Avis juridique important

Judgment of the Court (Sixth Chamber) of 19 November 1998. - Haydar Akman v Oberkreisdirektor des Rheinisch-Bergischen-Kreises. - Reference for a preliminary ruling: Verwaltungsgericht Köln - Germany. - EEC-Turkey Association Agreement - Freedom of movement for workers - Article 7, second paragraph, of Decision No 1/80 of the Association Council - Right of a child of a Turkish worker to respond to any offer of employment in the host Member State in which he has completed vocational training - Situation of a child whose father, having been legally employed in the host Member State for more than three years, has returned to Turkey at the time when the child's training is completed. - Case C-210/97. European Court reports 1998 Page I-07519

Summary Parties Grounds Decision on costs Operative part

International agreements - EEC-Turkey Association Agreement - Association Council established by the EEC-Turkey Association Agreement - Decision concerning freedom of movement for workers - Access to employment for children of Turkish workers - Conditions - Legal employment or residence of one of the parents in the host Member State at the time of gaining access to the employment market - Not a condition

(Decision No 1/80 of the EEC-Turkey Association Council, Art. 7, second para.)

The second paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council must be interpreted to the effect that a Turkish national who is the child of a migrant Turkish worker, who has been authorised to enter a Member State for the purpose of pursuing a course of study and who, on completion of that training, applies for a residence permit in order to be able to take up an offer of employment made to him in the host Member State, is entitled to respond to any offer of employment in the host Member State after having completed a course of vocational training there, and consequently to be issued with a residence permit, when one of his parents has in the past been legally employed in that State for at least three years.

However, it is not required that the parent in question should still work or be resident in the Member State in question at the time when his child wishes to gain access to the employment market there.

In Case C-210/97,

REFERENCE to the Court under Article 177 of the EC Treaty by the Verwaltungsgericht Köln (Germany) for a preliminary ruling in the proceedings pending before that court between

Haydar Akman

and

Oberkreisdirektor des Rheinisch-Bergischen-Kreises,

joined party: Vertreter des öffentlichen Interesses beim Verwaltungsgericht Köln,

on the interpretation of the second paragraph of Article 7 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council established by the Association Agreement between the European Economic Community and Turkey,

THE COURT

(Sixth Chamber),

composed of: P.J.G. Kapteyn, President of the Chamber, G.F. Mancini, H. Ragnemalm, R. Schintgen (Rapporteur) and K.M. Ioannou, Judges,

Advocate General: P. Léger,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Mr Akman, by R. Gutmann, Rechtsanwalt, Stuttgart,

- the German Government, by E. Röder, Ministerialrat at the Federal Ministry of the Economy, and C.-D. Quassowski, Regierungsdirektor at the same Ministry, acting as Agents,

- the Greek Government, by A. Samoni-Rantou, Special Assistant Legal Adviser in the Community Legal Affairs Department of the Ministry of Foreign Affairs, and L. Pnevmatikou, specialist technical adviser in that department, acting as Agents, and

- the Commission of the European Communities, by P.J. Kuijper and P. Hillenkamp, Legal Advisers, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Akman, represented by R. Gutmann; of the German Government, represented by C.-D. Quassowski; of the Austrian Government, represented by G. Hesse, Magister in the Federal Ministry of Foreign Affairs, acting as Agent; and of the Commission, represented by P. Hillenkamp, at the hearing on 14 May 1998,

after hearing the Opinion of the Advocate General at the sitting on 9 July 1998,

gives the following

Judgment

1 By order of 6 May 1997, received at the Court on 2 June 1997, the Verwaltungsgericht Köln (Administrative Court, Cologne) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of the second paragraph of Article 7 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association (hereinafter `Decision No 1/80'). The Association Council was established by the Agreement creating an Association between the European Economic Community and Turkey, signed on 12 September 1963 in Ankara by the Republic of Turkey by the Member States of the EEC and by 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 That question arose in proceedings brought by Mr Akman, a Turkish national, against the Oberkreisdirektor des Rheinisch-Bergischen-Kreises (Chief Administrative Officer of the Rheinisch-Bergischer-Kreis administrative district), concerning the refusal to grant him a residence permit of indefinite duration in Germany.

3 It appears from the papers in the main proceedings that Mr Akman was given leave to enter Germany in 1979 and there obtained a residence permit of limited duration for the purpose of training as an engineer.

4 Initially, he resided at Gross Gerau with his father, who was legally employed in Germany from 21 May 1971 to 31 December 1985. On 1 February 1986, his contract of employment in Germany having come to an end, Mr Akman's father returned to Turkey.

5 In 1981, Mr Akman moved to Remscheid, still in Germany, as Gross Gerau was too far from the establishment at which he was following his course of training.

6 His residence permit was renewed on a number of occasions in order to enable him to continue his training in Germany.

7 On 16 January 1991 Mr Akman was granted a residence permit unfettered by any restrictions as to duration or otherwise.

8 He was then employed part-time in various capacities by two employers successively, but it is common ground that he does not meet the requirements for entitlement to the rights provided for in Article 6(1) of Decision No 1/80.

9 That provision, which forms part of Chapter II (`Social Provisions'), Section 1 (`Questions relating to employment and the free movement of workers'), provides 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.'

10 On 6 April 1993, Mr Akman successfully completed his engineering course in Germany.

11 On 24 June 1993, he applied for a residence permit of unlimited duration.

12 However, by decision of 25 August 1993, the German authorities granted him only a limited residence permit, valid until 25 August 1994, for the purpose of completing a further course of study.

13 Mr Akman appealed against that decision to the Verwaltungsgericht Köln, relying on the second paragraph of Article 7 of Decision No 1/80.

14 Article 7, which also forms part of Chapter II, Section 1, 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:

- shall be entitled - subject to the priority to be given to workers of Member States of the Community - to respond to any offer of employment after they have been legally resident for at least three years in that Member State;

- shall enjoy free access to any paid employment of their choice provided they have been legally resident there for at least five years.

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'.

15 In Mr Akman's view, the second paragraph of that article entitles him, in the Member State in which he has completed his training and in which his father was legally employed for more than three years, to respond to offers of employment made to him and to claim a residence permit for the purpose of actually taking up employment.

16 The defendant authority, however, argues that the conditions laid down by that provision are not met in Mr Akman's case because his father, whilst having been legally employed in the Member State concerned for over 14 years, was no longer working there at the time when his son wished to gain access to the employment market.

17 The Verwaltungsgericht found that Mr Akman had no entitlement to be issued with an unlimited residence permit under German law. It wondered, however, whether he might not be in a more favourable position under the second paragraph of Article 7 of Decision No 1/80.

18 It raised, in that context, the question whether that provision implies that, at the time when the child has completed vocational training and wishes to respond to an offer of employment, the parent employed as a worker must still be present - and indeed perhaps in salaried employment - in the host Member State, or whether on the contrary it is sufficient that he should have been legally employed there, at some earlier stage, for at least three years. In the Verwaltungsgericht's view, the wording of the provision (`has been ... employed') tends to favour the latter interpretation.

19 Considering, however, that an interpretation of that provision of Decision No 1/80 was necessary in order to settle the dispute before it, the Verwaltungsgericht Köln stayed proceedings and requested a preliminary ruling by the Court on the following question:

`For a child of a Turkish worker to have the right to extension of his residence permit, which, according to the judgment of the Court of Justice in Case C-355/93 Eroglu v Land Baden-Württemberg, arises from the second paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council on the development of the Association, must the employed parent still be resident in Germany, or even still be in an employment relationship, at the time when the child has completed his course of vocational training and wishes to take up an offer of employment, or is that provision sufficiently complied with if the Turkish parent was legally employed at an earlier time for at least three years?'

22 The question raised by the Verwaltungsgericht concerns the situation of a Turkish national who, as the child of a migrant Turkish worker having himself been legally in salaried employment in a Member State for some 14 years, has been authorised to enter that State for the purpose of pursuing a course of study and who, on completion of that training, applies for a residence permit in accordance with the second paragraph of Article 7 of Decision No 1/80 in order to be able to take up an offer of employment made to him in the host Member State. The national court has noted that the individual concerned, although he has himself been legally employed for a certain period in the Member State in question, cannot claim the rights conferred by Article 6 of the same decision on a Turkish worker who is already part of the labour force in a Member State, because he does not meet the conditions laid down in that provision.

26 The German and Greek Governments have raised the preliminary objection that a Turkish national in the position of Mr Akman does not have the status of a child of a Turkish worker for the purposes of the second paragraph of Article 7 of Decision No 1/80 because, in substance, his father had definitively ceased to be part of the labour force of the host Member State at the time when his son wished to claim rights as the child of a Turkish worker.

27 In that regard, it need merely be pointed out that it is not disputed that Mr Akman's father was legally in salaried employment in the host Member State for over 14 years, and he must therefore be regarded as a worker within the meaning of the provision in question. The argument put forward by the German and Greek Governments thus cannot be accepted.

28 Turning next to the two conditions referred to in paragraph 25 above, it must be noted that in a case such as that of Mr Akman the first of those conditions is undoubtedly met, since he has completed a course of study in engineering in the host Member State.

29 With regard to the second condition, it must be determined whether the right of access to the employment market and the concomitant right of residence under the second paragraph of Article 7 of Decision No 1/80 are dependent on the presence - and indeed perhaps the employment - of the parent in the host Member State at the time when, on completion of a course of vocational training, the child wishes to respond to an offer of employment, or whether, on the contrary, it is sufficient that the parent has in the past been legally in salaried employment in that Member State for at least three years, without its being necessary for the parent still to be there when the child wishes to gain access to the employment market there.

30 The first point to be noted here is that, as the national court has itself observed, the verb used in the condition in question is in a past tense in most of the language versions in which Decision No 1/80 was drafted (`beschäftigt war' in German, `ait ... exercé' in French, `abbia ... esercitato' in Italian and `heeft gewerkt' in Dutch), whereas the first paragraph of Article 7 uses a present tense in those languages (`ihren ... Wohnsitz haben', `résident', `risiedono', `wonen'). That use of different tenses thus suggests that the relevant requirement under the second paragraph of Article 7 must have been fulfilled at some earlier stage than that at which the child has completed a course of vocational training.

31 However, some doubt is still raised by the preposition used in certain language versions; whilst the word `gedurende' in Dutch does not necessarily suggest a continuing condition, terms such as `depuis' in French and `seit' in German could on the contrary be interpreted as requiring the parent's employment, having commenced in the past, to be still continuing at the time when the child meets the further condition relating to the completion of a course of vocational training.

32 Since an unequivocal answer to the question raised cannot be gleaned by interpreting the letter of the text in question, it is necessary to view the second paragraph of Article 7 in its context and to interpret it in terms of its spirit and purpose.

33 Here, it must be borne in mind that, as already stated in paragraph 21 above, the second paragraph of Article 7 of Decision No 1/80 specifically regulates the right of children of a Turkish worker to gain access to the employment market.

36 Thus, the rights of family members in matters of employment depend on the period of residence in the host Member State and, initially, workers of Member States of the Community enjoy preferential access to the employment market. No such condition is imposed, however, on children by the second paragraph of Article 7. That latter provision even expressly provides that the rights which it confers on children of workers are not to depend on the length of time they have been resident in the Member State concerned. It is further clear from the first phrase of Article 6(1) of Decision No 1/80 that Article 7 grants family members - and thus, in particular, children - `free access to employment' in the Turkish worker's host Member State.

37 Nor, furthermore, does the second paragraph of Article 7 require - unlike the first paragraph - that the children should have been authorised to join the parent in the host Member State (see also, to the same effect, Eroglu, cited above, paragraph 22).

39 In those circumstances, the provision must not be interpreted strictly and cannot, failing any clear indication to that effect, be construed as requiring the Turkish migrant worker still to be employed in the host Member State at the time when his child wishes to gain access to the employment market there.

40 As the Advocate General has observed at point 56 of his Opinion, that finding is borne out by Article 9 of Decision No 1/80, which provides: `Turkish children residing legally in a Member State of the Community with their parents who are or have been legally employed in that Member State, shall be admitted to courses of general education, apprenticeship and vocational training under the same educational entry qualifications as the children of nationals of that Member State. They may in that Member State be eligible to benefit from the advantages provided for under the national legislation in this area.'

42 A fortiori, the requirement of present employment on the part of the parent cannot be imposed on completion of the child's vocational training without seriously undermining the coherence of the system established by Chapter II, Section 1, of Decision No 1/80.

43 It follows, moreover, from what is stated in paragraph 37 above that, unlike the first paragraph (see Kadiman, cited above, in particular at paragraph 36), the second paragraph of Article 7 is not designed to create conditions conducive to family unity in the host Member State.

45 As the Commission has cogently argued, the child of a Turkish migrant worker legally employed for at least three years in a Member State, who is himself legally resident in that Member State, has completed training there and is then offered an opportunity to work there, is no longer at that stage to be regarded as depending on the presence of one of his parents since, on gaining access to the employment market, he is no longer materially dependent on them but is able to provide for his own needs.

46 Since the second paragraph of Article 7 is in no way intended to provide the conditions for family unity, it would be unreasonable to require, in a situation such as that of the case in the main proceedings, that the Turkish migrant worker should continue to reside in the host Member State even after his employment relationship there has ceased, the consequence of his not doing so being to jeopardise the right to employment of his child who has completed training and who, by responding to an offer of employment, has an opportunity to become independent.

47 Having regard to the spirit and purpose of the provision in question and to the context of which it forms part, the second condition laid down in the second paragraph of Article 7 of Decision No 1/80 can thus only be construed as requiring merely that the parent should have been legally in salaried employment for at least three years in the host Member State at some stage prior to the date on which his child completes a course of vocational training there.

a Turkish national such as the plaintiff in the main proceedings is entitled to respond to any offer of employment in the host Member State after having completed a course of vocational training there, and consequently to be issued with a residence permit, when one of his parents has in the past been legally employed in that State for at least three years;

however, it is not required that the parent in question should still work or be resident in the Member State in question at the time when his child wishes to gain access to the employment market there.

Costs

52 The costs incurred by the German, Greek and Austrian Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

(Sixth Chamber),

in answer to the question referred to it by the Verwaltungsgericht Köln by order of 6 May 1997, hereby rules:

The second paragraph of Article 7 of Decision No 1/80 of 19 September 1980, on the development of the Association, adopted by the Association Council established by the Agreement creating an Association between the European Economic Community and Turkey must be interpreted as follows:

a Turkish national such as the plaintiff in the main proceedings is entitled to respond to any offer of employment in the host Member State after having completed a course of vocational training there, and consequently to be issued with a residence permit, when one of his parents has in the past been legally employed in that State for at least three years;

however, it is not required that the parent in question should still work or be resident in the Member State in question at the time when his child wishes to gain access to the employment market there.