Kazim Kus v Landeshauptstadt Wiesbaden.
Date: 1992-12-16
12 On that point, it follows from the judgment in Sevince, cited above, that the legality of the employment within the meaning of the third indent of Article 6(1) of Decision No 1/80 presupposes a stable and secure situation as a member of the labour force (paragraph 30 of the judgment) and that a Turkish worker was not in that situation during a period in which a decision refusing him the right of residence was suspended in his favour as a consequence of the judicial proceedings brought by him against that decision and in which he obtained authorization, on a provisional basis pending the outcome of those proceedings, to reside and be employed in the Member State in question (paragraph 31).
13 The same must apply to a case such as that in the main proceedings where suspension is not an automatic consequence, by operation of law, of judicial proceedings but is ordered with retroactive effect by a court. In both cases, as the Advocate General observes in paragraph 30 of his Opinion, the suspension is effective only for the duration of the proceedings and has the effect of allowing the person who initiated them to remain and work on a provisional basis pending a final decision on his right of residence.
14 That conclusion cannot be invalidated by the fact that, as in the main proceedings, the person concerned has obtained a judgment at first instance which upholds his right of residence but which, since it is challenged on appeal, may yet be set aside and therefore does not definitively regulate his situation as regards his right of residence.
15 The reason for which, in paragraph 31 of its judgment in Sevince, the Court declined to regard as periods of legal employment those completed while the decision refusing the person concerned the right of residence was suspended as a consequence of the proceedings brought by him against that decision was to prevent a Turkish worker from being able to contrive to fulfil that condition and, as a result, to obtain the grant of the right of residence inherent in the right, under the third indent of Article 6(1) of Decision No 1/80, of free access to any paid employment, during a period when he enjoyed a right of residence only provisionally pending the outcome of the dispute.
16 That reason retains its validity so long as it is not definitively established that during the period in question the person concerned 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 the third indent of Article 6(1) during a period when he did not fulfil the conditions laid down in that provision.
17 Mr Kus' s argument that failure to take into consideration a judgment at first instance upholding a Turkish national' s right of residence would mean that a refusal, even if unlawful, to renew a residence permit would be such as to deprive the person concerned of the rights which he may derive from Article 6(1) of Decision No 1/80 is irrelevant, since, should that person be finally recognized as having the right of residence, he must be deemed retroactively to have enjoyed, throughout the period in question, a right of residence that was no longer provisional and, accordingly, to have had the benefit of a stable situation as a member of the labour force.
18 Accordingly, the answer to the first question must be that the third indent of Article 6(1) of Decision No 1/80 must be interpreted as meaning that a Turkish worker does not fulfil the requirement, laid down in that provision, of having been engaged in legal employment for at least four years, where he was employed on the basis of a right of residence 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, even though his right of residence has been upheld by a judgment at first instance against which an appeal is pending.
Second question
20 On that point, it should first be noted that Article 6(1) of Decision No 1/80 is confined to regulating the situation of the Turkish worker with respect to employment, and makes no reference to his situation as far as the right of residence is concerned (see the judgment in Sevince, paragraph 28).
21 It should be noted that, according to its wording, Article 6(1) applies to Turkish workers duly registered as belonging to the labour force of a Member State and that, under the first indent, a Turkish worker needs only to have been in legal employment for more than one year in order to be entitled to the renewal of his permit to work for the same employer. That provision does not therefore make that right dependant on any other condition, such as the circumstances under which the right of entry and residence was obtained.
22 Accordingly, even though legal employment within the meaning of Article 6(1) presupposes a stable and secure situation as a member of the labour force and, by virtue of this, implies the existence of an undisputed right of residence and indeed, if necessary, possession of a lawful residence permit, the reasons for which that right was conferred, or for which the residence permit was granted, are not decisive for the purposes of their application.
23 It follows that once a Turkish worker has been employed for more than one year under a valid work permit, he must be regarded as fulfilling the conditions laid down in the first indent of Article 6(1) of Decision No 1/80, even though his residence permit was initially granted to him for a purpose other than that of engaging in paid employment.
25 However that may be, it should be pointed out that such a situation would merely reflect the fact 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, particularly in Article 6, the situation of Turkish workers already integrated into the labour force of a Member State. That situation cannot, therefore, in the case of Turkish workers who are already in possession under the legislation of a Member State of a work permit and who, where required, hold a right of residence constitute justification for depriving them of the rights provided for in Article 6(1) of Decision No 1/80.
29 It also held, in that judgment, in the context of the third indent of Article 6(1) of Decision No 1/80 that even though that provisions governs the situation of the Turkish worker only with respect to employment and not to the right of residence, those two aspects of the personal situation of a Turkish worker are closely linked and that, by granting to such a worker, after a specified period of legal employment in the Member State, access to any paid employment of his choice, the provision in question necessarily implies ° since otherwise the right granted by it to the Turkish worker would be deprived of any effect ° the existence, at least at that time, of a right of residence for the person concerned (paragraph 29 of the judgment).
30 The same is also true as regards the first indent of Article 6(1) of Decision No 1/80, since without a right of residence the grant to the Turkish worker, after one year' s legal employment, of the right to renewal of his permit to work for the same employer would likewise be deprived of any effect.
31 That conclusion cannot be invalidated by the consideration that under Article 6(3) of Decision No 1/80 the procedures for applying paragraph (1) are to be established under national rules. As the Court has already observed in its judgment in Sevince (paragraph 22), Article 6(3) of Decision No 1/80 merely clarifies the obligation incumbent on the Member States to take such administrative measures as may be necessary for the implementation of that provision, without empowering them to make conditional or restrict the application of the precise and unconditional right which the provision grants to Turkish workers.
33 Neither of those examples is relevant. Far from demonstrating that an individual may enjoy a right of access to the employment market without a right of residence, they underline the fact that the right of residence is indispensable to access to and engagement in paid employment.
35 Secondly, the Court recognized in Antonissen that, on the basis of the Treaty provisions on freedom of movement for workers, Community nationals have a right of residence on the territory of the Member States not only in order to reply to offers of employment actually made but also for the purpose of seeking such employment.
36 Accordingly, the answer to the third question must be that a Turkish worker who fulfils the requirements of the first or third indent of Article 6(1) of Decision No 1/80 may rely directly on those provisions in order to obtain the renewal not only of his work permit but also of his residence permit.