61996C0036

Introduction

1 In the present reference for a preliminary ruling the German Bundesverwaltungsgericht (Federal Administrative Court) seeks to ascertain whether, under Decision No 1/80 of the EEC-Turkey Association Council, a Turkish worker may be considered to be in legal employment and duly registered as belonging to the labour force of a Member State where his work permit was issued with temporal restrictions and for the purpose of preparing for work with a subsidiary company of his employer in Turkey.

Relevant Community legislation

2 The Association Agreement between the European Economic Community and Turkey (1) is intended, according to Article 2(1), `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'.

Under Article 12 of the Agreement, the Contracting Parties agree `to be guided by Articles 48, 49 and 50 of the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers between them'.

3 Pursuant to Article 36 of an additional protocol to the Association Agreement, dated 23 November 1970, (2) the Association Council is to determine the detailed rules necessary for the progressive achievement of freedom of movement for workers between Member States of the Community and Turkey, in accordance with the principles set out in Article 12 of the Association Agreement.

4 Pursuant thereto, the Association Council adopted Decision No 1/80 of 19 September 1980, which entered into force on 1 July 1980 (hereinafter `Decision No 1/80'). (3) Article 6(1) of the Decision is worded as follows:

`1. ... 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.'

Facts of the main proceedings

5 Mr Faik Günaydin, a Turkish national, entered the Federal Republic of Germany in 1976, when he was aged 20. He first attended a number of courses in German and then began to study for a diploma in electrical engineering. He completed his training in 1986 as a civil engineer in that sector. In 1982 he married Hatice Günaydin, with whom he had two children, born in 1984 and 1988.

6 In November 1986 Mr Günaydin was employed by Gerätewerk Amberg, which belongs to Siemens AG (hereinafter `Siemens'). By letter of 16 October 1986 Siemens informed the authorities in Amberg responsible for foreigners that Gerätewerk Amberg operated closely with local subsidiaries of Siemens in, among other countries, Turkey, and that it was therefore envisaged that after a period of some five years Mr Günaydin would be given a supervisory or managerial post in one of those subsidiaries. He was not therefore intended to work on a long-term basis with Gerätewerk Amberg, but was to be posted to his country of origin. By letter of 20 January 1987, Siemens' head office asked the Ministry of the Interior for the State of Bavaria to issue a residence permit for at least three years to Mr Günaydin, on the understanding that he would be posted to Turkey on completion of a work-related information and familiarization programme. That information was confirmed in a further letter from Siemens' head office dated 21 January 1987.

7 On 12 January 1987, the town of Amberg granted Mr Günaydin a residence permit valid until 3 November 1987. The permit stated that it was to `expire upon termination of employment with Siemens in Amberg (for introduction to commercial and working methods only)'. Before receiving the residence permit Mr Günaydin signed a declaration accepting that the residence permit was being granted only for the above purpose and that, as the law then stood, he could not be granted an indefinite and unrestricted residence permit for Germany.

8 The residence permit was extended on three occasions, with endorsements couched in similar terms, being limited on the last occasion to 5 July 1990. At the same time temporary work permits, also limited to employment with Siemens at the Gerätewerk Amberg, were issued to Mr Günaydin. Before the last extension Mr Günaydin provided Siemens with a statement, on 9 August 1989, in which he declared that he wished to continue working at the Gerätewerk Amberg until 30 June 1990 or 30 September 1990, should his residence permit be extended. He proposed thereafter to return to Turkey with his family in order to take up a post with Siemens' subsidiary in that country. That declaration was forwarded to the authorities responsible for foreigners.

9 By letters of 15 February 1990 and 5 July 1990 Mr Günaydin applied to the authorities responsible for foreigners for a permanent residence permit, on the ground that because of the time spent working in Germany that country had by then become his real home. His application was supported by Siemens and the Chamber of Commerce and Industry in Regensburg. However, Mr Günaydin was obliged to leave Siemens on 30 June 1990 because his work permit had expired.

10 By decision of 11 September 1990, the town of Amberg rejected Mr Günaydin's application for a residence permit. Similarly, the Landratsamt (Regional Authority) Amberg-Sulzbach, by decision of 17 April 1991, rejected his application for a residence permit. Mr Günaydin lodged an unsuccessful administrative appeal against that decision with the regional administration of Oberpfalz.

On 3 December 1991 Mr Günaydin and his family appealed to the Verwaltungsgericht (Administrative Court), which upheld the administrative decisions on, inter alia, the ground that Mr Günaydin could not rely on Article 6(1) of Decision No 1/80 because he was not duly registered as belonging to the labour force in Germany. Mr Günaydin and his family appealed to the Bayerischer Verwaltungsgerichtshof (Higher Administrative Court of Bavaria), which upheld the lower decision. They then appealed on a point of law to the Bundesverwaltungsgericht.

Questions referred for a preliminary ruling

11 By order of 24 November 1995, the Bundesverwaltungsgericht stayed the proceedings and referred the following questions to the Court for a preliminary ruling:

`1. Is a Turkish worker duly registered as belonging to the labour force of a Member State within the meaning of Article 6(1) of Decision No 1/80 of the EEC-Turkey Association Council on the development of the Association ("Decision No 1/80") and is he legally employed there if he has been authorized to pursue paid employment with an employer in the Member State only temporarily and only for the purpose of preparing for work with a subsidiary company of his employer in Turkey?

2. If the answer to Question 1 is yes:

Can a claim under Article 6(1) of Decision No 1/80 be opposed as an abuse of law if the Turkish worker has expressly declared his intention of returning to Turkey after preparation for the work there and the competent authority has authorized him to reside in the country temporarily only in view of that declaration?'

The first question

12 The first question turns on whether a Turkish worker 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, and is legally employed there, in the case where he has obtained temporary authorization to pursue paid employment with an employer in that Member State for the purpose of undergoing training with a view to taking up a post with a Turkish subsidiary of his employer.

13 To my mind, that question actually contains two sub-questions. The first question concerns the interpretation of the concept of being duly registered as belonging to the labour force, referred to in Article 6(1) of Decision No 1/80, in relation to the recruitment of Turkish nationals to certain posts having an element of training. The second question hinges on whether, by placing temporal or other restrictions on the residence and work permits which they issue to Turkish workers, Member States may exclude such workers from the benefit of the rights which Article 6(1) confers on them.

14 Freistaat Bayern, supported by the German, French and Greek Governments and by the Commission, maintains that Article 6(1) of Decision No 1/80 must be interpreted as meaning that a Turkish worker who has obtained only temporary authorization to work for an employer in a Member State for the purpose of training for a post in a subsidiary of that employer in Turkey cannot be considered to be duly registered as belonging to the labour force of that Member State.

15 It should be pointed out that the Court has consistently held that Article 6(1) of Decision No 1/80 has direct effect. (4) Admittedly, that provision, on its wording, refers only to the right to take up employment, but it follows from the Court's consistent case-law that in connection with that right to take up employment there is a derived right of residence. (5)

On the other hand, Article 6(1) does not cover the right to take up employment and the right to reside in Member States in the case of Turkish workers who do not meet the temporal conditions laid down therein. Other than in the situations envisaged in Decision No 1/80, therefore, it is the legislation of the Member States which determines whether and, if so, under what conditions Turkish nationals are entitled to enter and reside in the territory of those States and to take up employment there.

16 Moreover, the Court held in Kus (6) in relation to Decision No 1/80 that:

`... according to its wording, Article 6(1) [of Decision No 1/80] applies to Turkish workers duly registered as belonging to the labour force of a Member State and ... under the first indent 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 ...'.

In order to be able to rely on Article 6(1) of Decision No 1/80, therefore, it is essential that the Turkish worker in question be duly registered as belonging to the labour force of a Member State and has been legally employed for the periods set out therein.

17 As to when a Turkish national may be considered to be `duly registered as belonging to the labour force', it is appropriate, in my view, to make a purely objective assessment of the nature of the activity, in order to determine whether the person exercising the activity concerned is in employment within the general meaning of the word, and thereby duly registered as belonging to the labour force in Germany, or, on the other hand, is undergoing some form of training.

18 In doing so, it is possible to identify certain extreme features characteristic of such activities. First, there is the group of simple training activities, which have no connection with employment or the labour force, for example university studies, studies in a commercial college or technical studies, where students exclusively pursue an activity of a purely theoretical and educational nature. Turkish nationals who have been issued with residence permits in order to study at university do not therefore form part of the labour force and cannot rely, on the basis of the right of residence which they are granted in a Member State, on Article 6 of Decision No 1/80.

19 On the other hand, there are Turkish nationals who have ordinary paid employment in a Member State under the general conditions of employment law and who receive normal wages. Such persons clearly belong to the labour force of the Member State concerned and a Turkish national who has been so employed for the requisite periods will thus be able to rely on the rights referred to in Article 6 of Decision No 1/80.

20 Between those two extremes it is possible to envisage a whole series of intermediate groups, where it may be difficult to determine whether the activity in question constitutes training or employment linked to the labour force. Such forms of employment may be regarded as being principally in the nature of training. For example, it is possible to imagine that the training for nurses provided by a particular training institution will include periods of practical training in hospitals, irrespective of whether a trainee receives remuneration for the work performed for the hospital.

21 Numerous forms of paid employment linked to the labour force may include an element of training, particularly in the case of employment requiring the development of intellectual qualities. For example, posts as deputy judges will be administered in such a way as to allow deputy judges - or the most gifted among them - to train and qualify for posts as established judges. In the course of a career, it is by completing a form of work or activity over a certain period that the person concerned qualifies for a certain different post. In that sense, many forms of work involve education or training even though there can be no doubt that the person concerned is in employment linked to the labour force.

22 The concept of being duly registered as belonging to the labour force of a Member State in Article 6(1) of Decision No 1/80 must therefore, in my view, be understood at the outset as also extending to work which includes elements of training of the type mentioned above. In order to render that provision effective, it is necessary in my view to assume that paid employment falls outside that concept only in the case of practical work performed in the context of a training course in the strict sense, for example a period of work experience in the course of formal training which also, and perhaps primarily, includes educational (theoretical) components outside the workplace of the person concerned.

23 I consider that the present case does not lend itself to a more thorough examination by the Court of the treatment which should be reserved for certain other intermediate forms which might be imagined, for example apprentice training, which is presumably organized along very different lines in the various Member States. According to the information in the present case, it is apparent that Mr Günaydin had been recruited under the general conditions of the labour market and not under a particular apprenticeship scheme, that he was not paid a low `training salary' for his work with Siemens, but received a normal salary, that is to say, the same salary as other civil engineers working for Siemens, that he was not in receipt of any training allowance from the German State and that it was intended that he should work for the undertaking for a certain number of years - although he was already a fully-trained civil engineer - before taking up a new post in a subsidiary. There is every indication, therefore, that the post in question involved perfectly ordinary work, and that in time Mr Günaydin, once he had acquired the necessary knowledge in terms of the culture of the undertaking, its channels of command, etc., would be able to take up a post involving, no doubt, additional responsibilities, in a planned subsidiary in Turkey.

24 I now turn to the question whether, by placing temporal or other restrictions on the residence and work permits which they issue to Turkish workers, Member States may exclude those workers from the benefit of the rights which Article 6(1) confers on them. In my Opinion in Case C-434/93 Bozkurt (7) I observed that:

`Article 6(1) of Decision No 1/80 lays down no independent conditions for the employment to be "legal".

...

By the expression "legal" employment, Article 6(1) of Decision No 1/80 of the Association Council must therefore be assumed to refer to the rules of the Member States as to the conditions under which Turkish nationals have a right of entry and of residence in their territory and of pursuing employment there. As the provision does not make the legality of the employment conditional upon the existence of a formal residence permit or the like, the most obvious interpretation is that employment is "legal" within the meaning of that provision if it is not illegal under the legislation of the Member State in question for a Turkish national to pursue it.'

25 In Sevince v Staatssecretaris van Justitie (8) (hereinafter `Sevince') the Court provided a number of guidelines on what the laws of the Member States may include within the concept of `legal' employment in Article 6(1) of Decision No 1/80:

`The legality of the employment within the meaning of those provisions, even assuming that it is not necessarily conditional upon possession of a properly issued residence permit, nevertheless presupposes a stable and secure situation as a member of the labour force. (9)

...

Consequently, the expression "legal employment" contained in ... the third indent of Article 6(1) of Decision No 1/80 cannot cover the situation of a Turkish worker who has been legally able to continue in employment only by reason of the suspensory effect deriving from his appeal pending a final decision by the national court, provided always, however, that the court dismisses his appeal.' (10)

26 One might contend that as long as a Turkish worker holds a temporary work permit his situation as a member of the labour force of the Member State must automatically be regarded as temporary, so that he cannot be in legal employment.

27 It follows from Sevince, however, that for the purpose of determining whether a Turkish worker may be regarded as legally employed in a Member State it is not decisive that he has been formally given a residence permit. On the other hand, it is decisive that, according to the national legislation of the Member State concerned, he was in fact entitled to work and reside in the Member State in question during the relevant period.

28 Just as it is irrelevant whether the right of residence derives from a formal work and residence permit, I consider it equally irrelevant that the validity of a residence or work permit issued was restricted in time. If the temporal validity of a residence permit were to be considered relevant, Member States would need only to issue residence permits valid for limited periods to be able to avoid completely the application of Article 6(1) of Decision No 1/80, so that Turkish nationals would not in fact benefit from the rights which that provision confers on them. In that regard, it should not be forgotten that it is apparently a widespread practice in Member States for nationals of non-member countries to receive only a limited residence permit during the first years in which they are entitled to work and reside in a Member State. The German Government stated at the hearing that there are no examples in Germany of an initial residence permit being issued to nationals of non-member countries, including Turkish nationals, which did not include a temporal restriction.

29 The same considerations apply where Member States limit residence and work permits other than by a temporal restriction, for example by stating that the permit entitles the holder to work only for a specific employer or to do work of a specifically defined nature. If Member States were able, simply by imposing restrictions of one form or other on residence and work permits, to limit the rights conferred on Turkish workers by Community law, they would be perfectly free to render illusory the rights of Turkish nationals under Decision No 1/80, which forms an integral part of Community law.

30 That does not mean that such restrictions, whether temporal or of any other kind, are irrelevant, since they produce the effects attributed to them by the national legal order in question in so far as nationals of non-member countries have not acquired rights under Community law. Thus, if a Turkish national's work permit is limited to work with a specific employer, and that post is terminated before the end of the first year, it follows from an a contrario reading of the first indent of Article 6(1) of Decision No 1/80 that the Turkish national has not acquired the right under Community law to continue in employment and that the question whether he may remain and work in the territory of the Member State concerned is a matter for the domestic legislation of that Member State alone.

31 As to whether a Turkish worker can be regarded as being in legal employment in a Member State, the determining factor to my mind lies solely in whether the person concerned was actually entitled to reside and work in the Member State during the period in issue, within the meaning of that Member State's laws on aliens. It is therefore irrelevant that the worker concerned had valid residence and work permits during those periods and that those permits were subject to a temporal or other restriction.

32 In my view, the answer to the first question must therefore be that Article 6(1) of Decision No 1/80 is to be interpreted as meaning that a Turkish national who is in paid employment under normal conditions and in receipt of normal pay with an employer in a Member State and who is not subject to any special rule of employment as an apprentice or under a similar scheme must be regarded as being employed as a duly registered member of the labour force of the Member State concerned, even though the initial reason for engaging him was to train him so that after working for the employer for a number of years he would be able to take up a post with a subsidiary of the employer in Turkey, and that Member States cannot, by imposing temporal or other restrictions on a Turkish national's residence and work permits, prevent the worker concerned from acquiring the rights which he derives from Article 6(1).

The second question

33 By its second question the national court asks whether a claim under Article 6(1) of Decision No 1/80 may be opposed as being an abuse of law.

34 Mr Günaydin has stated that the Siemens subsidiary in Turkey where he was to be employed following the period of training with Siemens in Germany had told him in January 1991 that owing to the situation then prevailing in Turkey it was unable to employ him for the time being. Mr Günaydin had therefore originally intended to return to Turkey, but circumstances had changed.

35 Freistaat Bayern, supported by the German and Greek Governments, takes the view that the present case involves an abuse of such a kind as to prevent Mr Günaydin from relying on Article 6(1) of Decision No 1/80.

36 The Commission considers that it cannot be taken as established that Mr Günaydin initially pretended that he intended to return to Turkey on completion of his period of employment with Siemens in order to induce the German authorities responsible for aliens to issue a residence and work permit to him.

37 It is not entirely clear, from reading the second question, what the national court means by `abuse of law' in connection with the rights under Article 6(1) of Decision No 1/80. None the less, to my mind the word `abuse' implies an element of deception, so that it is most reasonable to assume that the national court is in fact asking whether the rights which a Turkish worker derives from Article 6(1) of Decision No 1/80 may be affected by the fact that he obtained a residence and work permit through deception.

38 In my Opinion of 6 March 1997 in Case C-285/95 Suat Kol (11) I observed that:

`16. The right to work during the period before a Turkish worker can rely on the provisions in Decision No 1/80 is thus conditional on a right of residence already acquired under the law of the Member State in question. Whether and on what conditions a Turkish worker has a right of residence must be decided under national law. What is determinant in that connection is whether, under the Member State's substantive rules, the person in question is lawfully in the country. A formal residence and work permit are of no consequence.

...

18. The Court has ... held that periods of employment completed solely on the basis of a provisional right of residence valid until the outcome of legal proceedings cannot be regarded as periods of legal employment. In the present case the situation is different, since Suat Kol - albeit as a result of fraud - was, during the period at issue, in possession of a permanent residence permit, which only lapsed when there was a subsequent expulsion decision. Formally, Suat Kol's situation as a member of the German labour force was not therefore provisional. Since, however, the residence permit was obtained fraudulently, under German law it was open to challenge.'

In that Opinion I further considered that the situation had to be `assessed in the same way as in the Sevince and Kus cases, so that the period between issue of a residence permit on the basis of the false declaration of cohabitation on 2 May 1991 and the expulsion on 7 July 1994 cannot be regarded as being a period in which Suat Kol's situation as a member of the labour force was permanent and not solely provisional, since his formal right of residence was open to challenge. In the contrary case, a final legal decision refusing him a right of residence under German law would be rendered nugatory and enable him to acquire the rights provided for in Article 6(1) during a period in which he did not fulfil the conditions laid down therein. To allow Suat Kol to use fraud on the German immigration authorities to render lawful his employment after 2 May 1991 would be to reward culpable conduct, which would encourage, rather than discourage, others to give fraudulent declarations to the immigration authorities of the Member States.'

Finally, in point 21 of my Opinion in Suat Kol, I expressed the view that `the purpose of Article 6(1) of Decision No 1/80 must also lead to the above result. The purpose of the advantages in relation to legal employment set out in the provision is to ensure that Turkish workers who are already duly registered as belonging to the labour force in a Member State are further integrated in the Member State in question. That consideration of integration would have a contrary effect if a Turkish worker could, by fraudulent means, procure for himself a legal position which could only be limited under the conditions referred to in Article 14.'

For all those reasons, I proposed that the Court's answer to the first question should be that `Article 6(1) of Decision No 1/80 must be interpreted to the effect that the periods of employment completed by a Turkish worker in a Member State on the basis of a residence permit obtained by fraud cannot be regarded as "legal employment" ...'.

39 As to whether inaccurate or incomplete information provided in connection with the issue of a residence and work permit may have an effect on whether employment is `legal' within the meaning of Article 6(1) of Decision No 1/80, I consider that the crucial point is whether the person concerned fraudulently obtained the residence permit, namely by knowingly providing inaccurate information to, or deliberately concealing relevant matters from, the authorities concerned. In such circumstances the authorities of the Member States responsible for foreigners would probably, as a general rule, retroactively withdraw the residence and work permits issued to the person concerned, so that the Turkish worker would not be in legal employment and would consequently be unable to rely on the periods of residence and employment determining the rights set out in Article 6(1) of Decision No 1/80.

40 On the other hand, where at a particular time a Turkish national, acting in good faith, provides information about his personal situation and his intentions, but where the position subsequently changes, without any fault on the part of the person concerned, for example because of general social developments, that will not constitute deception but rather a failure of general conditions, and it strikes me as unreasonable that in such a case the Turkish national alone should be made to bear the risk of failure of those conditions. It is probable that in such a situation the authorities of the Member States responsible for foreigners will simply withdraw (or refuse to extend) the residence and work permits, with prospective effect.

41 In that regard, it should be observed that the express temporal and other conditions examined in connection with the answer to the first question are in reality only a subdivision of such cases in which there is a failure to satisfy conditions. The only difference is that in the cases mentioned in connection with the first question those conditions were made an express term. The views expressed above must apply a fortiori in the case of implied conditions imposed by Member States when they issue residence and work permits, since otherwise the Member States would again be able to render illusory the rights arising under Article 6(1) of Decision No 1/80.

42 Taking the statement made by Mr Günaydin as a starting point, he did intend, when he submitted his application for a residence and work permit and made the required declarations, to return to Turkey after some years' employment experience with Siemens, but since circumstances had changed owing to the fact that he could no longer be employed with Siemens' subsidiary in Turkey, he changed his mind and wished to remain in Germany. That does not seem to be a case of deception, therefore, but merely a case in which conditions could no longer be met. However, that is a question for the national court.

43 I therefore consider that the answer to the second question should be that Article 6(1) of Decision No 1/80 is to be interpreted as meaning that periods of employment completed by a Turkish worker in a Member State on the basis of a residence permit obtained by deception cannot be regarded as `legal' employment.

Conclusion

44 On that basis, I propose that the Court should answer the questions referred to it as follows:

Article 6(1) of Decision No 1/80 of the Association Council established by the Association Agreement between the European Economic Community and Turkey, signed on 12 September 1963 in Ankara and concluded on behalf of the Community by Decision 64/732/EEC of the Council of 23 December 1963, must be interpreted as meaning

that a Turkish national who is in paid employment under normal conditions and in receipt of normal pay with an employer in a Member State and who is not subject to any particular rule of employment as an apprentice or under a similar scheme must be regarded as being employed as a duly registered member of the labour force of the Member State concerned, even though the initial reason for engaging him was to train him so that after working for the employer for a number of years he would be able to take up a post with a subsidiary of the employer in Turkey,

that Member States cannot, by imposing temporal or other restrictions on a Turkish national's residence and work permits, prevent him from acquiring rights under Article 6(1), and

that periods of employment completed by a Turkish worker in a Member State on the basis of a residence permit obtained by deception cannot be regarded as `legal' employment.

(1) - Agreement creating an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 and concluded on behalf of the Community by Decision 64/732/EEC of the Council of 23 December 1963 (Collection of the Agreements concluded by the European Communities, Vol. 3, p. 541).

(2) - OJ 1973 C 113 of 24 December 1973.

(3) - The Decision has not been published.

(4) - See Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461.

(5) - See footnote 4.

(6) - Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781.

(7) - See Case C-434/93 Bozkurt v Staatssecretaris van Justitie [1995] ECR I-1475.

(8) - See footnote 4.

(9) - Paragraph 30.

(10) - Paragraph 32.

(11) - Case C-285/95 Suat Kol v Land Berlin [1997] ECR I-3069.