1 By order of 29 February 1996, received at the Court on 26 March 1996, the Verwaltungsgericht (Administrative Court), Darmstadt, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty three questions on the interpretation of Article 6 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).
2 The questions were raised in the course of a dispute between Mr Ertanir, a Turkish national, and Land Hessen, concerning the refusal to extend his permit to reside in Germany.
3 According to the file on the case in the main proceedings, Mr Ertanir was permitted in April 1991 to enter Germany, where he obtained a temporary residence permit valid until 1 August 1991 allowing him to work as a chef specializing in Turkish cuisine in the Ratskeller Restaurant in Weinheim.
4 Despite the fact that he had obtained a work permit which did not expire until April 1992, the competent authorities refused to extend his residence permit on the ground that, under Paragraph 4(4) of the Arbeitsaufenthalteverordnung (Regulation on residence for the purpose of employment) of 18 December 1990 (Bundesgesetzblatt I, p. 2994), specialist chefs permitted to work in Germany must be nationals of the country in the cuisine of which the restaurant specializes, whereas the restaurant in question specialized essentially in Greek cuisine.
5 Subsequently, however, they agreed to allow him to resume employment as a specialist chef in the same restaurant. Mr Ertanir, who had meantime returned to his country of origin, therefore returned to Germany on 14 April 1992. It is common ground that his attention was drawn on several occasions to the fact that under German law specialist chefs were permitted to reside in Germany for no more than a total of three years.
6 Mr Ertanir remained in Germany under an entry visa valid for three months and subsequently a residence permit which expired on 13 April 1993 but was extended to 13 April 1994. However, it was not until 19 April 1994 that he applied for a further extension of his residence permit.
7 Despite that delay of six days, the competent authorities extended the residence permit to 14 April 1995, pointing out again, however, that the total duration of his residence could not exceed three years, as provided for by the German legislation on specialist chefs.
8 Every residence permit issued to Mr Ertanir bore a remark to the effect that the permit to reside in Germany would expire at the end of his employment as specialist chef in the restaurant which had engaged him.
9 Mr Ertanir was employed at the Ratskeller Restaurant, Weinheim, under a work permit which was valid initially until 23 April 1993. On 13 May 1993, that permit was extended for the period from 24 April 1993 to 23 April 1994. On 6 May 1994, it was renewed for the period 24 April 1994 to 23 April 1996.
10 On 13 April 1995 he applied for his residence permit to be extended for two years.
11 His application was rejected on 17 July 1995 on the ground that under German law residence permits for specialist chefs could be granted only for a maximum period of three years and that under a decree of 3 February 1995 issued by the Ministry of the Interior for Hessen Decision No 1/80 did not apply to specialist chefs.
12 The dispute was referred to the Verwaltungsgericht Darmstadt, which considers that Mr Ertanir has exhausted the maximum of three years' residence to which specialist chefs are entitled under Paragraph 4(4) of the Arbeitsaufenthalteverordnung of 18 December 1990 and that an extension of his residence permit is not possible under any other provision of German law. However, it is uncertain whether Mr Ertanir may not claim a right of residence under Article 6(1) of Decision No 1/80.
13 Article 6(1), which appears in Chapter II (Social provisions), Section 1 (Questions relating to employment and the free movement of workers), of Decision No 1/80 is worded as follows: `1. Subject to Article 7 on free access to employment for members of his family, a Turkish worker duly registered as belonging to the labour force of a Member State: - shall be entitled in that Member State, after one year's legal employment, to the renewal of his permit to work for the same employer, if a job is available; - shall be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of Member States of the Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment services of that State, for the same occupation; - shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment. 2. Annual holidays and absences for reasons of maternity or an accident at work or short periods of sickness shall be treated as periods of legal employment. Periods of involuntary unemployment duly certified by the relevant authorities and long absences on account of sickness shall not be treated as periods of legal employment, but shall not affect rights acquired as the result of the preceding period of employment. 3. The procedures for applying paragraphs 1 and 2 shall be those established under national rules.'
14 The Verwaltungsgericht Darmstadt is uncertain first of all whether periods of unauthorized residence or periods without a residence permit, occurring after the first stage provided for in the first indent of Article 6(1) of Decision No 1/80, but which are not treated as periods of legal employment under Article 6(2) of that decision, result in the qualifying period under Article 6(1) continuing to run on the date on which authorized residence is resumed or the work permit extended, without rights that have already arisen being affected thereby, or whether, on the contrary, such periods cause rights that have hitherto arisen to be extinguished. Mr Ertanir's work permit was extended twice with retroactive effect after expiry and it appears that in April 1994 he failed to apply for the extension of his residence permit within the requisite time-limit. The national court points out that in Germany the employer is in a position to ensure that an application for extension is submitted to the employment authorities in good time and that it is normal practice, even in cases where an application for extension has been submitted in good time, not to extend the work permit until after expiry of the authorized period. However, responsibility for ensuring that a residence permit is extended in due time lies exclusively with the holder.
15 The Verwaltungsgericht Darmstadt seeks to ascertain, next, whether a Turkish national who holds work and residence permits granted to him for the purpose of employment as a specialist chef is duly registered as belonging to the labour force of a Member State within the meaning of Article 6(1) of Decision No 1/80 even where he was aware from the beginning of his residence in that Member State that the residence permit was granted only in respect of employment with a specific employer, and where the competent authorities pointed out to him that the residence permit could not be extended beyond a maximum of three years.
16 Finally, the court seeks to ascertain whether, in the light of paragraph 25 of Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781, according to which 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, Article 6(3) of that decision allows the Member States to create rights of residence that do not from the outset include the benefit of Article 6(1) of Decision No 1/80.
17 Taking the view that a decision on the case accordingly required an interpretation of that article, the Verwaltungsgericht Darmstadt stayed proceedings and referred the following three questions to the Court of Justice for a preliminary ruling: `(1) What are the consequences, for the maintenance of work and residence permits, of interruptions in lawful residence or periods of work without a work permit with regard to rights that have already arisen under Article 6(1) of Decision No 1/80 of the EEC-Turkey Association Council on the development of the Association in so far as such periods are not treated as periods of legal employment under Article 6(2) of Decision No 1/80? (2) Is a Turkish employee who holds work and residence permits entitling him to work as a specialist chef duly registered as belonging to the labour force of a Member State within the meaning of Article 6(1) of Decision No 1/80 even if he was aware from the beginning of his residence in that Member State that he would be granted a residence permit only for a total period of three years and only to do specific work for a named employer? (3) If the Court of Justice should take the view that a person as described in Question 2 is duly registered as belonging to the labour force of a Member State, does the power conferred by Article 6(3) of Decision No 1/80 entitle Member States to create rights of residence that do not from the outset confer the benefit of Article 6(1) of Decision No 1/80?'
18 It should be observed at the outset that the first question presupposes that a Turkish migrant worker such as the applicant in the main proceedings falls within the scope of Article 6 of Decision No 1/80. The second and third questions should therefore be answered first, since that problem forms their subject-matter. Furthermore, in view of the link between the second and third questions, they should be considered together. The second and third questions
19 By its second and third questions, the national court seeks first of all to ascertain whether Article 6(3) of Decision No 1/80 is to be interpreted as permitting Member States to adopt national legislation which excludes at the outset whole categories of Turkish migrant workers, such as specialist chefs, from the rights conferred by the three indents of Article 6(1). It then asks whether a Turkish national is duly registered as belonging to the labour force of a Member State and is legally employed, within the meaning of Article 6(1) of Decision No 1/80, so that he may seek the renewal of his permit to reside in the host Member State, even though he was advised when the work and residence permits were granted that they were granted for a maximum of three years and only for specific work, in this case as a specialist chef, for a specific employer.
20 It should be observed, in limine, that according to the third recital in its preamble, Decision No 1/80 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 which the Council of Association set up by the Agreement establishing an Association between the European Economic Community and Turkey adopted on 20 December 1976.
21 The provisions of Section 1 of Chapter II 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. The Court has accordingly considered it essential to extend, 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 the judgments in Case C-434/93 Bozkurt v Staatssecretaris van Justitie [1995] ECR I-1475, paragraphs 14, 19 and 20, and Case C-171/95 Tetik v Land Berlin [1997] ECR I-329, paragraph 20).
22 As the law now stands, however, Turkish nationals are not entitled to move freely within the Community but merely enjoy 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 (Tetik, cited above, paragraph 29).
23 Likewise, the Court has consistently held (see, in particular, the judgment in Kus, cited above, paragraph 25) 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, in Article 6, the situation of Turkish workers already integrated into the labour force of the host Member State.
24 The first point to be noted in that regard is that since the 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).
25 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 the legal employment in the relevant Member State (Eroglu, paragraph 12).
26 Second, it should be borne in mind that the Court has consistently held that the rights which the three indents of Article 6(1) confer on Turkish workers 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).
27 The second and third questions raised by the Verwaltungsgericht Darmstadt must be considered in the light of those principles.
28 The first of those questions, as rephrased in paragraph 19 of this judgment, concerns the scope of Article 6(3) of Decision No 1/80, according to which the procedures for applying Article 6(1) are to be those established under national rules. It is settled case-law (Sevince, paragraph 22, and Kus, paragraph 31, cited above) that that provision merely clarifies the obligation incumbent on the Member States to take such administrative measures as may be necessary for the implementation of Article 6, without empowering them to make conditional or restrict the application of the precise and unconditional right which the provision grants to Turkish workers.
29 Moreover, in Kus, paragraph 25, the Court pointed out that Article 6 of Decision No 1/80 merely regulates the situation of Turkish workers already integrated into the labour force of a Member State and the decision cannot, therefore, constitute justification for depriving Turkish workers already in possession of a work permit and, if necessary, a right of residence in accordance with the legislation of a Member State of the rights provided for in Article 6(1) thereof.
30 It follows that even though, as the law now stands, Decision No 1/80 does not in any way affect the competence of the Member States to refuse the entry into their territories of Turkish nationals and to take up their first employment, and does not, in principle, preclude those Member States from determining the conditions under which they work for up to one year as provided for in the first indent of Article 6(1) of that decision, Article 6(3) merely provides that the competent authorities of the Member States may adopt such national legislation as may be required for the application of the rights conferred on Turkish workers by paragraphs (1) and (2) of that provision.
31 However, that provision cannot be construed as reserving to the Member States the power to adapt as they please the rules governing Turkish workers already integrated in their labour force, permitting them to adopt unilaterally measures preventing certain categories of workers who already satisfy the conditions of Article 6(1) from benefiting from the progressively more extensive rights enshrined in the three indents of that paragraph.
32 The effect of such an interpretation would be to render Decision No 1/80 meaningless and deprive it of any practical effect. Likewise, its purpose would not be achieved if restrictions imposed by a Member State could result in denying Turkish workers the rights which the three indents of Article 6(1) confer on them progressively once they have been in gainful employment in the host Member State for a certain time.
33 Moreover, the wording of Article 6(1) is general and unconditional: it does not permit the Member States to deprive certain categories of Turkish workers of the rights which that provision confers directly on them or to restrict or attach conditions to such rights.
34 Accordingly, national legislation which provides that the work and residence of certain Turkish nationals in the host Member State concerned are limited to a specific activity with a given employer and may on no account exceed three years must be considered to be incompatible with the scheme and purpose of that decision and cannot therefore be adopted under Article 6(3) thereof.
35 Such legislation would undermine the gradual integration of Turkish workers in the host Member State's labour force provided for in the three indents of Article 6(1), by depriving some of those workers - such as the applicant in the main proceedings - who entered that State lawfully and were permitted to take up paid employment there not only of the possibility of continuing to work for the same employer beyond the time-limit unilaterally imposed by the Member State concerned, but also of the right to respond, after three years of legal employment, to an offer of employment made by another employer in the same occupation (second indent) and of free access, after four years of legal employment, to any paid employment of their choice (third indent).
36 That is all the more evident in a case such as that at issue in the main proceedings, where the relevant national legislation not only imposes restrictions capable of depriving Turkish workers of the rights accorded them by Article 6(1) but also provides that Decision No 1/80 does not apply to an entire occupation, in this case that of specialist chef.
37 It follows that the answer to the first of those questions, as rephrased, must be that Article 6(3) of Decision No 1/80 is to be interpreted as meaning that it does not permit Member States to adopt national legislation which excludes at the outset whole categories of Turkish migrant workers, such as specialist chefs, from the rights conferred by the three indents of Article 6(1).
38 As regards the second of those questions, which concerns the interpretation of `duly registered as belonging to the labour force of a Member State' and `legal employment' for the purposes of Article 6(1) of Decision No 1/80 as regards a Turkish worker who has been authorized to work as a specialist chef in a given restaurant for a maximum of three years and who has had his attention expressly drawn to such restrictions, it should be observed from the outset that he was permitted to enter the territory of the Member State concerned and was there lawfully employed, within the terms of the requisite national permits and without interruption for over one year, by the same employer.
39 In order to ascertain whether such a worker is duly registered as belonging to the labour force of a Member State it must be determined first of all, in accordance with settled case-law (Bozkurt, cited above, paragraphs 22 and 23), 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 employment is pursued and the applicable national legislation in the field of employment and social security law.
40 In a situation such as that of the applicant in the main proceedings, that condition is undeniably satisfied.
41 Next, contrary to the German Government's assertion, it cannot be claimed that specialist chefs permitted to work in its territory are not duly registered as belonging to the labour force of a Member State because such persons may be distinguished from the other workers in general by the fact that they must be nationals of the country whose cuisine is the speciality of the restaurant which employs them.
42 The Commission has argued cogently that the occupation of specialist chef does not present, by comparison with other professions and trades in other sectors of the economy, such objective characteristics as to make it possible to exclude Turkish workers legally employed in that occupation in the host Member State from being regarded as duly registered as belonging to the labour force of that Member State, as referred to in Article 6(1), on the sole ground that their occupation is that of specialist chef.
43 A specialist chef performing services for and under the direction of another person for remuneration is bound by an employment relationship covering a genuine and effective economic activity.
44 Accordingly, the legal situation of a specialist chef such as Mr Ertanir is in no way different to that of Turkish migrant workers as a whole employed in the host Member State.
45 The fact that, as in the main proceedings, a Member State imposes on all Turkish nationals whose occupation is that of specialist chef a restriction as to the duration of their residence in the Member State concerned and prohibits them from changing employers cannot affect that interpretation.
46 It follows from paragraphs 31 to 35 of this judgment that such restrictions on the rights deriving from Decision No 1/80 must be considered to be incompatible therewith and are therefore not relevant for the purposes of interpretation.
47 As regards the meaning of `legal employment' for the purposes of Article 6(1) of Decision No 1/80, it is settled case-law (Sevince, paragraph 30, Kus, paragraphs 12 and 22 and Bozkurt, paragraph 26, cited above) that legal 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.
48 Thus, in paragraph 31 of the Sevince judgment, cited above, 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 provisional authorization, pending the outcome of the dispute, to reside and be employed in the Member State in question.
49 Similarly, in Kus, cited above, the Court held that a 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, on the ground that he 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).
50 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, since 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 in which he did not fulfil the conditions laid down in that provision (Kus, cited above, paragraph 16).
51 Finally, in Case C-285/95 Kol v Land Berlin [1997] ECR I-0000, paragraph 27, the Court held that the periods in which a Turkish national was employed under a residence permit which was issued to him only as a result of fraudulent conduct which led to his conviction were not based on a stable situation, and that such employment could not 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.
52 By contrast, as regards the case at issue in the main proceedings, the Turkish worker's right to reside in the host Member State was not disputed and his situation was not insecure and thus likely to be called in question at any time, since he had been authorized in April 1992 to pursue genuine and effective paid employment in that State for three years without interruption and therefore his legal situation was secure throughout that period.
53 A worker employed in such circumstances in a Member State must accordingly be considered to have been legally employed there within the meaning of Article 6(1) of Decision No 1/80 and, provided he satisfies its conditions, may therefore rely directly on the rights conferred by the various indents of that provision.
54 In that regard, it cannot be argued that under the relevant national legislation the worker's residence and/or work permits in the host Member State were merely provisional and conditional.
55 It is settled case-law that the rights conferred on Turkish workers by Article 6(1) 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 this effect, the judgment in Bozkurt, cited above, paragraphs 29 and 30).
56 Furthermore, if conditions or restrictions applied by a Member State to residence and/or work permits for Turkish nationals could result in their lawful employment there being regarded as not legal, Member States would be able wrongly to deprive Turkish migrant workers whom they permitted to enter their territory and who have been legally employed there for an uninterrupted period of at least one year of rights on which they are entitled to rely directly under Article 6(1) (see paragraphs 31 to 35 of this judgment).
57 It follows from the wording, the scheme and the purpose of that provision that Member States may not make conditional or restrict the application of the precise and unconditional rights which Turkish nationals who satisfy its conditions derive from Decision No 1/80 (see paragraphs 28, 32, 33 and 35 of this judgment).
58 Moreover, the fact that the worker was notified upon being issued with his permit to enter the host Member State that his residence and his employment were subject to the observance of certain conditions regarding duration and substance does not affect that interpretation.
59 The term `legal employment' used by Article 6(1) is a concept of Community law which must be defined objectively and uniformly in the light of the spirit and the purpose of the provision.
60 The progressively more extensive rights which the three indents of Article 6(1) confer on Turkish workers derive directly from Decision No 1/80; therefore those rights may not be denied to those entitled to them on the grounds which have been put forward, and no objection can be raised to reliance thereon in circumstances such as those in point in the main proceedings.
61 Accordingly, the interpretation of the concept in question does not depend on subjective circumstances, such as the awareness on the part of the person concerned of the existence of restrictions, of such a kind as to deprive him of rights acquired under Decision No 1/80, to which the national authorities have made subject his residence and/or his work in the host Member State.
62 In view of all the foregoing considerations, the answer to the second of those questions as rephrased in paragraph 19 of this judgment must be that a Turkish national who has been lawfully employed in a Member State for an uninterrupted period of more than one year as a specialist chef by the same employer is duly registered as belonging to the labour force of that Member State and is legally employed within the meaning of Article 6(1) of Decision No 1/80. A Turkish national in that situation may accordingly seek the renewal of his permit to reside in the host Member State notwithstanding the fact that he was advised when the work and residence permits were granted that they were for a maximum of three years and restricted to specific work, in this case as a specialist chef, for a specific employer. The first question
63 By this question, the national court is asking essentially whether Article 6(1) of Decision No 1/80 is to be interpreted as meaning that it requires account to be taken, for the purpose of calculating periods of legal employment as referred to in that provision, of short periods during which the Turkish worker did not hold a valid residence or work permit in the host Member State and which are not covered by Article 6(2) of that decision.
64 In order to answer that question, it must first be pointed out that Decision No 1/80 does not make clear whether periods of employment which a Turkish worker completes in the host Member State without being covered by a valid work or residence permit affect the calculation of the periods of legal employment provided for in the three indents of Article 6(1).
65 The decision merely regulates, in Article 6(2), the effect on the calculation of the periods of legal employment referred to in the three indents of Article 6(1) of certain periods of inactivity which are treated as periods of legal employment within the meaning of paragraph (1) or which do not cause the worker to lose entitlement to the rights acquired by virtue of earlier periods of legal employment (see, in particular, the judgment in Tetik, cited above, paragraphs 36 to 39).
66 Next, it should be recalled that, although 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 (paragraphs 23 and 30 of this judgment), it is settled case-law that the rights referred to in Article 6(1) 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 (paragraph 55 of this judgment).
67 Finally, it should be observed that, in a situation such as that at issue in the main proceedings, first, the periods during which the Turkish worker did not hold in the host Member State a valid residence or work permit were of no more than a few days and, second, he received a new permit each time, the validity of which was moreover extended on two occasions with retroactive effect to the expiry date of the (previous) permit, without the competent authorities challenging on that ground the legality of the residence of the worker in the country.
68 Accordingly, the fact that the person concerned was briefly without a valid residence or work permit does not affect the periods of legal employment referred to in Article 6(1) of Decision No 1/80.
69 The answer to the first question must therefore be that Article 6(1) of Decision No 1/80 is to be interpreted as requiring account to be taken, for the purpose of calculating the periods of legal employment referred to in that provision, of short periods during which the Turkish worker did not hold a valid residence or work permit in the host Member State and which are not covered by Article 6(2) of that decision, where the competent authorities of the host Member State have not called in question on that ground the legality of the residence of the worker in the country but have, on the contrary, issued him with a new residence or work permit.