Kazim Kus v Landeshauptstadt Wiesbaden. (International agreements) [1992] EUECJ C-237/91 (16 December 1992)

Judgment 1 By order of 12 August 1991 received at the Court on 18 September 1991, the Hessischer Verwaltungsgerischtshof (Higher Administrative Court, Hesse) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Article 6 of Decision No 1/80 of the Council of Association established by the Association Agreement between the European Economic Community and Turkey of 19 September 1980 on the development of the Association (hereinafter "Decision No 1/80"). 2 Those questions were raised in proceedings between Kazim Kus, a Turkish national, and the Landeshauptstadt Wiesbaden, represented by its Mayor, concerning the refusal to renew a permit to reside in Germany. 3 It is apparent from the order for reference that Mr Kus entered the territory of the Federal Republic of Germany on 24 August 1980 in order to marry a German national and did so on 16 April 1981. It is also apparent from the order for reference that since 1 April 1982 Mr Kus has been in continuous employment under a valid work permit. He worked first of all for some seven years for the same undertaking, before twice changing his employer. 4 By a decision of 6 August 1984 the Mayor of Landeshauptstadt Wiesbaden refused to renew the residence permit which had been granted to Mr Kus as from 27 April 1981 as the spouse of a German citizen and had expired on 17 August 1983 on the ground that the original reason for Mr Kus' s stay had ceased to exist, since Mr and Mrs Kus had been divorced by a judgment of 18 October 1983 which had become absolute on 26 April 1984. 5 Following an unsuccessful complaint against the Mayor' s decision of 6 August 1984, Mr Kus appealed to the Verwaltungsgericht (Administrative Court) Wiesbaden. By order of 23 May 1985 that court provisionally and retrospectively suspended the contested decision and, by judgment of 30 October 1987, set aside that decision and ordered the defendant to renew Mr Kus' s residence permit. 6 The defendant appealed to the Hessischer Verwaltungsgerichtshof, which found that Mr Kus had no right to be granted a residence permit on the basis of German law but wondered whether a solution more advantageous to Mr Kus might arise from the application of Article 6 of Decision No 1/80, which 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 the 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. ... 3. The procedures for applying paragraphs 1 and 2 shall be those established under national rules." 7 Accordingly, the Hessischer Verwaltungsgerichtshof decided to stay the proceedings until the Court of Justice had given a ruling on the following questions: "1. Does a Turkish worker meet the conditions of the third indent of Article 6(1) of Decision No 1/80 of the EEC-Turkey Association Council on the development of the Association if under national law his residence is deemed to be authorized pending completion of the procedure for granting a residence permit and if on the basis of that right of residence and a corresponding work permit he has been employed for over four years? 2. Do the provisions of the first indent of Article 6(1) of the above-mentioned decision apply if a Turkish national, who entered the Federal Republic of Germany in order to marry a German national and whose marriage was terminated by divorce after three years, applies after his divorce for a residence permit for the purpose of engaging in employment and if at the time when that application is refused he has already been employed for two and a half years by the same employer under a valid work permit? 3. Does a Turkish worker in the circumstances described in Questions 1 or 2 above have a right, directly on the basis of the first or third indent of Article 6(1) of the abovementioned decision, to the renewal not only of his residence permit but also of his work permit, or do the rules governing the effects on rights of residence of the decisions of the EEC-Turkey Association Council concerning rights of employment fall within the implementing provisions which under Article 6(3) of that decision are to be adopted by the Member States on their own responsibility, without being bound by Community law?" 8 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. 9 Since the German Government expressly asked to Court to reconsider its jurisdiction to give rulings under Article 177 of the Treaty on the interpretation of decisions adopted by a body established by an Association Agreement to ensure the implementation of that agreement, the Court wishes to point out that nothing has emerged from the observations submitted in this case which might cause it to depart from what it held in that respect in its judgment in (Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461 ). 10 It should be noted at the outset that all three questions concern the situation of a Turkish worker who is already authorized to reside in the territory of a Member State. First question 11 By its first question the national court seeks to ascertain whether the third indent of Article 6(1) of Decision No 1/80 must be interpreted as meaning that a Turkish worker fulfils the requirement of at least four years of legal employment laid down in that provision where he has been so employed under a right of residence conferred on him solely through the operation of national legislation which permits him to reside in the host State pending completion of the procedure for the grant of a residence permit. 12 On that point, it follows from the judgment in Sevince, cited above, that the legality of the employment within the meaning of the third indent of Article 6(1) of Decision No 1/80 presupposes a stable and secure situation as a member of the labour force (paragraph 30 of the judgment) and that a Turkish worker was not in that situation during a period in which a decision refusing him the right of residence was suspended in his favour as a consequence of the judicial proceedings brought by him against that decision and in which he obtained authorization, on a provisional basis pending the outcome of those proceedings, to reside and be employed in the Member State in question (paragraph 31). 13 The same must apply to a case such as that in the main proceedings where suspension is not an automatic consequence, by operation of law, of judicial proceedings but is ordered with retroactive effect by a court. In both cases, as the Advocate General observes in paragraph 30 of his Opinion, the suspension is effective only for the duration of the proceedings and has the effect of allowing the person who initiated them to remain and work on a provisional basis pending a final decision on his right of residence. 14 That conclusion cannot be invalidated by the fact that, as in the main proceedings, the person concerned has obtained a judgment at first instance which upholds his right of residence but which, since it is challenged on appeal, may yet be set aside and therefore does not definitively regulate his situation as regards his right of residence. 15 The reason for which, in paragraph 31 of its judgment in Sevince, the Court declined to regard as periods of legal employment those completed while the decision refusing the person concerned the right of residence was suspended as a consequence of the proceedings brought by him against that decision was to prevent a Turkish worker from being able to contrive to fulfil that condition and, as a result, to obtain the grant of the right of residence inherent in the right, under the third indent of Article 6(1) of Decision No 1/80, of free access to any paid employment, during a period when he enjoyed a right of residence only provisionally pending the outcome of the dispute. 16 That reason retains its validity so long as it is not definitively established that during the period in question the person concerned had a legal right of residence. Otherwise, a judicial decision finally refusing him that right would be rendered nugatory, and he would thus have been enabled to acquire the rights provided for in the third indent of Article 6(1) during a period when he did not fulfil the conditions laid down in that provision. 17 Mr Kus' s argument that failure to take into consideration a judgment at first instance upholding a Turkish national' s right of residence would mean that a refusal, even if unlawful, to renew a residence permit would be such as to deprive the person concerned of the rights which he may derive from Article 6(1) of Decision No 1/80 is irrelevant, since, should that person be finally recognized as having the right of residence, he must be deemed retroactively to have enjoyed, throughout the period in question, a right of residence that was no longer provisional and, accordingly, to have had the benefit of a stable situation as a member of the labour force. 18 Accordingly, the answer to the first question must be that the third indent of Article 6(1) of Decision No 1/80 must be interpreted as meaning that a Turkish worker does not fulfil the requirement, laid down in that provision, of having been engaged in legal employment for at least four years, where he was employed on the basis of a right of residence conferred on him only by the operation of national legislation permitting residence in the host country pending completion of the procedure for the grant of a residence permit, even though his right of residence has been upheld by a judgment at first instance against which an appeal is pending. Second question 19 By its second question the national court seeks to ascertain whether the first indent of Article 6(1) of Decision No 1/80 must be interpreted as meaning that a Turkish national who obtained a permit to reside on the territory of a Member State in order there to marry a national of that Member State and has worked for more than one year for the same employer under a valid work permit is entitled to the renewal of his work permit under that provision even though, at the time of determination of his application for renewal, his marriage has been dissolved. 20 On that point, it should first be noted that Article 6(1) of Decision No 1/80 is confined to regulating the situation of the Turkish worker with respect to employment, and makes no reference to his situation as far as the right of residence is concerned (see the judgment in Sevince, paragraph 28). 21 It should be noted that, according to its wording, Article 6(1) applies to Turkish workers duly registered as belonging to the labour force of a Member State and that, 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. That provision does not therefore make that right dependant on any other condition, such as the circumstances under which the right of entry and residence was obtained. 22 Accordingly, even though legal employment within the meaning of Article 6(1) presupposes a stable and secure situation as a member of the labour force and, by virtue of this, implies the existence of an undisputed right of residence and indeed, if necessary, possession of a lawful residence permit, the reasons for which that right was conferred, or for which the residence permit was granted, are not decisive for the purposes of their application. 23 It follows that once a Turkish worker has been employed for more than one year under a valid work permit, he must be regarded as fulfilling the conditions laid down in the first indent of Article 6(1) of Decision No 1/80, even though his residence permit was initially granted to him for a purpose other than that of engaging in paid employment. 24 At the hearing the United Kingdom argued that such a view of the matter could result in differential treatment for Turkish nationals depending on whether the national legislation of the Member State in which they are staying permits them to work, where the initial reason for their stay was not to engage in paid employment. 25 However that may be, it should be pointed out that such a situation would merely reflect the fact that Decision No 1/80 does not encroach upon the competence retained by the Member States to regulate both the entry into their territories of Turkish nationals and the conditions under which they may take up their first employment, but merely regulates, particularly in Article 6, the situation of Turkish workers already integrated into the labour force of a Member State. That situation cannot, therefore, in the case of Turkish workers who are already in possession under the legislation of a Member State of a work permit and who, where required, hold a right of residence constitute justification for depriving them of the rights provided for in Article 6(1) of Decision No 1/80. 26 Accordingly, the reply to the second question must be that the first indent of Article 6(1) of Decision No 1/80 must be interpreted as meaning that a Turkish national who obtained a permit to reside on the territory of a Member State in order to marry there a national of that Member State and has worked there for more than one year for the same employer under a valid work permit is entitled under that provision to renewal of his work permit even if at the time of determination of his application his marriage has been dissolved. Third question 27 By its third question the national court seeks essentially to ascertain whether a Turkish worker who fulfils the requirements of the first or third indent of Article 6(1) of Decision No 1/80 may rely directly on those provisions in order to obtain the renewal not only of his work permit but also of his residence permit. 28 On that point, it should first be noted that in its judgment in Sevince the Court ruled that Article 6(1) of Decision No 1/80 has direct effect in the Member States of the European Community (paragraph 2 of the operative part of the judgment). 29 It also held, in that judgment, in the context of the third indent of Article 6(1) of Decision No 1/80 that even though that provisions governs the situation of the Turkish worker only with respect to employment and not to the right of residence, those two aspects 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 provision in question necessarily implies ° since otherwise the right granted by it to the Turkish worker would be deprived of any effect ° the existence, at least at that time, of a right of residence for the person concerned (paragraph 29 of the judgment). 30 The same is also true as regards the first indent of Article 6(1) of Decision No 1/80, since without a right of residence the grant to the Turkish worker, after one year' s legal employment, of the right to renewal of his permit to work for the same employer would likewise be deprived of any effect. 31 That conclusion cannot be invalidated by the consideration that under Article 6(3) of Decision No 1/80 the procedures for applying paragraph (1) are to be established under national rules. As the Court has already observed in its judgment in Sevince (paragraph 22), Article 6(3) of Decision No 1/80 merely clarifies the obligation incumbent on the Member States to take such administrative measures as may be necessary for the implementation of that provision, without empowering them to make conditional or restrict the application of the precise and unconditional right which the provision grants to Turkish workers. 32 In the observations which it submitted to the Court, the German Government expressly challenged the view that there was necessarily a link between the right of access to the employment market and the right of residence. Even as regards freedom of movement for workers within the Community, it claimed that situations might arise where the two aspects did not necessarily coincide. By way of illustration, it referred first to Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1963-1964, p. 117), Articles 3(2) and 4(1) of which permit the withdrawal or refusal of the right of residence on the grounds of certain criminal offences or diseases, and, secondly, to the judgment in Case C-292/89 The Queen v The Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen [1991] ECR I-745 , according to which the right of residence of a Community national who has sought work without success may be subjected to a temporal limitation without his losing his unlimited access to the employment market. 33 Neither of those examples is relevant. Far from demonstrating that an individual may enjoy a right of access to the employment market without a right of residence, they underline the fact that the right of residence is indispensable to access to and engagement in paid employment. 34 First, it is in order to prevent any inordinate restriction of a right as fundamental as freedom of movement for workers that Article 3(2) of Directive 64/221 provides that criminal convictions may not in themselves constitute grounds for public policy measures and Article 4(1) that only certain diseases, exhaustively listed in the Annex, moreover, may justify refusal of entry on to the territory of a Member State or refusal to issue a first residence permit. Decision No 1/80, like Article 48(3) of the Treaty and Directive 64/221, also provides, under Article 14(1), that the rights which it grants may be subject to limitations justified on grounds of public policy, public security or public health. 35 Secondly, the Court recognized in Antonissen that, on the basis of the Treaty provisions on freedom of movement for workers, Community nationals have a right of residence on the territory of the Member States not only in order to reply to offers of employment actually made but also for the purpose of seeking such employment. 36 Accordingly, the answer to the third question must be that a Turkish worker who fulfils the requirements of the first or third indent of Article 6(1) of Decision No 1/80 may rely directly on those provisions in order to obtain the renewal not only of his work permit but also of his residence permit. Costs 37 The costs incurred by the German, Netherlands and United Kingdom Governments and by 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, in answer to the questions referred to it by the Hessischer Verwaltungsgerichtshof by order of 12 August 1991, hereby rules: 1. The third indent of Article 6(1) of Decision No 1/80 of the Council of Association established by the Agreement establishing an Association between the European Economic Community and Turkey of 19 September 1980 on the development of the Association must be interpreted as meaning that a Turkish worker does not fulfil the requirement, laid down in that provision, of having been engaged in legal employment for at least four years, where he was employed on the basis of a right of residence conferred on him only by the operation of national legislation permitting residence in the host country pending completion of the procedure for the grant of a residence permit, even though his right of residence has been upheld by a judgment of a court at first instance against which an appeal is pending. 2. The first indent of Article 6(1) of Decision No 1/80 must be interpreted as meaning that a Turkish national who obtained a permit to reside on the territory of a Member State in order to marry there a national of that Member State and has worked there for more than one year with the same employer under a valid work permit is entitled under that provision to renewal of his work permit even if at the time when his application is determined his marriage has been dissolved. 3. A Turkish worker who fulfils the requirements of the first or third indent of Article 6(1) of Decision No 1/80 may rely directly on those provisions in order to obtain the renewal not only of his work permit but also of his residence permit. © European Communities, 2001 All rights reserved BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII