Mehmet Sedef v Freie und Hansestadt Hamburg.
Date: 2006-01-10
23. If the answer to one of the two parts of the first question is in the affirmative, the national court wishes to ascertain, secondly, whether, as the case-law of the Court appears to indicate (see Case C-171/95 Tetik [1997] ECR I-329, paragraph 39; Case C-386/95 Eker  [1997] ECR I-2697, paragraphs 23 and 25; and Case C-98/96 Ertanir  [1997] ECR I-5179, paragraphs 31 and 35), entitlement to a residence permit under the third indent of Article 6(1) of Decision No 1/80 presupposes that the worker has already satisfied the requirements of the second indent of that same paragraph.
33. Before considering those three aspects in turn, it must be borne in mind that, following Decision No 2/76 on the implementation of Article 12 of the Association Agreement, adopted by the Association Council on 20 December 1976, the provisions with a social purpose in Decision No 1/80 constitute a further stage in gradually securing freedom of movement for Turkish workers in the European Community. In particular, Article 6(1) of the latter decision grants Turkish migrant workers meeting its conditions clear rights as regards taking up employment. It is established case-law that that provision, which has been recognised as having direct effect, confers an individual right as regards employment and a concomitant right of residence on the persons concerned (see Case C-136/03 Dörr and Ünal  [2005] ECR I-0000, paragraph 66, and the case-law cited).
The requirements of the system for gradually integrating Turkish workers into the labour force of the host Member State
34. The Court has repeatedly held, first, that the employment rights and, accordingly, the rights of residence which are conferred on Turkish workers by the provisions set out in the three indents of Article 6(1) of Decision No 1/80 are progressively extended in proportion to the duration of lawful paid employment and are intended to consolidate progressively the position of the persons concerned in the host Member State. Secondly, the Court has also consistently held that the national authorities have no option to attach conditions to or restrict the application of such rights, as they would otherwise undermine the effect of that decision (see Case C-36/96 Günaydin  [1997] ECR I-5143, paragraphs 37 to 40 and paragraph 50; Case C-1/97 Birden  [1998] ECR I-7747, paragraph 19; Case C-188/00 Kurz  [2002] ECR I-10691, paragraph 26; and Joined Cases C-317/01 and C-369/01 Abatay and Others  [2003] ECR I-12301, paragraph 78).
35. More specifically, as is clear from the actual wording of the three indents of Article 6(1) of Decision No 1/80, the rights on which Turkish workers can rely under those provisions vary themselves and are subject to conditions which differ according to the duration of the legal employment in the host Member State (see Case C-355/93 Eroglu  [1994] ECR I-5113, paragraph 12: Tetik , paragraph 23: Eker , paragraph 21: Günaydin , paragraph 25; and Ertanir , paragraph 25).
36. Thus, it is evident from those provisions that, after one year’s legal employment, a Turkish worker is entitled to continue in the employment of the same employer (first indent). After three years of legal employment and subject to the priority to be given to workers from the Member States, he has the right to respond to another offer of employment made by an employer of his choice for the same occupation (second indent). After four years of legal employment he enjoys the unconditional right to seek and take up any employment freely chosen (third indent) (see Eroglu , paragraph 12; Tetik , paragraph 26; and Nazli , paragraph 27).
39. In paragraphs 13 to 15 of Eroglu , the Court considered that the aim of the first indent of Article 6(1) of Decision No 1/80 is solely to ensure continuity of employment with the same employer and that, accordingly, that provision did not apply to the situation of a Turkish worker who, after one year’s legal employment, changed employer and sought an extension of her work permit in order to work for her first employer again.
40. Similarly, in paragraphs 30 and 31 of Eker , the Court held that that provision confers no entitlement on a Turkish worker who has changed employer before the end of the first year of employment in the host Member State and applies for an extension of his residence permit in order to continue working for his new employer before even completing one year’s legal employment with that employer.
41. That interpretation of the first indent of Article 6(1) of Decision No 1/80 was confirmed again in Case C-285/95 Kol  [1997] ECR I-3069, paragraphs 19 and 20, and Birden , paragraphs 44, 62 and 69.
45. In this connection, according to settled case-law, a fundamental distinction must be made between, first, 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, secondly, the case where the Turkish worker has already satisfied those successive requirements and therefore, at the end of the four-year period referred to in the third indent of that provision, enjoys the right of free access to any paid employment of his choice ( Tetik , paragraph 26; Nazli , paragraph 27; and Case C-383/03 Dogan  [2005] ECR I-0000, paragraph 13).
46. Thus, the position of a Turkish worker who has, in the past, satisfied the conditions laid down in the third indent of Article 6(1) of that decision is no longer dependent on the continuing existence of the conditions for access to the rights laid down in the three indents of that paragraph. Such a worker must be regarded as being sufficiently integrated in the host Member State to be able temporarily to interrupt his employment relationship. Any other interpretation would deprive of its substance that worker’s right of free access to any paid employment of his choice (see Tetik , paragraph 31, and Dogan , paragraphs 14, 18 and 19).
47. By contrast, a Turkish worker who does not yet enjoy the right provided for in the third indent must be engaged in legal employment for one, three or four years respectively, in principle without any interruption (see Dogan , paragraph 18).
48. It is in order to temper the severity of the latter rule that Article 6(2) of Decision No 1/80 sets out certain legitimate causes of interruption to employment for the purpose of calculating the different periods of legal employment required for the acquisition, on an incremental basis, of the rights provided for in the first to third indents of paragraph 1 of that article ( Bozkurt , paragraph 38; Tetik , paragraph 36; Nazli , paragraph 40; and Dogan , paragraph 15).
52. That provision is therefore intended to avoid a situation where a Turkish worker returning to work after having been compelled to cease work temporarily for a legitimate reason was required, in the same way as a Turkish national who had not yet been in paid employment in the Member State concerned, to recommence the periods of legal employment laid down in the first to third indents of Article 6(1) of Decision No 1/80.
54. By contrast, provided the Turkish worker has satisfied the conditions laid down in the third indent of Article 6(1) of Decision No 1/80, the practical effect of the unconditional right granted to him by that provision of free access to any paid employment of his choice necessarily implies that that worker is entitled temporarily to cease working in one job and, for a reasonable period of time, to seek other employment, so that Article 6(2) is no longer applicable in such a situation (see Dogan , paragraphs 16, 18 and 19).
59. The Court has, moreover, already held, with regard to the first indent of the first paragraph of Article 7 of Decision No 1/80 which lays down a condition of legal residence of a certain duration similar to the condition concerning legal employment laid down in Article 6(1) of the same decision, that the obligation on a member of a Turkish worker’s family to reside in principle with him for the first three years without interruption does not preclude the person concerned from being absent from the family residence for a reasonable period and for legitimate reasons, for example in order to visit his family in his country of origin (see Kadiman , paragraphs 47 and 48).
63. It must be added that the Court has, on several occasions, found it necessary to take into account the conduct of the relevant national authorities for the purpose of interpreting the provisions with a social purpose in Decision No 1/80, relying in particular on the fact that those authorities had not called into question the legality of the residence of the Turkish national concerned in the territory of the host Member State (see, to that effect, as regards Article 6(1) of Decision No 1/80, Ertanir , paragraphs 67 and 69 and also, by analogy, as regards the first paragraph of Article 7 of the same decision, Kadiman , paragrahs 52 and 54; Case C-329/97 Ergat  [2000] ECR I-1487, paragraph 51; and Case C-65/98 Eyüp  [2000] ECR I-4747, paragraphs 35 and 36).