Bülent Kurz, né Yüce v Land Baden-Württemberg.
Date: 2002-11-19
26 The first point to be noted in answering this question is that, since the judgment in Case C-192/89 Sevince [1990] ECR I-3461, at paragraph 26, 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 which the three indents of that provision confer on them progressively, according to the duration of their employment in the host Member State (see, in particular, Case C-1/97 Birden [1998] ECR I-7747, paragraph 19).
27 Second, it is also settled case-law that the rights which that provision confers on Turkish workers in regard to employment necessarily imply the existence of a corresponding 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 (see, inter alia, Birden, paragraph 20).
28 Third, it is apparent from the very wording of Article 6(1) of Decision No 1/80 that that provision requires the person concerned to be a Turkish worker in a Member State, to be duly registered as belonging to the labour force of the host Member State and to have been in legal employment there for a certain period (Birden, paragraph 21).
30 As regards the first of the concepts, it should be recalled at the outset that the Court has consistently concluded from the wording of Article 12 of the EEC-Turkey Association Agreement of 12 September 1963 and Article 36 of the Additional Protocol, signed on 23 November 1970, annexed to that agreement and concluded by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1973 C 113, p. 18), as well as from the objective of Decision No 1/80, that the principles enshrined in Articles 48 and 49 of the EC Treaty (now, after amendment, Articles 39 EC and 40 EC) and Article 50 of the EC Treaty (now Article 41 EC) must be extended, so far as possible, to Turkish nationals who enjoy the rights conferred by Decision No 1/80 (see to that effect, inter alia, Case C-434/93 Bozkurt [1995] ECR I-1475, paragraphs 14, 19 and 20; Case C-171/95 Tetik [1997] ECR I-329, paragraphs 20 and 28; Birden, paragraph 23; and Case C-340/97 Nazli [2000] ECR I-957, paragraphs 50 to 55).
32 In that respect, it is settled case-law that the concept of worker has a specific Community meaning and must not be interpreted narrowly. It must be defined in accordance with objective criteria which distinguish an employment relationship by reference to the rights and duties of the persons concerned. In order to be treated as a worker, a person must pursue an activity which is genuine and effective, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary. The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. By contrast, neither the sui generis nature of the employment relationship under national law, nor the level of productivity of the person concerned, the origin of the funds from which the remuneration is paid or the limited amount of the remuneration can have any consequence in regard to whether or not the person is a worker for the purposes of Community law (see, as regards Article 48 of the Treaty, in particular Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraphs 16 and 17; Case 197/86 Brown [1988] ECR 3205, paragraph 21; Case 344/87 Bettray [1989] ECR 1621, paragraphs 15 and 16; Case C-357/89 Raulin [1992] ECR I-1027, paragraph 10; and Case C-3/90 Bernini [1992] ECR I-1071, paragraphs 14 to 17; and, as regards Article 6(1) of Decision No 1/80, Case C-36/96 Günaydin [1997] ECR I-5143, paragraph 31, Case C-98/96 Ertanir [1997] ECR I-5179, paragraph 43, and Birden, paragraphs 25 and 28).
33 As regards, more specifically, activities which, as in the main proceedings, have been carried out in the course of vocational training, the Court has held that a person who serves periods of apprenticeship in an occupation that may be regarded as practical preparation related to the actual pursuit of the occupation in question must be considered to be a worker, provided that the periods are served under the conditions of genuine and effective activity as an employed person. The Court has stated that that conclusion cannot be invalidated by the fact that the productivity of the person concerned is low, that he does not carry out full duties and that, accordingly, he works only a small number of hours per week and thus receives limited remuneration (see to that effect, in particular, Lawrie-Blum, cited above, paragraphs 19, 20 and 21, and Bernini, cited above, paragraphs 15 and 16).
34 It follows that any person who, even in the course of vocational training and whatever the legal context of that training, pursues a genuine and effective economic activity for and under the direction of an employer and on that basis receives remuneration which can be perceived as the consideration for that activity must be regarded as a worker for the purposes of Community law.
37 In order to ascertain whether such a worker is duly registered as belonging to the labour force of a Member State for the purposes of that provision of Decision No 1/80, it is necessary, first, to determine, in accordance with settled case-law (Bozkurt, paragraphs 22 and 23, Günaydin, paragraph 29, Ertanir, paragraph 39, and Birden, paragraph 33, all cited above), 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 activity is pursued and the applicable national legislation in the field of labour and social security law.
39 Second, it is clear from the Court's case-law that the concept of being `duly registered as belonging to the labour force' (`appartenant au marché régulier' in the French version) referred to in Article 6(1) of Decision No 1/80 must be regarded as referring to all workers who have complied with the conditions laid down by law and regulation in the host Member State governing entry into its territory and employment and are thus entitled to pursue an occupation in that State (Birden, paragraph 51, and Nazli, paragraph 31).
40 In substantiating the interpretation that the term `regular' (`régulier') is synonymous with `legal', the Court has relied not only on an analysis of the various language versions in which Decision No 1/80 was drawn up (see Birden, paragraphs 47 to 50) but also on the objective of that decision, whose social provisions constitute a further stage in securing freedom of movement for workers on the basis of Articles 48, 49 and 50 of the Treaty (see Birden, paragraph 52). As the Advocate General has observed in points 60 and 61 of his Opinion, the performance of work under legal conditions promotes integration of the Turkish nationals in the host Member State.
41 Entitlement to the rights enshrined in the three indents of Article 6(1) of Decision No 1/80 is therefore subject only to the condition that the Turkish worker has complied with the legislation of the host Member State governing entry into its territory and pursuit of employment (Nazli, paragraph 32).
43 The Court held in paragraph 51 of the judgment in Birden that the concept of being `duly registered as belonging to the labour force of a Member State' cannot be interpreted as applying to the labour market in general as opposed to a restricted market with a specific objective.
45 Such an interpretation is inconsistent with the aim and broad logic of Decision No 1/80, which seek to promote the integration of Turkish workers in the host Member State (see paragraph 40 of the present judgment). An apprentice who, as in the main proceedings, has pursued a genuine and effective economic activity with an employer for more than four years, in return for which he has received remuneration corresponding to the work performed, is just as integrated in the host Member State as a worker who has carried out comparable work for an equivalent period.
46 Furthermore, the interpretation provided by the Court in paragraphs 40 to 45 of the judgment in Birden, according to which a Turkish national who has lawfully pursued a genuine and effective economic activity in a Member State under a work permit for an uninterrupted period of more than one year for the same employer, in return for which he received the usual remuneration, is duly registered as belonging to the labour force of the host Member State even if, pursuant to the legislation of that State, the activity in question was financed by public funds and restricted to a limited group of persons, in order to facilitate their integration into working life, must apply just as much - if not more so - with regard to gainful activity pursued in the course of vocational training.
48 As regards the question whether such a worker has been in legal employment in the host Member State for the purposes of Article 6(1) of Decision No 1/80, it should be recalled that, according to settled case-law (Sevince, cited above, paragraph 30, Case C-237/91 Kus [1992] ECR I-6781, paragraphs 12 and 22, Bozkurt, paragraph 26, and Birden, paragraph 55), legality of 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 In contrast to the factual and legal circumstances forming the basis of the judgments in Sevince, at paragraph 31, Kus, at paragraphs 13 and 16, and Case C-285/95 Kol [1997] ECR I-3069, at paragraph 27, where the Turkish nationals concerned were not legally entitled to a residence permit in the host Member State, it is clear that in a case such as the main proceedings the Turkish worker's right of residence in the host Member State is not in any way contested and the person concerned was not in a precarious situation that could be called into question at any time.
54 First, it is settled case-law that the rights conferred on Turkish workers by Article 6(1) of Decision No 1/80 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 that effect, Bozkurt, paragraphs 29 and 30, Günaydin, paragraph 49, Ertanir, paragraph 55, and Birden, paragraph 65).
55 Secondly, the Court has repeatedly held that if the temporary nature of the employment contract were sufficient to raise doubts as to whether the employment of the person concerned was in fact `legal employment', Member States would be able wrongly to deprive Turkish migrant workers whom they permitted to enter their territory, and who have pursued an economic activity there which fulfils the conditions laid down in Article 6(1) of Decision No 1/80, of the progressively more extensive rights on which they are entitled to rely directly under that provision. Any other interpretation would render Decision No 1/80 meaningless and deprive it of any practical effect (see Günaydin, paragraphs 36 to 40, and Birden, paragraphs 37, 38, 39 and 64).
56 Finally, the Court has held equally consistently that Article 6(1) of Decision No 1/80 does not make recognition of the rights which it confers on Turkish workers subject to any condition connected with the reason for which the right to enter, work or reside was initially granted (see, in particular, Kus, paragraphs 21, 22 and 23, Günaydin, paragraph 52, and Birden, paragraph 57).
59 Such a Turkish worker has not left the labour market of the host Member State for good and may claim there an extension of his residence authorisation for the purposes of continuing to exercise his right of free access to any paid employment of his choice under that provision, not only by responding to job offers actually made but also by seeking a new job over a reasonable period (see, to that effect, Bozkurt, paragraphs 38 and 39, Tetik, paragraph 46, and Nazli, paragraphs 40 and 41).
66 In answering this question concerning the relationship between Decision No 1/80 and national legislation on aliens, it should be remembered that it follows both from the primacy of Community law over Member States' domestic law and from the direct effect of a provision such as Article 6 of Decision No 1/80 that a Member State is not permitted to modify unilaterally the scope of the system of gradually integrating Turkish workers into the host Member State's labour force (see, in particular, Birden, paragraph 37, and Nazli, paragraph 30).
67 It follows that the Member States cannot adopt legislation concerning the control of aliens or apply a measure relating to residence of a Turkish national on their territory which is liable to impede the exercise of rights expressly granted by Community law to such a national.
68 Where, as in the main proceedings, the Turkish national fulfils the conditions laid down by a provision of Decision No 1/80 and accordingly is already duly integrated in a Member State, the latter no longer has the power to restrict application of those rights, as otherwise that decision would be rendered redundant (see, in particular, Birden, paragraph 37, Nazli, paragraph 30, and Case C-65/98 Eyüp [2000] ECR I-4747, paragraph 41).
69 Furthermore, every court of a Member State must apply Community law in its entirety and protect the rights which Community law confers directly on individuals, setting aside any provision of national law which may conflict with it (see Eyüp, paragraph 42, and, by analogy, Case 106/77 Simmenthal [1978] ECR 629, paragraph 21).