Under a decision of the Association Council set up by the EC-Turkey Association Agreement, a Turkish worker who has been detained pending trial and given a suspended prison sentence but has not ceased to belong to the lawful labour force is, in certain circumstances, conferred with a right to renew his residence permit
Mr Ömer Nazli, a Turkish national, was permitted to enter Germany in 1978. From 1979 to 1989 he worked, with appropriate work and residence permits, for the same employer. Since 1989 he has held a work permit which is of unlimited duration and entirely unconditional.
Mr Nazli was implicated in a case of drug trafficking in Germany and detained, pending trial, from December 1992 to January 1994.
In 1994 he was convicted of being an accomplice to the trafficking of 1.5 kg of heroin and given a suspended prison sentence of 21 months. Following his period in custody pending trial he again found a permanent job in Germany.
Subsequently, Mr Nazli applied for the extension of his residence permit. That application was rejected by the Stadt Nürnberg (Municipality of Nuremberg) which ordered his expulsion on the basis of the German Law on Foreign Nationals.
Mr Nazli challenged that decision before the Bayerisches Verwaltungsgericht Ansbach (Bavarian Administrative Court, Ansbach).
That court asked the Court of Justice whether the measures adopted by the German authorities (the refusal to renew his residence permit and expulsion) were compatible with the decision of the Association Council set up by the Association Agreement between the European Economic Community and Turkey.
The Court held, first of all, that a Turkish national who has been in legal employment in a Member State for an uninterrupted period of more than four years and is then detained pending trial for more than a year and sentenced to a term of imprisonment suspended in full does not cease, because he was not in employment while detained pending trial, to belong to the lawful labour force of the host Member State if he finds a job again within a reasonable period after his release.
In those circumstances, according to the Court, the Turkish national concerned may claim an extension of his residence permit for the purposes of continuing to exercise his right of free access to any paid employment of his choice, a right granted to him by the decision of the Association Council. The Court pointed out that the very purpose of suspending a sentence is to reintegrate the convicted person into society quickly, and it would be contradictory to exclude him from the labour force on the basis of his conviction.
The Court then considered whether the public policy exception relied upon by the German authorities, which, as laid down in the decision of the Association Council, provides grounds for the expulsion of a Turkish national in some circumstances, applied in this particular case.
The Court drew an analogy with the principles laid down in the field of freedom of movement for workers who are nationals of a Member State. Without minimising the threat to public order constituted by the use of drugs, the Court concluded from those principles that the expulsion, following a criminal conviction, of a Turkish national who enjoys a right granted by the decision of the Association Council can be justified only where his personal conduct is liable to be prejudicial to the public interest again.
Community law precludes the expulsion of a such a Turkish national which is based exclusively on general preventive grounds (to deter other foreign nationals) or automatically follows a criminal conviction.
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