Kasim Ertanir v Land Hessen.
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, the judgment in Kus, cited above, 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).
28 The first of those questions, as rephrased in paragraph 19 of this judgment, concerns the scope of Article 6(3) of Decision No 1/80, according to which the procedures for applying Article 6(1) are to be those established under national rules.  It is settled case-law (Sevince, paragraph 22, and Kus, paragraph 31, cited above) that that provision merely clarifies the obligation incumbent on the Member States to take such administrative measures as may be necessary for the implementation of Article 6, without empowering them to make conditional or restrict the application of the precise and unconditional right which the provision grants to Turkish workers.
29 Moreover, in Kus, paragraph 25, the Court pointed out that Article 6 of Decision No 1/80 merely regulates the situation of Turkish workers already integrated into the labour force of a Member State and the decision cannot, therefore, constitute justification for depriving Turkish workers already in possession of a work permit and, if necessary, a right of residence in accordance with the legislation of a Member State of the rights provided for in Article 6(1) thereof.
31 However, that provision cannot be construed as reserving to the Member States the power to adapt as they please the rules governing Turkish workers already integrated in their labour force, permitting them to adopt unilaterally measures preventing certain categories of workers who already satisfy the conditions of Article 6(1) from benefiting from the progressively more extensive rights enshrined in the three indents of that paragraph.
35 Such legislation would undermine the gradual integration of Turkish workers in the host Member State's labour force provided for in the three indents of Article 6(1), by depriving some of those workers - such as the applicant in the main proceedings - who entered that State lawfully and were permitted to take up paid employment there not only of the possibility of continuing to work for the same employer beyond the time-limit unilaterally imposed by the Member State concerned, but also of the right to respond, after three years of legal employment, to an offer of employment made by another employer in the same occupation (second indent) and of free access, after four years of legal employment, to any paid employment of their choice (third indent).
39 In order to ascertain whether such a worker is duly registered as belonging to the labour force of a Member State 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.
43 A specialist chef performing services for and under the direction of another person for remuneration is bound by an employment relationship covering a genuine and effective economic activity.
47 As regards the meaning of `legal employment' for the purposes of Article 6(1) of Decision No 1/80, it is settled case-law (Sevince, paragraph 30, Kus, paragraphs 12 and 22 and Bozkurt, paragraph 26, cited above) 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.
49 Similarly, in Kus, cited above, the Court held that a worker did not fulfil that requirement where a right of residence was conferred on him only by the operation of national legislation permitting residence in the host country pending completion of the procedure for the grant of a residence permit, on the ground that he had been given the right to remain and work in that country only on a provisional basis pending a final decision on his right of residence (paragraph 13).
50 The Court considered that it was not possible to regard as legal, within the meaning of Article 6(1) of Decision No 1/80, periods in which the worker was employed so long as it was not definitively established that during that period the worker had a legal right of residence, since otherwise a judicial decision finally refusing him that right would be rendered nugatory, and he would thus have been enabled to acquire the rights provided for in Article 6(1) during a period in which he did not fulfil the conditions laid down in that provision (Kus, cited above, paragraph 16).
51 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.
55 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).
59 The term `legal employment' used by Article 6(1) is a concept of Community law which must be defined objectively and uniformly in the light of the spirit and the purpose of the provision.
62 In view of all the foregoing considerations, the answer to the second of those questions as rephrased in paragraph 19 of this judgment must be that a Turkish national who has been lawfully employed in a Member State for an uninterrupted period of more than one year as a specialist chef by the same employer is duly registered as belonging to the labour force of that Member State and is legally employed within the meaning of Article 6(1) of Decision No 1/80.  A Turkish national in that situation may accordingly seek the renewal of his permit to reside in the host Member State notwithstanding the fact that he was advised when the work and residence permits were granted that they were for a maximum of three years and restricted to specific work, in this case as a specialist chef, for a specific employer.
The first question
65 The decision merely regulates, in Article 6(2), the effect on the calculation of the periods of legal employment referred to in the three indents of Article 6(1) of certain periods of inactivity which are treated as periods of legal employment within the meaning of paragraph (1) or which do not cause the worker to lose entitlement to the rights acquired by virtue of earlier periods of legal employment (see, in particular, the judgment in Tetik, cited above, paragraphs 36 to 39).
67 Finally, it should be observed that, in a situation such as that at issue in the main proceedings, first, the periods during which the Turkish worker did not hold in the host Member State a valid residence or work permit were of no more than a few days and, second, he received a new permit each time, the validity of which was moreover extended on two occasions with retroactive effect to the expiry date of the (previous) permit, without the competent authorities challenging on that ground the legality of the residence of the worker in the country.
69 The answer to the first question must therefore be that Article 6(1) of Decision No 1/80 is to be interpreted as requiring account to be taken, for the purpose of calculating the periods of legal employment referred to in that provision, of short periods during which the Turkish worker did not hold a valid residence or work permit in the host Member State and which are not covered by Article 6(2) of that decision, where the competent authorities of the host Member State have not called in question on that ground the legality of the residence of the worker in the country but have, on the contrary, issued him with a new residence or work permit.