1. 

The three questions referred to the Court by the Hessischer Verwaltungsgerichtshof (Higher Administrative Court, Hesse) concern the interpretation of a decision adopted by the Council of Association established by the Agreement establishing an Association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963 ( 1 ) (hereinafter ‘the Association Agreement’). They concern, in particular, the question whether a Turkish worker who has worked in Germany for more than nine years has a right to remain in that country even though the reasons for which he entered the territory of that State have ceased to exist.

2. 

The Association Agreement, adopted under Article 238 of the Treaty, is the only external agreement of the Community which regulates the free movement within the Community of nationals of a non-member country. ( 2 )

3. 

Article 12 in Title II on the transitional phase of the Association provides that ‘the Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the European Economic Community for the purpose of progressively securing freedom of movement for workers between them’.

4. 

In order to lay down the conditions for the achievement of that transitional phase, the Contracting Parties signed at Brussels on 23 November 1970 an Additional Protocol, ( 3 ) annexed to the Agreement, Article 36 of which provides that ‘freedom of movement for workers between Members States of the Community and Turkey shall be secured by progressive stages in accordance with the principles set out in Article 12 of the Agreement of Association between the end of twelfth and the twenty-second year after the entry into force of that Agreement’.

5. 

The detailed rules governing freedom of movement under the Association Agreement were adopted by a decision of the Council of Association of 20 December 1976, ( 4 ) then by Decision No 1/80 of 19 December 1980‘on the development of the Association’ (hereinafter ‘the Decision’), Article 6(1) of which is at the centre of the present case. That article, which appears in Section 1 (‘Questions relating to employment and the free movement of workers’) of Chapter II (‘Social provisions’), provides as follows:

6. 

The questions referred to the Court for a preliminary ruling have their origin in the following facts. Mr Kus, who was born in 1954, arrived in Germany in 1980, where he married a national of that State in 1981. On 27 April 1981 he obtained a residence permit on the ground of being ‘married to a German citizen’. That permit was extended until 17 August 1983. He has worked since 1 April 1982 under a ‘valid’ ( 5 ) work permit. On 17 August 1983 he sought an extension of his residence permit for two years, His divorce became absolute on 26 April 1984. On 6 August 1984 his application for an extension was refused by the Mayor of Wiesbaden on the ground that the original reason for his stay (marriage) had ceased to exist when the marriage was dissolved.

7. 

Mr Kus appealed against that decision to the Verwaltungsgericht Wiesbaden, which on 23 May 1985 provisionally suspended the effects of the decision. On 30 October 1987, by a decision on the substance of the case, that court annulled the Mayor's decision and ordered that Mr Kus's residence permit be extended.

8. 

The Landeshauptstadt Wiesbaden appealed to the Hessischer Verwaltuns gerichtshof, which, by order of 12 August 1991, held that the applicant was not entitled to a residence permit under national law. ( 6 ) Being uncertain as to whether Decision No 1/80 of the Association Council was applicable to the proceedings, the Hessischer Verwaltungsgerichtshof referred to the Court the three questions which are set out in the Report for the Hearing. ( 7 )

9. 

It is common ground that (1) the order of the Verwaltungsgericht of 23 May 1985 retroactively suspended the Mayor's decision of 6 August 1984 and thus provisionally revived Mr Kus's right of residence, and (2) on the basis of that right, Mr Kus was able to obtain a valid work permit and undertake paid employment. ( 8 )

10. 

Before answering the questions as to the substance, I shall examine whether the Court has Jurisdiction to interpret the Decision, a point disputed by the German Government.

11. 

As far back as the judgment in the Haegemann case, ( 9 ) the Court accepted that an agreement concluded by the Council under Articles 228 and 238 of the Treaty was, ‘in so far as concerns the Community, an act of one of the institutions of the Community within the meaning of subparagraph (b) of the first paragraph of Article 177’, that ‘the provisions of the Agreement, from the coming into force thereof, form an integral part of Community law’ and that, ‘within the framework of this law, the Court accordingly has jurisdiction to give preliminary rulings concerning the interpretation of this Agreement’. ( 10 )

12. 

In the judgment in the Sevince case, ( 11 ) the Court, asked to interpret Article 6 of the Decision, held, in accordance with settled case-law, that the provisions of an agreement concluded by the Council under Articles 228 and 238 of the EEC Treaty form an integral part of the Community legal system as from the entry into force of that agreement ( 12 ) and that, ‘since they are directly connected with the Agreement to which they give effect, the decisions of the Council of Association, in the same way as the Agreement itself, form an integral part, as from their entry into force, of the Community legal system ...’. ( 13 )

13. 

From this the Court inferred that, since it had jurisdiction to give preliminary rulings on the Agreement as an act adopted by a Community institution, it also had jurisdiction to give rulings on the interpretation of the decisions adopted by the authority established by the Agreement and entrusted with its implementation. ( 14 )

14. 

In submitting that the Court should find it has no jurisdiction, the German Government asks the Court to reverse that case-law. It argues, in the first place, that the Court cannot interpret the decisions of the Council of Association, which is not a Community institution but an authority of the Association. The Court has already refuted that argument in paragraph 10 of the Sevince judgment by reasoning which has lost none of its force.

15. 

Secondly, the Government relies on Article 2(2) of the Agreement of 12 September 1963 on the measures to be taken and the procedures to be followed for application of the Agreement establishing an Association between the EEC and Turkey, ( 15 ) which provides that ‘in cases where the decisions and recommendations of the Association Council come within a sphere which, by the terms of the Treaty establishing the Community, is not within the competence of the Community, the Member States shall take the measures necessary to apply them’. That, according to the Government, is the position regarding the Decision, which affects a sphere falling within the competence of the Member States.

16. 

Article 6 of that Decision, the only provision in issue here, concerns freedom of movement for workers, as evidenced by the title of Section 1, of which it forms part.

17. 

With regard to Article 12 of the Association Agreement and Article 36 of the Additional Protocol, which Article 6 of the Decision implements, the Court held in the Demirel judgment: ( 16 )

‘Since the agreement in question is an association agreement creating special, privileged links with a non-member country which must, at least to a certain extent, take part in the Community system, Article 238 must necessarily empower the Community to guarantee commitments towards non-member countries in all the fields covered by the Treaty. Since freedom of movement for workers is, by virtue of Article 48 et seq. of the EEC Treaty, one of the fields covered by that Treaty, it follows that commitments regarding freedom of movement fall within the powers conferred on the Community by Article 238’. ( 17 )

18. 

The competence of the Member States, in respect of freedom of movement for workers, to lay down the necessary implementing rules ( 18 ) does not have the effect of removing the Decision from the Community legal order. In the Demirel judgment, referring back to the Kupferberg judgment, ( 19 ) the Court stated that

‘in ensuring respect for commitments arising from an agreement concluded by the Community institutions the Member States fulfil, within the Community system, an obligation in relation to the Community, which has assumed responsibility for the due performance of the agreement’, ( 20 )

and from this concluded that it did have jurisdiction to interpret the provisions on freedom of movement for workers contained in the Association Agreement and the Protocol.

19. 

It follows, as I said in my Opinion in the Sevince case, ( 21 ) that the matter to which Article 6(1) of the Decision relates does not place it outside the Community legal order. Nor does it mean that the Court has no jurisdiction to interpret it. That, moreover, as I have pointed out, is the position which the Court adopted. ( 22 )

20. 

Finally, I shall not dwell on the submission based on the application of Article 25 of the Agreement. ( 23 ) As I observed in my Opinion in the Demirel case, ( 24 )

‘[Article 25] confers powers on the Council of Association only in cases of conflict between States, in accordance with a procedure expressly laid down for the resolution of disputes which could not be brought before this Court by the non-member country concerned’.

21. 

The Court therefore clearly does have jurisdiction. It is decisive that under the Association Agreement, the contracting parties, including the Community, empowered the Association Council to adopt binding decisions. ( 25 ) As P. Gilsdorf notes, it follows that ‘the Community provided for the binding effect of those decisions in the Agreement itself. From that point of view, it might be possible to describe those decisions as a category of agreements concluded in a simplified form’. ( 26 ) To an extent, the contracting parties delegated to the Association Council the implementation of Article 12 of the Agreement and Article 36 of the Protocol, ( 27 ) and the decisions of the Association Council give effect ‘in specific respects to the programmes envisaged in the Agreement ...’. ( 28 ) The Decision is linked to the objectives set out in Article 12 of the Association Agreement: it implements the principles laid down in that agreement.

22. 

Let us now turn to the first question.

23. 

Is the condition laid down in the third indent of Article 6(1) for free access to the employment market (the person concerned must have been duly registered as belonging to the labour force for at least four years) fulfilled when that period is attained only by the operation of a national rule which allows a Turkish national to reside in the host State pending the outcome of the procedure for granting a residence permit?

24. 

During that procedure, is that Turkish national duly registered as belonging to the labour force within the meaning of Article 6(1)? Is he in a ‘stable and secure situation as a member of the labour force’? ( 29 )

25. 

In the Sevince case the application submitted by the plaintiff in the main proceedings for an extension of his residence permit had been refused. The appeal brought against that decision had automatically given rise to the suspension of its effects, solely by virtue of the statute (Article 38 of the Vreemdelingenwet) and the person concerned had therefore been able to obtain authorization to work. The appeal was dismissed by the court almost six years later. In order to obtain a new residence permit, Mr Sevince relied on the years of employment while the proceedings were pending.

26. 

The Court held that

‘... although legal employment over a given period gives rise, at the end of that period, to recognition of a right of residence, it is inconceivable that a Turkish worker could contrive to fulfil that condition, and consequently be recognized as being vested with that right, merely because, having been refused a valid residence permit by the national authorities during that period and having exercised the rights of appeal provided for by national law against such refusal, he benefited from the suspensory effect deriving from his appeal and was therefore able to obtain authorization, on a provisional basis pending the outcome of the dispute, to reside and be employed in the Member State in question’. ( 30 )

27. 

The significant words here are: on a provisional basis.

28. 

The Netherlands statute, which automatically confers suspensory effect on an appeal, and the German statute, which leaves it to the court to decide whether the effects of a decision of refusal are to be suspended, are guided by the same principle: the need to avoid the irreversible execution of a contested decision which might be overturned by the courts — or, as I put it in my Opinion in the Sevince case, to ‘ensure that the situation of the person concerned is not excessively impaired before it has been defined judicially’. ( 31 )

29. 

This conservatory protection of the rights of a Turkish national cannot ‘simultaneously have the effect of creating rights which definitively compel the Member State, regardless of the result of the proceedings before the court, to keep the person concerned in its territory’. ( 32 )

30. 

Unlike the Commission, I see no difference, as to the effects, between the suspension of a decision of refusal by operation of law and retroactive suspension by the courts. In both cases the suspension is effective only for the period of the appeal and is therefore essentially provisional and, in both cases, it has the effect of allowing the appellant to remain and work on an essentially temporary basis.

31. 

As I see it, it would be illogical to regard as ‘duly registered as belonging to the labour force’ a Turkish national whose right of residence (1) is disputed by the authorities ( 33 ) and (2) may at any time be called in question again by the decision of the court. ( 34 )

32. 

The conclusion must be that from the day of the contested decision refusing to extend his residence permit a Turkish national no longer enjoys a ‘stable and secure situation as a member of the labour force’ entitling him to rely on the first indent of Article 6(1).

33. 

Since he is unable to rely on four years of lawful employment before that decision of refusal, a Turkish national placed in the situation of the applicant in the main proceedings cannot claim the benefit of that provision.

34. 

The first question must therefore be answered in the negative.

35. 

Let me now go on to the second question.

36. 

Mr Kus entered German territory in order to marry a German national. Their divorce meant that the initial ground of his right of residence ceased to exist.

37. 

Does a Turkish national in the situation of the applicant in the main proceedings fulfil the conditions laid down in the first indent of Article 6(1) for the renewal of his work permit where he has already been employed for two and a half years by the same employer when his application for an extension of his residence permit is refused by the administrative authorities?

38. 

Until that date the person concerned

39. 

Since he held a work permit and a residence permit, he therefore was ‘duly registered as belonging to the labour force of a Member State’ within the meaning of Article 6(1). He also satisfies the requirement as to length of employment laid down in the first indent of that provision.

40. 

Does the fact that the original ground for his right of residence has ceased to exist (the divorce meant that, under the legislation of the host State, he lost that right) prevent him from coming under the first indent of Article 6(1) and obtaining the renewal of his work permit and his residence permit?

41. 

On the day of the administrative decision refusing to extend his residence permit, a Turkish national, even though he keeps his job with the same employer, is no longer duly registered as belonging to the labour force, unless one accepts that he became the holder of a right of residence based not on national law but on the first indent of Article 6(1) from the time when he satisfied the conditions laid down in that provision: at least one year's employment while duly registered as belonging to the labour force.

42. 

In that case the Turkish national would derive his right of residence from Article 6(1) of the Decision of the Council of Association, and therefore from Community law: the fact that the original ground for his right of residence had ceased to exist under national law would have no effect on the existence of the same right based this time on Community law.

43. 

Having a right of residence on that basis, he would therefore be regarded as being in a regular situation as regards his employment and could seek the renewal of his work permit.

44. 

That, precisely, is what underlies the first part of the third question: does Article 6(1) — first or third indent — give rise to a right of residence? Does it mean that a Turkish national can obtain the renewal of his residence permit in addition to the renewal of his work permit? I shall therefore examine that part of the third question before giving my views on the answer called for by the second question.

45. 

As the Court pointed out in the Sevince judgment, Article 6 merely governs the circumstances of a Turkish worker as regards employment, and makes no reference to his circumstances concerning the right of residence. ( 35 )

46. 

It also follows from that judgment that the principle of effectiveness requires that the grant of a work permit after a specified period of legal employment in the Member State be accompanied by the existence of a right of residence for the person concerned. ( 36 )

47. 

The subject-matter of the rules laid down by the Association Council must be clearly defined: by application of the national law of the host Member State, Turkish nationals concerned by the decisions of the Association Council have obtained a right to enter the territory of that State (for example, as the spouse of a national of that State). ( 37 ) Only the regularity of their situation as regards the right of residence has enabled them to obtain a work permit. They are then duly registered as belonging to the labour force. In certain Member States, in particular the Federal Republic of Germany, there can be no work permit without a residence permit; if the latter comes to an end so, necessarily, does the former. ( 38 ) At this stage, only domestic law is applicable.

48. 

In my Opinion in the Sevince case, I wrote:

‘[The rules laid down by the Association Council] are intended ... not to govern the conditions for freedom of movement for workers between Turkey and the Member States, in particular for the benefit of Turkish nationals, but simply to consolidate the position of Turkish workers who are already duly integrated into the labour force of one of the Member States ...’. ( 39 )

49. 

The application of Article 6 of the Decision will make it possible to consolidate the legal status of Turkish nationals who have worked for at least one year (first indent), for three years (second indent) or for four years (third indent) and who already hold a work permit and have a right of residence, where such is required, under domestic law, since they are duly registered as belonging to the labour force. ( 40 )

50. 

Does the fact that they have held one or more jobs on a durable basis mean that they are entitled under the Decision, and therefore under Community law, to the renewal of their work permits (the first indent of Article 6) or to free access to employment (the third indent of Article 6), which must be accompanied by a right of residence making it possible for them to work?

51. 

Articles 6 to 8 of the Decision govern only access to employment, which in the majority of Member States presupposes a residence permit.

52. 

Since the right to work provided for in those articles can be effective only where it is accompanied by a right of residence, it must imply a right to the grant or extension of a residence permit. The Court held, in the Sevince judgment, that

‘... those two aspects [employment and the right of residence ( 41 )] of the personal situation of a Turkish worker are closely linked and that by granting to such a worker, after a specified period of legal employment in the Member State, access to any paid employment of his choice, the provisions in question necessarily imply — since otherwise the right granted by them to the Turkish workei would be deprived of any effect — the existence, at least at that time, of a right of residence for the person concerned’. ( 42 )

53. 

The Court held in the same judgment that Article 6(1) had direct effect in the Member States of the European Community. ( 43 )

54. 

It follows that Turkish nationals who fulfil the conditions laid down in Article 6(1) derive from that provision a right of residence based directly on Community law, because that right constitutes the condition either for renewal of the work permit or for free access to any paid employment.

55. 

That right of residence is very precisely circumscribed. Based on Community law, it has direct effect and is binding on the Member States. It follows that while the Member States may regulate both entry into their territory by a Turkish national and the conditions relating to his first employment — access and exercise —, they cannot go to the extent of depriving him, by measures associated with the right of residence, of the benefit of the rights provided for in Article 6(1).

56. 

The third question, thus defined, must therefore be answered in the affirmative.

57. 

I now return to the second question.

58. 

With regard to the right of residence in the Member States, the situation of Turkish nationals must be clearly distinguished from that of Community nationals, on the one hand, and that of the nationals of other non-member countries, on the other hand.

59. 

Pursuant to Article 48 of the Treaty, workers who are nationals of the Member States have a right of freedom of movement and complete equality of treatment with the nationals of the host State. It follows that they have a right of entry to and residence in the Member States that is conferred on them directly by Community law. The issue of a residence document has only a declaratory effect and the national authorities have no discretion in the matter.

60. 

The Court so held in particularly clear terms in its judgment in the Sagulo case: ( 44 )

‘... The issue of the special residence document provided for in Article 4 of Council Directive No 68/360 has only a declaratory effect and, for aliens to whom Article 48 of the Treaty or parallel provisions give rights, it cannot be assimilated to a residence permit such as is prescribed for aliens in general and in connection with the issue of which the national authorities have a discretion’. ( 45 )

61. 

In contrast, the rules regarding the right of nationals of non-member countries to reside in the Member States are within the latter's discretion. The expiry of the validity of a residence permit prescribed for nationals of non-member countries (a permit which creates rights) automatically extinguishes the right of residence of the alien concerned. Conversely, the expiry of a residence permit for a Community national means that ‘the holder simply no longer has written proof of his right of residence which continues to exist unchanged, although he does have a right to have this proof extended or newly made out’. ( 46 )

62. 

The Association Agreement between the EEC and Turkey created an intermediate situation.

63. 

With regard to freedom of movement for workers, Article 12 provides that the Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty for the purposes of progressively securing freedom of movement for workers.

64. 

Turkish workers cannot be assimilated to Community nationals: the conditions for entry on to the territory of a Member State are determined by domestic law alone, which is not affected by the Decision. On the other hand, Article 6(1) of the Decision makes the right to renewal of their work permits and to free access to all paid employment strictly subject to a number of conditions, in particular temporal conditions. Their right of residence is limited to the territory of the host State in which they work. Finally, the rules laid down by that article apply only during the transitional period.

65. 

But Turkish workers are no longer in the situation of nationals of other non-member countries. Article 8(1) of the Decision provides that they are to be given priority when employment is offered to workers who are not nationals of a Member State. The host Member State may not, except under the conditions laid down in the Decision, ( 47 ) refuse to renew the work permit of a Turkish worker who has worked for a specified time and the issue of a residence permit has the effect of declaring, not creating, a right. Once again, the worker's right of residence derives from Community law and not from a decision of the Member State concerned.

66. 

That Member State will be unable to refuse to extend the residence permit for a reason based on domestic law but not provided for in the Decision, and in particular, where the initial ground for entering its territory was marriage to a national of the State in question.

67. 

That answers the second question raised by the national court.

68. 

I will conclude by making two observations.

69. 

The system applicable to Turkish nationals in the matter of the right of residence has unexpected consequences. Thus Articles 6 and 10 of the Decision, which are inspired by Article 48 of the Treaty, do not provide for the limits on freedom of movement which are laid down in Article 48(4). The question has been asked whether Article 6 allows Turkish nationals to obtain posts in the public sector in the host Member State ... it being pointed out at the same time that it was hard to justify a more favourable position for nationals of a non-member State, even one associated to the Community, than for nationals of the other Member States. ( 48 )

70. 

To maintain that Decision No 1/80 confers on a Turkish national, apart from a right to work, a right of residence, which the Member State must certify in the form of a document of a purely declaratory nature

71. 

I therefore conclude that the Court should rule as follows: