Suat Kol v Land Berlin.
Date: 1997-06-05
19 In order to reply to that question, the first point to note is that the order for reference shows that, on 2 May 1991, the date on which he made an inaccurate declaration in order to obtain a German residence permit of unlimited duration, Mr Kol had not been in legal employment for one year with the same employer, within the meaning of the first indent of Article 6(1) of Decision No 1/80.  Mr Kol's two periods of employment in the host Member State prior to that date, the first of nearly nine months and the second of ten and a half months, were for two different employers; as the judgment in Case C-386/95 Eker [1997] ECR I-0000 makes clear, the first indent of Article 6(1) presupposes legal employment for an uninterrupted period of one year with the same employer.
20 Consequently Mr Kol cannot avail himself of the rights conferred by the first indent of Article 6(1) unless his periods of employment after 2 May 1991 may be regarded as legal employment within the meaning of that provision.
21 In that connection, the Court has consistently held (Case C-192/89 Sevince [1990] ECR I-3461, paragraph 30; Case 237/91 Kus [1992] ECR I-6781, paragraphs 12 and 22; Case C-434/93 Bozkurt [1995] ECR I-1475, paragraph 26) that legal employment within the meaning of the first indent of Article 6(1) 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.
22 In the Sevince judgment, the Court stated that a Turkish worker was not in a stable and secure situation as a member of the labour force of a Member State during the period in which he benefited from the suspensory effect of an appeal he had lodged against a decision refusing him a residence permit and had obtained authorization, on a provisional basis, pending the outcome of the dispute, to reside and be employed in the Member State in question (paragraph 31).
23 Similarly, in Kus, cited above, the Court held that a Turkish 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 (paragraph 18), on the ground that the person concerned 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).
24 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.  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 when he did not fulfil the conditions laid down in that provision (Kus, cited above, paragraph 16).
26 Periods of employment after a residence permit has been obtained only by means of fraudulent conduct which has led to a conviction cannot be regarded as legal for the purposes of application of Article 6(1) of Decision No 1/80, since the Turkish national did not fulfil the conditions for the grant of such a permit which was, accordingly, liable to be rescinded when the fraud was discovered.
27 Consequently, the periods in which the Turkish national was employed under a residence permit obtained in those circumstances were not based on a stable situation and such employment cannot 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.
28 Furthermore, employment under a residence permit issued as a result of fraudulent conduct which has led, as in this case, to a conviction, cannot give rise to any rights in favour of the Turkish worker, or arouse any legitimate expectation on his part.