Avis juridique important

Judgment of the Court (Sixth Chamber) of 5 October 1994. - Hayriye Eroglu v Land Baden-Württemberg. - Reference for a preliminary ruling: Verwaltungsgericht Karlsruhe - Germany. - EEC-Turkey Association Agreement - Association Council decision - Freedom of movement for workers - Right of residence. - Case C-355/93. European Court reports 1994 Page I-05113

Summary Parties Grounds Decision on costs Operative part

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1. International agreements ° EEC-Turkey Association Agreement ° Freedom of movement for persons ° Workers ° Turkish nationals in their first employment in one of the Member States ° Right, after one year' s legal employment, to the renewal of a permit to work for the same employer ° Scope

(EEC-Turkey Association Agreement; Decision No 1/80 of the EEC-Turkey Association Council)

2. International agreements ° EEC-Turkey Association Agreement ° Association Council established by the EEC-Turkey Association Agreement ° Decision concerning freedom of movement for workers ° Direct effect ° Child of a Turkish worker satisfying the conditions for responding to any offer of employment in the host Member State ° Right a corollary of the extension of a residence permit

(EEC-Turkey Association Agreement; Decision No 1/80 of the EEC-Turkey Association Council)

1. The first indent of Article 6(1) of Decision No 1/80 of the EEC-Turkey Association Council is to be construed as not giving the right to the renewal of his permit to work for his first employer to a Turkish national who is a university graduate and who worked for more than one year for his first employer and for some ten months for another employer, having been issued with a two-year conditional residence authorization and corresponding work permits in order to allow him to deepen his knowledge by pursuing an occupational activity or specialized practical training.

The aim of that provision is to ensure solely continuity of employment with the same employer and is, accordingly, applicable only where a Turkish worker requests an extension of his work permit in order to continue working for the same employer after the initial period of one year' s legal employment. Furthermore, extending the application of that provision to a Turkish worker who, after one year' s legal employment, changed employers and is seeking an extension of his work permit in order to work for the first employer again would allow that worker to change employers under that provision before the expiry of the three years prescribed in the second indent and would also deprive workers of the Member States of the priority conferred on them pursuant to that indent when a Turkish worker changes employers.

2. A Turkish national who satisfies the conditions set out in the second paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council and may therefore respond to any offer of employment in the Member State concerned may, by the same token, also rely on that provision to obtain the extension of his residence permit.

First, Article 7 clearly, precisely and unconditionally, hence with direct effect, sets out the rights of those children of Turkish workers who have completed a course of vocational training in the host country to 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. Secondly, just as the right of access to any paid employment is inconceivable without the right of residence, so the right to respond to any offer of employment necessarily implies the recognition of a right of residence for the person concerned.

In Case C-355/93,

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

Hayriye Eroglu

and

Land Baden-Wuerttemberg,

on the interpretation of Articles 6 and 7 of Decision established by the Association Agreement between the European Economic Community and Turkey, of 19 September 1980, on the development of the Association,

THE COURT (Sixth Chamber),

composed of: G.F. Mancini, President of the Chamber, C.N. Kakouris, F.A. Schockweiler (Rapporteur), P.J.G. Kapteyn and J.L. Murray, Judges,

Advocate General: M. Darmon,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° Mrs Hayriye Eroglu, by H. Lichtenberg, Professor at the University of Bremen,

° the German Government, by E. Roeder, Ministerialrat in the Federal Ministry of Economic Affairs, acting as Agent,

° the Commission of the European Communities, by J. Pipkorn, Legal Adviser, and H. Kreppel, a national civil servant seconded to the Commission, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mrs Hayriye Eroglu, the German Government and the Commission at the hearing on 5 May 1994,

after hearing the Opinion of the Advocate General at the sitting on 12 July 1994,

gives the following

Judgment

1 By order of 26 May 1993, received at the Court Registry on 14 July 1993, the Verwaltungsgericht (Administrative Court) Karlsruhe (Germany) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Articles 6 and 7 of Decision No 1/80 of the Association Council established by the Association Agreement between the European Economic Community and Turkey, of 19 September 1980, on the development of the Association ("Decision No 1/80").

2 Those questions were raised in proceedings between Mrs Hayriye Eroglu, a Turkish national, and the Land Baden-Wuerttemberg, concerning the refusal to extend the residence permit allowing her to stay in the Federal Republic of Germany.

3 It is apparent from the order for reference that in April 1980 Mrs Eroglu, who was born in Turkey on 12 May 1960, entered the Federal Republic of Germany where her father had been living and working quite lawfully without interruption since 4 May 1976, in order to take a business administration course at the University of Hamburg. She completed those studies in 1987 and obtained a diploma in further business studies, then began to study for a doctorate. During her studies, and until October 1989, she was granted several residence permits, all limited to one year and marked "valid only for the purposes of study ...".

4 In October 1989, Mrs Eroglu moved to Hardheim. At her request, the Landratsamt Neckar-Odenwald-Kreis (the Neckar-Odenwald Rural District Central Administrative Office) issued her with residence permits on 15 January 1990 and 27 June 1990 valid initially until 1 March 1991, and containing the proviso: "Gainful employment not permitted; valid only for the 'hotel project' activity with company B. in Hardheim". On 7 February 1991 she received a conditional residence authorization valid until 1 March 1992, allowing her to undertake practical training with company B. At the same time, she was told that it would not be possible to renew the residence authorization beyond 1 March 1992. In a decision of 9 April 1991, the conditions attached to the authorization were changed so to permit Mrs Eroglu thereafter to pursue "activity as a trainee (marketing assistant) at company F. GmbH in Tauberbischofsheim".

5 For all those activities Mrs Eroglu was issued with corresponding work permits. Those which were valid from 6 February 1990 to 14 January 1991 and from 25 April 1991 to 1 March 1992 respectively authorized her in general and without further restriction to carry on certain occupational activities, the one as commercial management assistant and the other as marketing assistant, in the employment of a certain company. The permit applying from 15 January 1991 to 14 April 1991, on the other hand, was limited to carrying on "occupational activity as a trainee". As a matter of fact, Mrs Eroglu was employed from 1 March 1990 to 15 April 1991 by company B., then from 15 April 1991 to 18 May 1992 by company F. Both employers paid her a monthly gross salary of more than DM 3 000.

6 On 24 February 1992 Mrs Eroglu applied to the Landratsamt Neckar-Odenwald-Kreis for an extension of her residence permit to allow her to continue her activity with her last employer, company F. That application and her subsequent complaint to the Regierungspraesidium Karlsruhe (Chief Executive' s Office of Karlsruhe District) were rejected, whereupon Mrs Eroglu brought proceedings before the Verwaltungsgericht Karlsruhe. In that court Mrs Eroglu, who had in the meantime again been offered employment with her first employer, company B., claimed that she had a right of residence by virtue of the first indent of Article 6(1) and the second paragraph of Article 7 of Decision No 1/80, which provide as follows:

"Article 6

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.

(...)

Article 7

The members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State, who have been authorized 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 that 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."

7 The Verwaltungsgericht Karlsruhe found that the refusal to renew the residence permit was in accordance with German law but was uncertain whether a solution more favourable to Mrs Eroglu might not follow from the abovementioned provisions of Decision No 1/80, with particular regard to the Court' s judgments in Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461 and Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781.

8 Consequently, it decided to stay the proceedings until the Court of Justice had given a ruling on the following questions:

"1. Does a Turkish national satisfy the conditions of the first indent of Article 6(1) of Decision No 1/80 of the Association Council of the Association between the European Economic Community and Turkey on the development of the Association if under national law she was granted, as a graduate of a German university, a conditional residence authorization for two years and corresponding work permits for the purpose of deepening her knowledge by pursuing an occupational activity or a period of specialized practical training and if she initially worked for more than a year for one employer (gross monthly earnings: approximately DM 3 000) and immediately afterwards worked, with the authorities' permission, for some ten months for another employer, after which she was offered work by her first employer?

2. May a Turkish national who, as a graduate of a German university, satisfies the conditions set out in the second paragraph of Article 7 of the aforementioned decision and who may therefore 'respond to any offer of employment' , demand the extension of her residence permit on the basis thereof, or does the second paragraph of Article 7 of the decision govern exclusively the position under employment law of children of Turkish workers who have been legally employed in the host Member State for at least three years?"

Question 1

9 In its first question, the national court asks whether the first indent of Article 6(1) of Decision No 1/80 is to be construed as giving the right to the renewal of his permit to work for his first employer to a Turkish national who is a university graduate and who worked for more than one year for his first employer and for some ten months for another employer, having been issued with a two-year conditional residence authorization and corresponding work permits in order to allow him to deepen his knowledge by pursuing an occupational activity or specialized practical training.

13 The aim of the first indent of Article 6(1) of Decision No 1/80 is to ensure solely continuity of employment with the same employer and is, accordingly, applicable only where a Turkish worker requests an extension of his work permit in order to continue working for the same employer after the initial period of one year' s legal employment.

14 Extending the application of that provision to a Turkish worker who, after one year' s legal employment, changed employers and is seeking an extension of his work permit in order to work for the first employer again would allow that worker to change employers under that provision before the expiry of the three years prescribed in the second indent and would also deprive workers of the Member States of the priority conferred on them pursuant to that indent when a Turkish worker changes employers.

15 It is sufficiently clear from the foregoing that the answer to the first question must be that the first indent of Article 6(1) of Decision No 1/80 is to be construed as not giving the right to the renewal of his permit to work for his first employer to a Turkish national who is a university graduate and who worked for more than one year for his first employer and for some ten months for another employer, having been issued with a two-year conditional residence authorization and corresponding work permits in order to allow him to deepen his knowledge by pursuing an occupational activity or specialized practical training.

Question 2

16 In its second question, the national court seeks to ascertain whether a Turkish national who satisfies the conditions set out in the second paragraph of Article 7 of Decision 1/80 and may therefore respond to any offer of employment in the Member State concerned may, by the same token, also rely on that provision to obtain the extension of his residence permit.

23 In view of the foregoing, the answer to the second question must be that a Turkish national who satisfies the conditions set out in the second paragraph of Article 7 of Decision No 1/80 and may therefore respond to any offer of employment in the Member State concerned may, by the same token, also rely on that provision to obtain the extension of his residence permit.

Costs

24 The costs incurred by the German Government and the Commission of the European Communities, 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 questions referred to it by the Verwaltungsgericht Karlsruhe, by order of 26 May 1993, hereby rules:

1. The first indent of Article 6(1) of Decision No 1/80 of the Association Council established by the Association Agreement between the European Economic Community and Turkey, of 19 September 1980, on the development of the Association is to be construed as not giving the right to the renewal of his permit to work for his first employer to a Turkish national who is a university graduate and who worked for more than one year for his first employer and for some ten months for another employer, having been issued with a two-year conditional residence authorization and corresponding work permits in order to allow him to deepen his knowledge by pursuing an occupational activity or specialized practical training.

2. A Turkish national who satisfies the conditions set out in the second paragraph of Article 7 of Decision No 1/80 and may therefore respond to any offer of employment in the Member State concerned may, by the same token, rely on that provision to obtain the extension of his residence permit.