminary ruling under Article 234 EC establishes a relationship of close cooperation between the national courts and the Court of Justice, based on the assignment to each of different functions, and constitutes an instrument by means of which the Court provides the national courts with the criteria for the interpretation of European Union law which they require in order to dispose of disputes which they are called upon to resolve (Joined Cases C‑260/00 to C-263/00 Lohmann and Medi Bayreuth  [2002] ECR I‑10045, paragraph 27, and Case C‑259/05 Omni Metal Service  [2007] ECR I‑4945, paragraph 16).
31. It is one of the essential characteristics of the system of judicial cooperation established under Article 234 EC that the Court replies in rather abstract and general terms to a question on the interpretation of European Union law referred to it, while it is for the referring court to give a ruling in the dispute before it, taking into account the Court’s reply (Case C‑162/06 International Mail Spain  [2007] ECR I‑9911, paragraph 24).
32. The analysis of the consequences which all those factors which characterise an employment relationship, in particular those set out in paragraph 27 above, may have for the finding as to whether Ms Genc’s employment is real and genuine and, therefore, for her status as a worker is a matter coming within the jurisdiction of the national court. The national court alone has direct knowledge of the facts giving rise to the dispute and is, consequently, best placed to make the necessary determinations.
36. According to well-established case‑law, it follows both from the primacy of European Union law over Member States’ domestic law and from the direct effect of a provision such as Article 6 of Decision No 1/80 that a Member State is not permitted to modify unilaterally the scope of the system of gradually integrating Turkish workers into the host Member State’s labour force (see, inter alia, Case C‑1/97 Birden  [1998] ECR I‑7747, paragraph 37, and Case C‑188/00 Kurz  [2002] ECR I‑10691, paragraph 66).
37. Member States cannot, therefore, apply a measure relating to the residence of a Turkish national in their territory which is liable to impede the exercise of rights expressly granted by European Union law to such a national.
38. Where the Turkish national fulfils the conditions laid down by a provision of Decision No 1/80 and, accordingly, is already duly integrated in a Member State, that Member State no longer has the power to restrict application of those rights, as that decision would otherwise be rendered redundant (see, inter alia, Birden , paragraph 37, and Kurz , paragraph 68).
39. More specifically, the exercise of the rights which Turkish nationals derive from Decision No 1/80 is not subject to any condition relating to the ground on which rights of entry and residence were originally granted in the host Member State (see, to that effect, Case C‑237/91 Kus  [1992] ECR I‑6781, paragraphs 21 and 22, and Case C-294/06 Payir and Others  [2008] ECR I‑203, paragraph 40).
42. Suffice it to recall in that regard that there can be only two kinds of restrictions on the rights which Decision No 1/80 confers on Turkish nationals who fulfil the conditions laid down in that decision, namely, either a restriction based on the fact that the presence of the Turkish migrant in the host Member State constitutes, by reason of his own personal conduct, a genuine and serious threat to public policy, public security or public health, within the terms of Article 14(1) of that decision, or a restriction based on the fact that the person concerned has left the territory of that State for a significant length of time without legitimate reason (see, to that effect, Case C‑453/07 Er  [2008] ECR I‑7299, paragraph 30).
43. The exhaustive nature of the restrictions set out in the preceding paragraph would be undermined if the national authorities were able to make the interested person’s right of residence subject to additional conditions as to the existence of interests capable of justifying residence or as to the nature of the employment (see, to that effect, Case C‑337/07 Altun  [2008] ECR I‑0000, paragraph 63).