Recep Tetik v Land Berlin.
Date: 1997-01-23
1 By order of 11 April 1995, received at the Court on 7 June 1995, the Bundesverwaltungsgericht (Federal Administrative Court) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of the third indent of Article 6(1) of Decision No 1/80 of the Council of Association of 19 September 1980 on the development of the Association (hereinafter `Decision No 1/80').  The Council of Association was set up by the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey and by the Member States of the EEC and the Community, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113, p. 1, hereinafter `the Agreement').
19 According to the third recital in its preamble, Decision No 1/80 on the development of the Association, which the Council of Association subsequently adopted on 19 September 1980, 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.
20 The provisions of Section 1 (`Questions relating to employment and the free movement of workers') of Chapter II (`Social provisions') 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 (see paragraphs 14 and 19 of Bozkurt, cited above).  The Court accordingly considered it essential to transpose, 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 Bozkurt, paragraph 20).
21 It must first be noted in this regard that, as the Court has consistently held (see, in particular, Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781, paragraph 25), 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.
22 Second, it must be pointed out that, since its 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).
23 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 legal employment in the relevant Member State (Eroglu, paragraph 12).
24 Third, it should also be borne in mind that the Court has consistently held that the rights which the three indents of Article 6(1) confer on a Turkish worker 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).
26 In that regard, it is first of all evident from the express terms of Article 6(1) that, in contrast to the first two indents, which merely set out the arrangements under which a Turkish national who has lawfully entered the territory of a Member State and has been authorized there to engage in employment may work in the host Member State, by continuing to work for the same employer after one year's legal employment (first indent) or by responding, after three years of legal employment and subject to the priority to be given to workers from the Member States, to an offer of employment made by another employer for the same occupation (second indent), the third indent confers on a Turkish worker not only the right to respond to a prior offer of employment but also the unconditional right to seek and take up any employment freely chosen by the person concerned, without any possibility of this being subject to priority for workers from the Member States.
27 Next, the Court has already held, with regard to the free movement of workers who are nationals of Member States, that Article 48 of the Treaty entails the right for the latter to reside in another Member State for the purpose of seeking employment there and that, while the duration of the stay of a person seeking employment in the Member State concerned may be limited under the relevant national legislation, to give full effect to Article 48 none the less requires that the person concerned be given a reasonable time in which to apprise himself, in the territory of the Member State which he has entered, of offers of employment corresponding to his occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged (see, in this connection, Case C-292/89 Antonissen [1991] ECR I-745, paragraphs 13, 15 and 16).
28 As pointed out in paragraph 20 of this judgment, the principles enshrined in Articles 48, 49 and 50 of the Treaty must, so far as possible, inform the treatment of Turkish workers who enjoy the rights conferred by Decision No 1/80.
29 In contrast to nationals of Member States, Turkish workers are, admittedly, not entitled to move freely within the Community but benefit only from 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.
30 Nevertheless, a Turkish worker such as the appellant in the main proceedings must be able, for a reasonable period, to seek effectively new employment in the host Member State and must have a corresponding right of residence during that period, notwithstanding the fact that he himself terminated his previous contract of employment without entering immediately into a new employment relationship.
31 As the Commission has convincingly argued, to give full effect to the third indent of Article 6(1) of Decision No 1/80 a Turkish worker must, after at least four years of legal employment in a Member State, be entitled to leave his employment on personal grounds and, for a reasonable period, seek new employment in the same Member State, since his right of free access to any paid employment of his choice within the meaning of that provision would otherwise be deprived of its substance.
36 In that connection, it must first be pointed out that Article 6(2) provides, for the purpose of calculating the periods of legal employment referred to in the three indents of Article 6(1), preferential rules in favour of a Turkish worker who temporarily ceases work, distinguishing those periods of inactivity according to their type and duration.
37 The first sentence of Article 6(2) concerns those periods, in principle of short duration, during which he does not in fact pursue his work (annual holidays, maternity leave, absences because of accidents at work or sickness involving only a brief cessation of work).  These absences of the worker from his place of work are, consequently, treated as periods of legal employment for the purposes of Article 6(1).
38 The second sentence of Article 6(2) relates to periods of inactivity due to long-term sickness or involuntary unemployment, that is to say, where the failure to work is not attributable to any misbehaviour on the part of the worker (as also follows from the use of the adjective `unverschuldet' in the German version).  It provides that, although periods of inactivity of this type cannot be treated as periods of legal employment, they do not affect rights which the worker has acquired as the result of preceding periods of legal employment.
39 The sole purpose of this latter provision is therefore to prevent a Turkish worker who recommences employment after having been forced to stop working because of long-term illness or unemployment through no fault of his own from being required, in the same way as a Turkish national who has never previously been in paid employment in the Member State in question, to recommence the periods of legal employment envisaged by the three indents of Article 6(1).
40 In circumstances where, as in the main proceedings, a Turkish worker who has already been legally employed for more than four years in the host Member State voluntarily leaves his work to seek other employment in that Member State, that worker cannot automatically be treated as having definitively left the labour force of that State, provided, however, that he continues to be duly registered as belonging to the labour force of the Member State in question, within the meaning of the first phrase of Article 6(1).
45 It must be noted in that connection that, in Bozkurt, at paragraphs 38 and 39, the Court held that, in the absence of any express provision to that end, the Turkish national was not entitled to remain in the host Member State after suffering an accident at work which prevents him from engaging in subsequent employment.  In such a case the worker is regarded as having definitively ceased to belong to the labour force of that Member State and the right of residence which he seeks has therefore no connection with paid employment, even in the future.
46 On the other hand, in a case such as that at issue in the main proceedings, it follows from paragraphs 40 to 42 of the present judgment that, provided that the Turkish national is genuinely seeking new employment, complying where appropriate with the requirements of the legislation in force in the host Member State, he must be regarded as continuing to be duly registered as belonging to the labour force of that State for the period reasonably necessary for him to find new employment.  The argument put forward by the German and French Governments cannot therefore be accepted.