10.9.2011

Official Journal of the European Union

C 269/23

Reference for a preliminary ruling from the Hamburgisches Oberverwaltungsgericht (Germany) lodged on 31 May 2011 — Atilla Gülbahce v Freie und Hansestadt Hamburg

(Case C-268/11)

2011/C 269/43

Language of the case: German

Referring court

Hamburgisches Oberverwaltungsgericht

Parties to the main proceedings

Applicant: Atilla Gülbahce

Defendant: Freie und Hansestadt Hamburg

Questions referred

Is Article 10(1) of Decision No 1/80 (1) to be interpreted as meaning

(a)

that a Turkish worker who has been duly granted a permit to take up employment in the territory of a Member State for a particular period (which may be unlimited) that extends beyond the duration of his residence permit (‘overrunning work permit’) may exercise his rights under that permit for the whole of that period provided that this is not precluded on grounds relating to the protection of a legitimate national interest such as public policy, public security or public health,

(b)

and that a Member State is prohibited from refusing a priori to recognise that permit as having any effect on his residence status on the basis of national provisions in force at the time when the permit was granted which make the work permit dependent on the residence permit (in accordance with the judgments in Case C-416/96 El-Yassini [1999] ECR I-1209, paragraph 3 of the summary of the judgment, paragraphs 62 to 65 of the grounds, concerning the scope of Article 40(1) of the EEC-Morocco Agreement, and Case C-97/05 Gattoussi [2006] ECR I-11917, paragraph 2 of the summary of the judgment, paragraphs 36 to 43 of the grounds, concerning the scope of Article 64(1) of the EC-Tunisia Euro-Mediterranean Agreement)?

If that question is to be answered in the affirmative:

Is Article 13 of Decision No 1/80 to be interpreted as meaning that the standstill clause also prohibits a Member State, by means of a legislative provision (in this case, the Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet (Law on the Residence, Gainful Employment and Integration of Foreign Nationals in Federal Territory) of 30 July 2004), from depriving a Turkish worker duly registered as belonging to its labour force of the possibility of relying on a breach of the principle of non-discrimination contained in Article 10(1) of Decision No 1/80 by reason of a work permit previously granted to him for a period extending beyond the duration of the residence permit?

If that question is to be answered in the affirmative:

Is Article 10(1) of Decision No 1/80 be interpreted as meaning that the principle of non-discrimination there laid down does not in any event prohibit the national authorities, in accordance with national provisions, from withdrawing, after their period of validity has expired, residence permits of limited duration wrongfully granted to a Turkish worker under national law for such periods of time during which the Turkish worker actually made use of a work permit of unlimited duration which had previously been duly granted to him and was in employment?

Is Article 10(1) of Decision No 1/80 further to be interpreted as meaning that that provision covers only employment in which a Turkish worker who is in possession of a work permit which has been duly granted to him by the national authorities for an unlimited period and without restrictions ratione materiae is engaged at the time when his residence permit, which has been granted for a limited period for a different purpose, expires, and that a Turkish worker in that situation cannot therefore ask the national authorities, even after having permanently left that employment, to grant him further right of residence for the purposes of new employment — which may be taken up after an interval of time needed to look for another job?

Is Article 10(1) of Decision No 1/80 further to be interpreted as meaning that the principle of non-discrimination (only) bars the national authorities of the host Member State from taking measures, after the last-issued residence permit has expired, to repatriate a Turkish national duly registered as belonging to its labour force to whom it originally granted specific rights in relation to employment which were more extensive than his rights of residence, in so far as such measures do not serve to protect a legitimate national interest, but does not require them to issue a residence permit?

(1) Decision 1/80 of the Association Council of 19 September 1980 on the development of the EEC-Turkey Association