—

Mr Gülbahce, by M. Prottung, Rechtsanwalt,

—

the German Government, by T. Henze and J. Möller, acting as Agents,

—

the European Commission, by V. Kreuschitz and G. Rozet, acting as Agents,

1

This reference for a preliminary ruling concerns the interpretation of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association set up by the Agreement establishing an Association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963 by the Republic of Turkey, on the one hand, and by the Member States of the EEC and the Community, on the other, 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) (‘Decision No 1/80’ and ‘the Association Agreement’ respectively).

2

The reference has been made in proceedings between Mr Gülbahce and the Freie und Hansestadt Hamburg (Free and Hanseatic City of Hamburg) concerning the latter’s withdrawal of Mr Gülbahce’s residence permit.

3

The Association Agreement is intended, in accordance with Article 2(1) thereof, to promote the continuous and balanced strengthening of trade and economic relations between the parties, while taking full account of the need to ensure an accelerated development of the Turkish economy and to improve the level of employment and the living conditions of the Turkish people.

4

Under Article 12 of the Association Agreement, ‘the Contracting Parties agree to be guided by Articles [39 EC], [40 EC] and [41 EC] for the purpose of progressively securing freedom of movement for workers between them’ and, under Article 13 of that agreement, those parties ‘agree to be guided by Articles [43 EC] to [46 EC] and [48 EC] for the purpose of abolishing restrictions on freedom of establishment between them’.

5

Article 22(1) of the Association Agreement is worded as follows:

‘In order to attain the objectives of [the Association] Agreement the Council of Association shall have the power to take decisions in the cases provided for therein. Each of the Parties shall take the measures necessary to implement the decisions taken …’

6

Article 6 of Decision No 1/80 states:

‘(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:

(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.’

7

Article 7 of Decision No 1/80 provides:

‘The members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State, who have been authorised to join him:

Children of Turkish workers who have completed a course of vocational training in the host country may respond to any offer of employment there, irrespective of the length of time they have been resident in that Member State, provided one of their parents has been legally employed in the Member State concerned for at least three years.’

8

Article 10 of Decision No 1/80 provides:

‘(1)   The Member States of the Community shall, as regards remuneration and other conditions of work, grant Turkish workers duly registered as belonging to their labour forces treatment involving no discrimination on the basis of nationality between them and Community workers.

(2)   Subject to the application of Articles 6 and 7, the Turkish workers referred to in paragraph 1 and members of their families shall be entitled, on the same footing as Community workers, to assistance from the employment services in their search for employment.’

9

Article 13 of Decision No 1/80 states:

‘The Member States of the Community and Turkey may not introduce new restrictions on the conditions of access to employment applicable to workers and members of their families legally resident and employed in their respective territories.’

10

Paragraph 5 of the Law on the Entry and Residence of Foreign Nationals in Federal Territory (Gesetz über die Einreise und den Aufenthalt von Ausländern im Bundesgebiet) of 9 July 1990 (BGBl. 1990 I, p. 1354) (‘the AuslG’), which is entitled ‘Categories of documents evidencing a right of residence’, states in point 1 thereof:

‘The right of residence shall be granted in the form of:

11

Paragraph 19 of the AuslG, which is entitled ‘Independent right of residence of spouses’, provides:

‘(1)   Should the matrimonial cohabitation cease to exist, the spouse’s residence permit shall be extended as an independent right of residence unconnected with the ground for granting the right of residence mentioned in Paragraph 17(1), where

…

(2)   In the cases referred to in point 1, the residence permit shall be extended by one year; that extension does not preclude payment of social assistance, without prejudice to the third sentence of point 1. The residence permit may thereafter be extended for a limited period, as long as the conditions for the grant of an indefinite extension have not been met.

...’

12

Paragraph 23 of the AuslG, which is entitled ‘Foreign members of the family of German nationals’, provides in point 1 thereof:

‘A residence permit shall be granted, under Paragraph 17(1),

…

where the German national in question is habitually resident in Federal territory;

…’

13

Paragraph 1 of the Regulation governing work permits for non-German workers (Verordnung über die Arbeitserlaubnis für nichtdeutsche Arbeitnehmer), in the version published on 12 September 1980 (BGBl. 1980 I, p. 1754) (‘the AEVO’), states:

‘The permit under Paragraph 19(1) of the Law on the promotion of employment (work permit) may be granted, in accordance with the situation of and developments in the labour market,

14

Paragraph 2 of the AEVO, which is entitled ‘Special work permit’, provides in point 1:

‘Work permits are independent of the situation of and developments in the labour market and shall be granted without the limitations laid down in Paragraph 1(1)(1) where the worker

…

…’

15

Paragraph 4(2) of the AEVO provides:

‘The work permit referred to in Paragraph 2(1) and (2).1 and .2 shall be valid for five years. It shall be granted without restrictions on validity to workers who have resided regularly and continuously for eight years, before the beginning of the validity of the work permit, within the area of validity of the present regulation.’

16

Paragraph 284 of Book Three of the Social Law Code (Sozialgesetzbuch, Drittes Buch), in the version in force from 1 January 1998 to 31 December 2003 (BGBl. 1997 I, p. 594) (‘the SGB III’), states:

‘(1)   Foreign nationals may pursue employment only with the permission of the Agentur für Arbeit (Employment Office) and may be employed by employers only if they have obtained such permission.

…

(5)   A work permit may be granted only if the foreign national holds a residence permit under Paragraph 5 of [the AuslG], unless otherwise provided by regulation and unless the pursuit of employment is precluded by a condition provided under the law relating to foreign nationals.’

17

Paragraph 286 of the SGB III, which is entitled ‘Work permit of unlimited duration’, provides:

‘(1)   A work permit of unlimited duration shall be issued where the foreign national

Exceptions to the provisions of the first sentence, point 1, are permissible with regard to specific categories of persons determined by legal provisions.

…

(3)   A work permit of unlimited duration shall be granted without any time-limit and without any restrictions with regard to undertakings, relevant professions or regions, subject to any legal provision to the contrary.’

18

Paragraph 2 of the Regulation governing work permits for foreign workers (Verordnung über die Arbeitsgenehmigung für ausländische Arbeitnehmer) of 17 September 1998 (BGBl. 1998 I, p. 2899) (‘the ArGV’), which is entitled ‘Work permit of unlimited duration’, provides in point 1:

‘Notwithstanding the first sentence, point 1, of Paragraph 286(1)(1) of the SGB III, a work permit of unlimited duration shall also be granted if the foreign national

...’

19

Paragraph 5 of the ArGV, which is entitled ‘Relationship with the right of residence’, provides:

‘Notwithstanding Paragraph 284(5) of the SGB III, a work permit may also be granted to foreign nationals

20

Under Paragraph 8(1).1 of the ArGV, the work permit ceases to be valid if the foreign national fails to fulfil any of the conditions set out in Paragraph 5.

21

The Law on the residence, gainful employment and integration of foreign nationals in federal territory (Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet) of 30 July 2004 (BGBl. 2004 I, p. 1950), as amended (BGBl. 2008 I, p. 162) (‘the AufenthG’), entered into force on 1 January 2005. Paragraph 4 of the AufenthG, which is entitled ‘Residence permit requirement’, states in points 2 and 5:

‘(2)   A residence permit authorises the taking-up of paid employment, except where the present Law provides otherwise, where the residence permit expressly allows the taking-up of such employment. Each residence permit must state whether the taking-up of paid employment has been authorised. A foreign national who is not in possession of a residence permit for the purposes of taking up employment cannot be authorised to take up employment unless the Federal Labour Agency has indicated its agreement or a regulation provides that taking up such employment without that agency’s authorisation is permissible. Any restrictions imposed on the issue of the authorisation by that agency must be mentioned in the residence permit.

...

(5)   A foreign national who has a right of residence under the Association Agreement … is required to prove the existence of that right by furnishing the evidence that he holds a residence permit if he does not possess either a national or an EU permanent residence permit. The residence permit shall be issued on request.’

22

Paragraph 105 of the AufenthG, which is entitled ‘Continued validity of work permits’, provides in point 2:

‘A work permit issued before the entry into force of the present Law shall be regarded as constituting unrestricted authorisation by the Federal Labour Agency to take up employment.’

23

Mr Gülbahce, a Turkish national, married a German national in June 1997. On 8 June 1998, he entered Germany with a visa issued on the ground of family reunification. In July 1998, the German authorities granted him a residence permit which was subsequently extended in June 1999, August 2001 and January 2004. At the same time, on 29 September 1998, the competent employment office granted Mr Gülbahce a work permit of unlimited duration.

24

In July 2005, the German authorities learned that Mr Gülbahce’s wife had made a declaration, in November 1999, that she had been living apart from him since 1 October 1999. After having heard Mr Gülbahce, and by decision of 6 February 2006, which was confirmed by decision of 29 August 2006, the Freie und Hansestadt Hamburg withdrew, with retroactive effect, the extensions of Mr Gülbahce’s residence permit granted in August 2001 and January 2004. According to the Freie und Hansestadt Hamburg, the extensions to Mr Gülbahce’s residence permits were invalid because Mr Gülbahce had not lived in matrimonial cohabitation with his wife for two years. Moreover, Mr Gülbahce was not entitled to have that residence permit extended under the first indent of Article 6(1) of Decision No 1/80 as he had not been employed with the same employer for at least one year.

25

By judgment of 3 July 2007, the Verwaltungsgericht Hamburg (Administrative Court, Hamburg) dismissed the action brought by Mr Gülbahce. On appeal, the Hamburgisches Oberverwaltungsgericht, by a judgment of 29 May 2008, varied that judgment.

26

According to the Hamburgisches Oberverwaltungsgericht, although Mr Gülbahce had not established the existence of matrimonial cohabitation for two years and although he could also not rely on the first indent of Article 6(1) of Decision No 1/80, his residence permit ought to have been extended on account of the combined effect of the work permit of unlimited duration granted to him in September 1998 and Article 10(1) of Decision No 1/80, read in conjunction with the case‑law of the Court of Justice concerning the prohibitions of discrimination laid down in the agreements entered into by the European Union with the Republic of Tunisia and the Kingdom of Morocco.

27

In that regard, the Hamburgisches Oberverwaltungsgericht held that, in so far as Mr Gülbahce was duly registered as belonging to the labour force in both August 2001 and January 2004, the right actually to engage in employment could have been denied to him only on grounds of the protection of a legitimate national interest; such grounds, however, did not exist in the present case.

28

On appeal by the Freie und Hansestadt Hamburg, the Bundesverwaltungsgericht (Federal Administrative Court) set aside, by judgment of 8 December 2009, the judgment of the Hamburgisches Oberverwaltungsgericht of 29 May 2008 and referred the case back to that court for it to rule on the matter afresh.

29

According to the Hamburgisches Oberverwaltungsgericht, the Bundesverwaltungsgericht took the view that Article 10(1) of Decision No 1/80 conferred neither a right to be granted a retroactive resident permit nor a right of residence independent of specific employment. In that regard, the work permit issued before the entry into force of the AufenthG, namely 1 January 2005, only constituted an internal administrative authorisation from that date onwards. In addition, such legislation cannot be found to be contrary to the ‘standstill’ clause in Article 13 of Decision No 1/80 since the granting of a work permit of unlimited duration for spouses of German nationals was introduced by the ArGV only in September 1998, whereas the law in force in 1980, to which Article 13 relates, allowed a work permit of unlimited duration to be issued only after a regular and uninterrupted period of residence of 8 years.

30

The Hamburgisches Oberverwaltungsgericht took the view that an interpretation of European Union law was required to enable it to determine the dispute before it, and accordingly decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

If that question is answered in the affirmative:

If that question is answered in the affirmative:

31

At the outset, it should be noted that, even though, formally, the referring court has limited its questions to the interpretation of Articles 10(1) and 13 of Decision No 1/80, such a situation does not prevent the Court from providing the referring court with all the elements of interpretation of European Union law which may be of assistance in adjudicating on the case before it, whether or not that court has specifically referred to them in the questions (see Case C-251/06 ING. AUER [2007] ECR I-9689, paragraph 38, and Case C-434/09 McCarthy [2011] ECR I-3375, paragraph 24).

32

In that regard, it should be recalled that the Court has consistently held that, in the application of Article 267 TFEU, it may extract from the wording of the questions formulated by the referring court, and having regard to the facts stated by the latter, those elements which concern the interpretation of European Union law, for the purpose of enabling that court to resolve the legal problems before it (Case C-420/07 Apostolides [2009] ECR I-3571, paragraph 63 and the case‑law cited).

33

In the present case, the referring court points out in its decision that the withdrawal, with retroactive effect, of the decisions of August 2001 and January 2004 extending the duration of Mr Gülbahce’s residence permit was based on the fact that he had been living apart from his spouse since 1 October 1999, matrimonial cohabitation constituting a condition to which the right of residence was subject pursuant to the combined provisions of the AuslG, the AEVO, the SGB III and the ArGV.

34

The referring court also states that, at the time of that retroactive withdrawal, namely 6 February 2006, Mr Gülbahce had been employed by the same employer for more than one year, with the result that, in principle, the conditions for considering that he was duly registered as belonging to the labour force within the meaning of the first indent of Article 6(1) of Decision No 1/80 were satisfied.

35

It is thus necessary to reformulate the questions referred into one single question which must be understood as seeking, in essence, to ascertain whether the first indent of Article 6(1) of Decision No 1/80 must be interpreted as precluding the competent national authorities from withdrawing the residence permit of a Turkish worker with retroactive effect from the point in time at which there was no longer compliance with the ground on the basis of which his residence permit had been issued under national law if that withdrawal occurs after the completion of the one-year period of legal employment provided for in the first indent of Article 6(1).

36

In that regard, it should be borne in mind that the rights which are conferred on Turkish workers by the provisions set out in Article 6(1) of Decision No 1/80 are progressively extended in proportion to the duration of paid legal employment and are intended to consolidate progressively the position of the persons concerned in the host Member State (see, inter alia, Case C-230/03 Sedef [2006] ECR I-157, paragraph 34).

37

As is apparent from the first indent of Article 6(1) of Decision No 1/80, a Turkish worker is entitled, after one year’s legal employment, to continue in paid employment with the same employer.

38

According to the case‑law of the Court, that right, in order to be effective, necessarily implies a concomitant right of residence for the person concerned (see, inter alia, Case C-383/03 Dogan [2005] ECR I-6237, paragraph 14).

39

The legality of the employment of a Turkish national in the host Member State, within the meaning of the first indent of Article 6(1) of Decision No 1/80, presupposes a stable and secure situation as a member of the labour force of that Member State and, by virtue of this, implies an undisputed right of residence (Case C-237/91 Kus [1992] ECR I-6781, paragraph 22, and Case C-337/07 Altun [2008] ECR I-10323, paragraph 53).

40

In the present case, as stated in paragraph 34 above, it is common ground that the condition of legal employment for one year laid down in the first indent of Article 6(1) of Decision No 1/80 had been fulfilled at the date of the retroactive withdrawal of the extensions granted to Mr Gülbahce’s residence permit, namely 6 February 2006.

41

According to the national authorities, such a withdrawal is based on the finding that, on the one hand, that condition had not been fulfilled in August 2001 and January 2004, the times at which extensions were granted to Mr Gülbahce’s residence permit, and, on the other, Mr Gülbahce was no longer, on those dates, in compliance with the condition of matrimonial cohabitation with a German national to which his residence permit was subject.

42

Consequently, according to the national authorities, if a Turkish worker no longer complies, in the course of the first year of employment, with the conditions subject to which his residence permit has been issued to him, his right of residence is no longer uncontested, with the result that, as from that point in time, the periods of work completed by that worker cannot be taken into account for the purpose of the acquisition of the rights referred to in the first indent of Article 6(1) of Decision No 1/80 on the ground that that worker does not comply with the condition of one year’s legal employment in accordance with the Court’s case‑law.

43

However, such an argument has been expressly rejected by the Court, specifically with regard to provisions of national law which made a Turkish national’s right to residence subject to matrimonial cohabitation with a national of the Member State concerned.

44

In its judgment of 29 September 2011 in Case C-187/10 Unal [2011] ECR I-9045, delivered after the reference for a preliminary ruling had been made in the present case, the Court has already had occasion to hold that, in the case where a Turkish national may legitimately rely on rights pursuant to a provision of Decision No 1/80, those rights are no longer dependent on the continuing existence of the circumstances which gave rise to them, as no condition of that nature is laid down by that decision (Unal, paragraph 50).

45

In that regard, it was pointed out that, under the first indent of Article 6(1) of Decision No 1/80, 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, since that provision does not make recognition of that right dependant on any other condition, such as the circumstances under which the right of entry and residence was obtained (Unal, paragraph 38 and the case‑law cited).

46

Thus, the Court held that a Turkish worker who has been employed for more than one year under a valid work permit has to 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 had initially been granted to him for a purpose other than that of engaging in paid employment (Unal, paragraph 39 and the case‑law cited).

47

It is true that, as European Union law stands at present, Decision No 1/80 does not at all encroach upon the competence of the Member States to refuse Turkish nationals the right of entry into their territories and to take up first employment there. Nor does that decision preclude those Member States, in principle, from regulating the conditions under which those persons work for up to one year as provided for in the first indent of Article 6(1) of Decision No 1/80 (see Unal, paragraph 41 and the case‑law cited).

48

Article 6(1) of Decision No 1/80 cannot, however, be construed as permitting a Member State to modify unilaterally the scope of the system of gradual integration of Turkish workers in the host Member State’s labour force by denying to a worker who has been permitted to enter its territory and who has lawfully pursued a genuine and effective economic activity for a continuous period of more than one year with the same employer the rights which the three indents of that provision confer on him progressively according to the duration of his employment (see Unal, paragraph 42 and the case‑law cited).

49

Such an interpretation would render Decision No 1/80 meaningless and deprive it of any practical effect, since the wording of Article 6(1) of that decision is general and unconditional in that it does not permit the Member States to restrict the rights which that provision confers directly on Turkish workers (Unal, paragraphs 43 and 44 and the case‑law cited).

50

It is true that the employment of a Turkish national under a residence permit which was issued to him as a result of fraudulent conduct which has led to a conviction or under a provisional residence permit which is valid only pending a final decision on his right of residence cannot give rise to any rights in favour of that national under Article 6(1) of Decision No 1/80 (see Unal, paragraph 47).

51

However, in the case in the main proceedings, and in contrast to the case which gave rise to the judgment in Case C-285/95 Kol [1997] ECR I-3069, which involved a sham marriage, it is not apparent from the order for reference that Mr Gülbahce was employed under a residence permit which had been issued to him as a result of fraudulent conduct or that his residence permit was valid only pending a final decision.

52

In addition, under Paragraph 2(1)(2) of the AEVO and Paragraphs 2(1)(1) and 5 of the ArGV, Mr Gülbahce had a right of residence which allowed him to engage freely in paid employment from 29 September 1998, that is to say, the date on which the competent employment office granted him a work permit of unlimited duration. The referring court has stated in that regard that it has not been found that Mr Gülbahce’s right to enter and reside in Germany was obtained by fraud.

53

It is not, therefore, in dispute that Mr Gülbahce complied with the conditions laid down by law or regulation in the host Member State as far as entry into its territory and employment were concerned.

54

In those circumstances, not to accept that Mr Gülbahce has been legally employed in Germany for more than one year would be contrary to the first indent of Article 6(1) of Decision No 1/80.

55

Consequently, the periods of employment which were completed by Mr Gülbahce after he had obtained a residence and work permit, and before the withdrawal, with retroactive effect, of the decisions extending the duration of that residence permit, must be regarded as satisfying the condition of one year’s legal employment within the meaning of the first indent of Article 6(1) of Decision No 1/80.

56

In the light of the foregoing, the answer to the questions referred, as reformulated by the Court, is that the first indent of Article 6(1) of Decision No 1/80 must be interpreted as precluding the competent national authorities from withdrawing the residence permit of a Turkish worker with retroactive effect from the point in time at which there was no longer compliance with the ground on the basis of which his residence permit had been issued under national law if there is no question of fraudulent conduct on the part of that worker and that withdrawal occurs after the completion of the period of one year of legal employment provided for in the first indent of Article 6(1) of Decision No 1/80.

57

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

The first indent of Article 6(1) of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association set up by the Agreement establishing an Association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963 by the Republic of Turkey, on the one hand, and by the Member States of the EEC and the Community, on the other, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, must be interpreted as precluding the competent national authorities from withdrawing the residence permit of a Turkish worker with retroactive effect from the point in time at which there was no longer compliance with the ground on the basis of which his residence permit had been issued under national law if there is no question of fraudulent conduct on the part of that worker and that withdrawal occurs after the completion of the period of one year of legal employment provided for in the first indent of Article 6(1) of Decision No 1/80.