Language of document : ECLI:EU:C:1998:262

OPINION OF ADVOCATE GENERAL

FENNELLY

delivered on 28 May 1998 (1)

Case C-1/97

Mehmet Birden

v

Stadtgemeinde Bremen

1.
    Where a Turkish worker is employed and paid normal remuneration undera special publicly-subsidised scheme of ancillary public utility work intended toenable such persons to build up social security contributions and to improve theirchances of finding other work, does he belong to the regular labour force of theMember State funding the scheme? This, in essence, is the issue raised in areference from the Verwaltungsgericht der Freien Hansestadt Bremen(Administrative Court of the Free Hanseatic City of Bremen). The case calls, inparticular, for consideration of the relatively recent decision of the Court inGünaydin. (2)

2.
    Articles 48, 49 and 50 of the Treaty establishing the European Communityare to guide the Contracting Parties (the Member States and the Community) tothe Association Agreement with Turkey (3) 'for the purpose of progressivelysecuring freedom of movement of workers between them‘. (4) This does not, ofcourse, mean that Turkish nationals enjoy rights to move freely within theCommunity, but only that they may acquire certain rights in the host Member Statewhich has admitted them. (5)

3.
    The third recital in the preamble to Decision No 1/80 of 19 September 1980of the Council of Association on the development of the Association (6) (hereinafter'the Decision‘) states that it is necessary, 'in the social field, ... to improve thetreatment accorded workers and members of their families in relation to the

arrangements introduced by Decision No 2/76 of the Association Council‘. (7) Section 1 of Chapter II of the Decision deals with questions relating to employmentand the free movement of workers. In that section, Article 6 of the Decisionprovides, in relevant part, as follows:

'(1)    Subject to Article 7 on free access to employment for members of hisfamily, a Turkish worker duly registered as belonging to the labour force ofa Member State: [(8)]

—    shall be entitled in that Member State, after one year's legal employment, [(9)]to the renewal of his permit to work for the same employer, if a job isavailable;

—    shall be entitled in that Member State, after three years of legalemployment and subject to the priority to be given to workers of MemberStates of the Community, to respond to another offer of employment, withan employer of his choice, made under normal conditions and registeredwith the employment services of that State, for the same occupation;

—    shall enjoy free access in that Member State to any paid employment of hischoice, after four years of legal employment.

(2)    Annual holidays and absences for reasons of maternity or an accident atwork or short periods of sickness shall be treated as periods of legalemployment. Periods of involuntary unemployment duly certified by therelevant authorities and long absences on account of sickness shall not betreated as periods of legal employment, but shall not affect rights acquiredas the result of the preceding period of employment.

... .‘

4.
    Among the other provisions in that section of the Decision, Article 8(1)stipulates that priority be accorded to Turkish workers where Member Stateauthorities authorise a call on non-Community nationals to meet an offer of

employment which cannot be met 'by calling on the labour available on theemployment market of the Member States‘. Article 8(2) states:

'The employment services of the Member States shall endeavour to fill vacantpositions which they have registered and which the duly registered Communitylabour force has not been able to fill with Turkish workers who are registered asunemployed and legally resident in the territory of that Member State.‘

Reference is also made in Articles 7 and 10 of the Decision to Turkish workerswho are duly registered as belonging to the labour force of a Member State, inrelation to employment rights of family members and the principle ofnon-discrimination respectively, while Article 11 establishes equivalent rights fornationals of the Member States duly registered as belonging to the labour force inTurkey.

5.
    Paragraph 1 of the German Bundessozialhilfegesetz (Federal Law on SocialAssistance, hereinafter 'the BSHG‘) defines social assistance as the grant ofmaintenance assistance (Lebensunterhalt) and the assistance given to persons inparticular circumstances. Its objective is stated to be to permit the beneficiary tolive a life compatible with human dignity. Paragraph 19 of the BSHG provides, inrelevant part, as follows:

(1)    Work opportunities shall be created for people seeking assistance, inparticular young people who are unable to find work. In order to createand maintain work opportunities, costs may also be assumed. The workopportunities shall normally be of temporary duration and apt to improvethe integration into working life of the person seeking assistance.

(2)    If an opportunity of performing ancillary, public utility work is created forthe person seeking assistance, he may be granted either the usualremuneration or maintenance assistance plus appropriate expenses. Workoffered will be ancillary only if it would not otherwise be done, or not onthat scale or at that time. The requirement for the work offered to beancillary may be disregarded in individual cases if this helps to promoteintegration into working life or if it is made necessary by the entitledperson's and his family's particular circumstances.

(3)    If maintenance assistance is granted under subparagraph (2) above, nocontract of employment for the purpose of employment law and noemployment relationship for the purpose of statutory health and pensioninsurance will arise. However, the provisions on protection at work shallapply.

Paragraph 25 of the BSHG, in the version applicable up to 1 August 1996, deniedthe right to maintenance assistance to any person who refused to undertakereasonable work or to accept a reasonable activity.

6.
    Mehmet Birden (hereinafter 'the applicant‘) is a Turkish national. Hemoved to Germany in 1990 and, in January 1992, married a German national. Asa result, he was granted a residence permit, valid until 29 June 1995, and anunconditional work permit. He failed to find work and eventually came to live onsocial assistance. On 3 January 1994, the applicant was engaged on a one-yearcontract as a semi-skilled odd-job man with the Kulturzentrum (Cultural Centre)Lagerhaus Bremen-Ostertor e.V. This contract was extended until the end of 1995by a further one-year contract concluded on 2 January 1995. The applicant wasrequired to work for 38.5 hours per week. His remuneration was that of aparticular category of worker (salary group 2a, step 1), determined in accordancewith the Manteltarifvertrag für Arbeiter der Länder (Collective pay agreement forworkers of the Regions). Income tax, the solidarity surcharge and contributions forhealth-care, pension and unemployment insurance were deducted from his pay,resulting in net pay of DM 2 155.70 per month. The plaintiff did not receivemaintenance assistance during the period covered by the contracts.

7.
    The contracts in question were arranged and funded by the social servicesauthorities of the Free Hanseatic City of Bremen (Freie Hansestadt Bremen),under a programme called 'Werkstatt Bremen‘ ('Workshop Bremen‘). WerkstattBremen is intended, in accordance with Paragraph 19(2) of the BSHG, to providework for a period of up to two years to recipients of social assistance who have noright to benefits from the Bundesanstalt für Arbeit (Federal Labour Office), inorder to assist them in entering or re-entering the labour market. The payment ofsocial insurance contributions affords participants the right subsequently to drawunemployment benefit or unemployment assistance under theArbeitsförderungsgesetz (Law on Promotion of Employment). Werkstatt Bremenmay provide up to 100% of the labour costs undertaken by employers. It appearsthat posts may also be co-financed by Werkstatt Bremen and employers. (10) Theemployers are normally public or public-interest bodies, although the latter may,it seems, be formed by associations of private individuals. (11)

8.
    The applicant's marriage was dissolved on 10 June 1995. His application of14 June 1995 to the immigration authorities of the defendant in the mainproceedings, the Stadtgemeinde Bremen (City of Bremen, hereinafter 'thedefendant‘), to have his residence permit extended beyond 29 June of that yearwas rejected by a decision of 15 August 1995, due to his divorce. The applicant has

no entitlement under national-law provisions to remain in Germany. (12) Article 6(1) of the Decision was considered to be inapplicable to him because hewas not employed as a duly registered member of the labour force. At thebeginning of 1996, the Cultural Centre offered the applicant a further contract ofemployment of indefinite duration, for 12 hours' work a week, outside theframework of the Werkstatt Bremen scheme. He could not conclude this contractbecause he did not possess a residence permit. The applicant's administrativeappeal was rejected on 28 March 1996 on the same grounds as his initialapplication.

9.
    On 9 April 1996 the applicant commenced the present proceedings beforethe Verwaltungsgericht der Freien Hansestadt Bremen (hereinafter 'the nationalcourt‘), seeking the annulment of the decisions of 15 August 1995 and 28 March1996 and the extension of the validity of his residence permit on the basis ofArticle 6(1) of the Decision. The defendant argued that fixed-term work contractsunder Paragraph 19 of the BSHG are available only to recipients of socialassistance who are not entitled to unemployment benefit and who lack significantqualifications. Such posts were not, therefore, comparable to those on the normallabour market.

10.
    The national court deems the material time for assessing the entitlementsof the applicant to be some time in the summer of 1995 (14 June, 29 June or15 August); in any event, it does not consider the offer of a job commencing in1996 to be material. It stayed the proceedings and referred the following questionfor a preliminary ruling pursuant to Article 177 of the Treaty establishing theEuropean Community (hereinafter 'the Treaty‘):

'Is a Turkish worker a duly registered member of the labour force of a MemberState, within the meaning of Article 6(1) of Decision No 1/80 of the EEC-TurkeyAssociation Council on the development of the Association, if he has a jobsponsored by that Member State with public funds and requiring payment of socialsecurity contributions which is meant to enable him to enter or re-enter workinglife and which, on account of the purpose of the State sponsorship, may only beoffered (pursuant to Paragraph 19(2) of the Bundessozialhilfegesetz) to a limitedgroup of persons?‘

11.
    Written and oral observations have been submitted by the applicant, theFederal Republic of Germany, the Hellenic Republic and the Commission of theEuropean Communities. Written observations were also submitted by the FrenchRepublic.

12.
    The applicant reiterates the argument he submitted to the national court,namely that a person belongs to the labour force of a Member State for thepurposes of Article 6(1) of the Decision by virtue of his lawful participation ineconomic life through the exercise of an occupational activity for reward, subjectto the deductions applicable to all workers. For such labour-market participationto be 'regular‘, it is necessary only that an employment be neither illegal norfictional. It is immaterial whether that employment is publicly funded in order tofacilitate the integration into the labour market of a limited number of beneficiariesof social assistance.

13.
    France contends that the applicant's employment is of an ancillary,non-commercial kind which, being devoted to public-interest tasks which are fundedwith public money for social purposes, does not constitute participation in theregular labour force. It refers to the statement in Bozkurt that the legality ofemployment must be 'determined in the light of the legislation of the host Stategoverning the conditions under which the Turkish worker entered the territory andis employed there‘ (13) and adds that Paragraph 19(3) of the BSHG indicates that,as a matter of German law, no employment relationship exists for the purposes ofemployment law or of health and pension insurance. (14) Equivalent programmesin France are more properly qualified as being educational in character, despite theframework of an employment contract.

14.
    Germany submits that social employment schemes designed to assist theintegration of a restricted category of persons into the labour market do not giverise to the status of worker in Community law. (15) However, the real issue is notwhether the applicant is a worker, but whether he belongs to the regular labourmarket. Article 6(1) of the Decision should be read as referring to the generalemployment market, in which all normal workers can participate without restriction. Irrespective of the status of the applicant in German employment law and of theattempt to make posts under the programme correspond as much as possible to'normal‘ employment, his employment was of an essentially social and 'artificial‘character. The judgment in Bozkurt states that the Turkish worker's position mustbe appreciated in the light of national law regarding his conditions of employment,and that his situation in the labour force, for the purposes of Article 6(1), must bestable and secure. (16) This criterion is not satisfied by a temporary work contract. Furthermore, the applicant's employment was concerned with merely marginal

tasks for which there was no market demand and which would not otherwise havebeen performed, and for which the salary had, therefore, to be paid from publicfunds. His employer was not in competition with other market actors, as thedevelopment of a labour market parallel to the general market was not permitted.

15.
    Greece argues that it is necessary to examine, in any given case, whether thehost Member State intended at the outset to integrate a Turkish worker into itslabour market. (17) Employment under the BSHG was not intended to permit thedirect entry of the applicant to the German labour force, but rather to ensure hewas not dependent on social assistance and to integrate him eventually into thenormal labour market. Greece also argued at the oral hearing that the applicant'swork had no real economic value, that it was unstable and insecure because merelytemporary, and that it did not satisfy the criteria mentioned by the Court inGünaydin (18) distinguishing a normal employment relationship from apublicly-funded training programme.

16.
    The Commission proposes a three-part test for the application ofArticle 6(1) of the Decision. One of these is the subject of the question referredand the Commission does not think the applicant satisfies it. Regarding the firstpart of the test, the question whether the applicant is a worker, the Commissionargues for as full as possible an analogy with Article 48 of the Treaty, (19) and fora restrictive reading of Bettray due to the special circumstances of that case (a drugaddict participating in a work scheme specially designed for persons who wereincapable of undertaking normal work). The applicant satisfied the normalArticle 48 conditions of subordination to and remuneration by an employer, andhis work had a certain value and was more than merely marginal.

17.
    The third part of the test, the requirement in the indents of Article 6(1) thata Turkish national be in legal employment for one of three specified periods, is alsosatisfied in the present case.

18.
    However, the second part, that in the main clause of Article 6(1) of theDecision regarding registration as belonging to the labour force, is not satisfied, inthe Commission's view. This cannot refer to a requirement that suchlabour-market participation be merely legal, as this is governed by the condition oflegal employment. It must, therefore, be understood as referring to a realeconomic activity, rather than an artificial one which is wholly financed with public

money for social purposes and which is not exposed to economic competition. TheCommission points out that this condition was absent from Decision No 2/76, andwas omitted from more recent association agreements with the countries of centraland eastern Europe, which otherwise establish more limited rights to freedom ofmovement for workers than do the Agreement and the Decision.

Analysis

19.
    It is worth restating at the outset the general approach taken by the Courtto the interpretation and application of Article 6 of the Decision. The Court hasconsistently held that Article 6(1) of the Decision has direct effect in the MemberStates and that Turkish nationals who satisfy its conditions may therefore relydirectly on the rights given them by the various indents of that provision. (20)

20.
    In the light of the statement in the third recital to its preamble that theDecision seeks to improve the treatment accorded to workers and their families inthe social field, the provisions of Section 1 of Chapter II of the Decision, of whichArticle 6 forms part, constitute a further stage in securing freedom of movementfor workers on the basis of Articles 48, 49 and 50 of the Treaty. The Court hasaccordingly considered it essential that the principles enshrined in those Treatyarticles be interpreted, so far as possible, to extend to Turkish workers who enjoythe rights conferred by the Decision. (21) However, the Decision does not encroachupon the competence retained by the Member States to regulate both the entryinto their territories of Turkish nationals and the conditions under which they maytake up their first employment, but merely regulates, in Article 6, the situation ofTurkish workers already integrated into the labour force of the host MemberState. (22)

21.
    I now turn to the criteria to be satisfied by a Turkish national in order tobenefit from Article 6(1) of the Decision. On a simple reading of the text, theseare three in number, which are essentially those proposed by the Commission. (23) First, the Turkish national must be a 'worker‘. Secondly, he must be 'dulyregistered as belonging to the labour force of a Member State‘. Translating freelyfrom the French, German and Italian versions of the Decision, he must belong tothe regular employment market of a Member State, or, having regard to the Danish

and Dutch versions, to the legal employment market. Thirdly, he must be legallyemployed for one of three possible periods, each of which gives rise to certainrights of access to further employment. In the present case, the applicant claimsone year's legal employment, which would entitle him to the renewal of his permitto work for the same employer, provided the contested second criterion is met.

22.
    All three semantically distinct criteria entail some connection with work oremployment. It is not surprising, therefore, that, in practice, the Court has onoccasion simultaneously assessed the fulfilment of more than one of these criteria,or has read one in the light of another. Thus, in Sevince, the Court stated thatlegal employment 'presupposes a stable and secure situation as a member of thelabour force‘, (24) which appears to duplicate, in part, the second criterion. (25) TheCourt probably approached the issue as one relating to legal employment becauseit was necessary to determine whether periods of employment while the worker'ssituation in the labour force was unstable and insecure could be counted in orderto build up entitlements under Article 6(1). The condition of a stable and securesituation is not satisfied if the right of residence of the Turkish national is merelyprovisional, pending a final decision on initial refusal of a residence permit, (26) orif his residence permit was obtained by fraud. (27)

23.
    The grounds on which the Court decides whether a Turkish national is aworker will often, in the absence of special circumstances, also be sufficient for thesecond and third criteria to be satisfied. Thus, in Günaydin and in Ertanir, therewas no dispute that the Turkish nationals in question were workers, but the Courtemployed a test very similar to that used to define a worker under Article 48 of theTreaty, developed in cases such as Lawrie-Blum v Land Baden-Württemberg (28) andLe Manoir, (29) to address the second requirement of Article 6(1), that of being dulyregistered as belonging to the labour force of a Member State. It stated that 'itshould be ascertained whether the worker is bound by an employment relationship

covering a genuine and effective economic activity pursued for the benefit andunder the direction of another person for remuneration‘. (30)

24.
    None the less, each of the three criteria in Article 6(1) of the Decision has,in my view, distinct features, which I shall now attempt to sketch in general termsbefore addressing the particular circumstances of the present case. Broadlyspeaking, the test employed under Article 48 of the Treaty should serve todetermine whether a Turkish national is a worker. This is consistent with therequirement that, pursuant to Article 12 of the Agreement, the Decision beinterpreted, as far as possible, in the light of the Treaty provisions on freedom ofmovement for workers. This, of course, also entails determining the effect ofArticle 48 cases such as Bettray (31) in the context of the Decision.

25.
    Bettray concerned a drug addict who participated in an employment schemeunder the Netherlands' Social Employment Law run for persons 'who, for anindefinite period, [were] unable, by reason of circumstances related to theirsituation, ... to work under normal conditions‘. (32) The Court stated that '[n]eitherthe level of productivity nor the origin of the funds from which the remunerationis paid can have any consequence in regard to whether or not the person is to beregarded as a worker‘. (33) However, where undertakings or work associations werecreated solely in order to run activities as 'a means of rehabilitation or integrationfor the persons concerned‘, and where the activities were 'adapted to the physicaland mental possibilities of each person‘ in order to maintain, re-establish ordevelop their capacity for work, rather than those persons having been 'selectedon the basis of their capacity to perform a certain activity‘, it could not be said thatthere existed an effective or genuine economic activity. (34) As the test oflabour-force membership in Günaydin is in most respects identical to theCommunity-law definition of a worker, and the Court in that case qualified the testby reference to vocational training and to programmes of integration into theworkforce, it is more appropriate to consider the concrete application of Bettray inmy discussion below of the former case in the context of the second criterion.

26.
    Looking briefly at the third criterion of legal employment, and provided thatthe second criterion, which is crucial in this case, has been satisfied, this wouldappear to require, in addition, merely that the employment for one of the specifiedperiods was not illegal, in the sense of having been criminal, contrary to any

conditions attached to a residence permit or otherwise unlawful. (35) There is nosuggestion that the applicant fails to fulfil this criterion.

27.
    The issue in the present case has focused on the second criterion inArticle 6(1) of the Decision, that of the due registration of the worker as belongingto the (regular or legal) labour force of a Member State. (36) Certain of theelements required to fulfil this criterion have already been identified in thecase-law. Of course, the task will always fall to the national court to determine, inthe light of the case-law of the Court, and of the interpretation furnished in anypreliminary ruling, whether an individual case fulfils this criterion. It must first bedetermined whether the legal relationship of employment of the person concernedcan be located within the territory of a Member State or retains a sufficiently closelink with that territory. (37) As we have seen, the worker's situation as a memberof the labour force must also be stable and secure, in particular regarding theauthorisation for his residence in the Member State in question before theacquisition of residence rights ancillary to rights under Article 6(1). (38) Neither ofthese conditions presents a problem in the present case. The temporary characterof the applicant's contract should not be taken, in my view, as indicating that hissituation in the labour market was unstable or insecure. As developed in thecase-law, that criterion relates to the worker's position on the labour market as awhole, due, in particular, to difficulties regarding the authorisation of residence,rather than to the nature of a particular employment contract.

28.
    It has been argued, chiefly in the light of one possible construction of theFrench and German texts of Article 6(1) of the Decision, that the requirement thatworkers belong to the 'regular‘ employment market (39) must be read as referringto a supposedly 'normal‘ or 'general‘ employment market, rather than an'artificial‘ one; and, in particular, that the normal character of a given post is tobe determined by reference to whether it is publicly funded, whether it hasessentially social objectives such as the integration of workers in the market,whether the tasks in question are marginal or ancillary ones, performed in thepublic interest, and which would not normally be performed pursuant to thefree-market principles of supply and demand, whether it is removed from the scope

of normal competition between undertakings and between workers, and whetherit is merely temporary in character.

29.
    A test with some of these detailed characteristics, which I will discuss furtherbelow, was developed by the Court in Günaydin, where the Court spoke of theexistence of 'a normal employment relationship‘. (40) As will be seen, I do notthink a normal employment relationship can be automatically equated with whathas been contended to be the normal employment market. However, it isimportant to identify why that test was developed. In the light of the scheme of theDecision and of the case-law, the essential element of the criterion of being 'dulyregistered as belonging to the [regular or legal] labour force‘ is, in my view, thatthe worker in question be employed or available for employment, and that he havecompleted the applicable formalities required by national law. (41)

30.
    The requirement that the Turkish worker comply with such formalitiesreflects the express requirement of registration in the English version ofArticle 6(1), and also provides a persuasive alternative construction of the term'regular‘ which appears in certain other language versions. A reading ofArticle 6(1) of the Decision in the light of Article 8 shows that the requirement ofregistration is part of a general scheme to supervise and coordinate offers ofemployment and the labour available. This impression is reinforced by thereference in the second indent of Article 6(1) to Turkish workers' entitlement afterthree years of legal employment, and subject to Community preference, to take upcertain posts which 'are registered with the employment authorities of that State‘. The application of the rule in Article 10 on non-discrimination as regardsremuneration and other conditions of work is also facilitated by the registration ofTurkish workers. Article 6(2) of the Decision presupposes that an involuntarilyunemployed Turkish worker, whose periods of unemployment are 'duly certifiedby the relevant authorities‘, remains, at least for a time, duly registered asbelonging to the (regular or legal) labour force of a Member State, because itpermits rights acquired as the result of the preceding period of employment to beretained. A reading of the term 'régulier‘ in the French version as relating tocompliance with formalities imposed by law or regulation is supported by the useof the same term for the third criterion, 'emploi régulier‘, rendered in English as'legal employment‘. The French version of Article 8 of the Decision also refersto 'chômage régulier‘. Whatever distinction can be made between personsemployed in 'regular‘ free-market jobs and those with other employments, no suchdistinction can operate regarding the unemployed. Furthermore, the references tothe legal employment market in the Danish and Dutch versions of Article 6(1) ofthe Decision imply that that condition is concerned with compliance with formallegal requirements, rather than with the 'laws‘ of the market.

31.
    This approach is also reflected in the case-law of the Court. In Bozkurt, theCourt stated that Article 6(2) of the Decision 'necessarily presupposes fitness tocontinue working‘ (42) and that, 'in the case of long-lasting incapacity for work [asin that case], the worker is no longer available as a member of the labour force atall and there is no objectively justified reason for guaranteeing him the right ofaccess to the labour force and an ancillary right of residence‘. (43) Whether byreason of total and permanent incapacity for work, or of other factors such asretirement, Article 6 of the Decision 'does not ... cover the situation of a Turkishworker who has definitively ceased to belong to the labour force‘. (44)

32.
    In Tetik, the Court stated that a Turkish worker who, after four years'employment, voluntarily left his work to seek other employment in the MemberState in question, 'cannot automatically be treated as having definitively left thelabour force of that State, provided, however, that he continues to be dulyregistered as belonging to the labour force of the Member State in question, withinthe meaning of the first phrase of Article 6(1)‘. (45) The Court continued:

'Where a Turkish worker was unable to enter into a new employment relationshipimmediately after having abandoned his previous employment, as in the mainproceedings, that condition continues, in principle, to be satisfied only in so far asthe person who finds himself without employment satisfies all the formalities thatmay be required in the Member State in question, for instance by registering as aperson seeking employment and remaining available to the employment authoritiesof that State for the requisite period.

That requirement also makes it possible to ensure that during the reasonableperiod which he must be granted in order to allow him to enter into a newemployment relationship the Turkish national does not abuse his right of residencein the Member State concerned but does in fact seek new employment.‘ (46)

33.
    It emerges from this case-law, and from a reading of Article 6(1) in itslegislative context, that the criterion that Turkish workers be duly registered asbelonging to a Member State's labour force comprises linked formal andsubstantive elements. The worker must comply with all formalities regardingregistration as an employed or (during a reasonable time period) unemployedperson, and he must be available for and seeking work if not actually employed.

34.
    This brings me to consider Günaydin. In its judgment in Günaydin, theCourt identified criteria which are, in part, of greater apparent relevance to thevery different facts of the present case than to the result ultimately reached in thatcase. Günaydin concerned the refusal of a permanent residence permit to aTurkish worker who was permitted to enter Germany to study, and later to stay onsolely in order to be trained and to gain experience at the factory of a Germancompany. During his four years' employment, he became a valued member of thefactory staff, a member whom it would be impossible to replace.

35.
    Advocate General Elmer argued for a distinction to be drawn between, onthe one hand, employment and, on the other, training of a theoretical oreducational nature, with those engaged in the latter activity not being regarded asforming part of the labour force. (47) The concept of being duly registered asbelonging to the labour force of a Member State had, in his view, to be broadenough to include work involving elements of training. Advocate General Elmerproposed that paid employment be deemed to fall outside that concept only in thecase of practical work performed in the context of a training course in the strictsense. (48) All the indications were, he thought, that Mr Günaydin was engaged inordinary work rather than, for example, apprentice training, as he had beenrecruited under the general conditions of the labour market, received a normalsalary, did not receive a State training allowance, and had been recruited for anumber of years. (49)

36.
    I have already observed that, in Günaydin, the Court applied, as onecriterion for whether a worker belongs to the labour force of a Member State, thetest of 'whether the worker is bound by an employment relationship covering agenuine and effective economic activity pursued for the benefit and under thedirection of another person for remuneration‘. (50) It is in the context of adistinction between vocational training (51) and a Turkish worker's membership ofthe labour force that the Court stated:

'Nevertheless, in a case such as that at issue in the main proceedings, a Turkishworker who, at the end of his vocational training, is in paid employment with the

sole purpose of becoming acquainted with and preparing for work in a managerialcapacity in one of the subsidiaries of the undertaking which employs him must beconsidered to be bound by a normal employment relationship where, in genuinelyand effectively pursuing an economic activity for the benefit of and under thedirection of his employer, he is entitled to the same conditions of work and pay asthose which may be claimed by workers who pursue within the undertaking inquestion identical or similar activities, so that his situation is not objectivelydifferent from that of those other workers.‘ (52)

37.
    In other words, the mere fact that the employment is solely designed toqualify the worker for work elsewhere in the undertaking does not deprive it of thecharacter of an 'employment relationship‘. The Court's approach clearly restricts,none the less, the simple application of the Community-law definition of workersto the second criterion in Article 6(1) of the Decision, in so far as pay levels andworking conditions are deemed to be a relevant factor in assessing the existence ofan employment relationship. The relevance of pay levels was expressly disavowedby the Court, in the Article 48 context, in Lawrie-Blum. (53) The divergence isexplicable by the fact that, contrary to the position in that case, the Court inGünaydin apparently viewed activity which would enable the person involved to bedeemed to be a worker in a Community context as falling outside the scope of dueregistration as a member of the (regular or legal) labour force under Article 6(1)of the Decision where it was undertaken within the framework of 'specificvocational training‘. (54)

38.
    It should also be noted that the Court's conception of 'a normalemployment relationship‘ in Günaydin is in no way connected with the actualeconomic value of the work in question, other than in so far as this is reflected inthe pay awarded for it. There is no attempt to distinguish between tasks which areperformed in response to the free play of the principle of supply and demand andthose which have a public-interest content. The approach suggested by theCommission and the Member States who submitted observations, looking beyondthe existence of an economic activity and of an employment relationship ofsubordination and remuneration with a particular employer, which can be verifiedin each case, to the sustainability of that relationship in free-market conditions inthe supposedly normal employment market, would be hopelessly unworkable inpractice. It would ignore the fact that, in addition to public and charitableendeavour as such, much apparently market-oriented economic activity depends onpublic subventions or contracts, the public provision of infrastructure, the publicprovision of trained labour, and so on, so that 'normal‘ market conditions, in this

broader sense, are not easy to identify in the context of an individual case. In anyevent, the approach advocated does not appear to me to reflect the Danish,English and Dutch texts of the Decision.

39.
    The Court continued in Günaydin:

'In this connection, it is for the national court to determine whether that conditionis satisfied and, in particular, whether the worker has been employed on the basisof national legislation derogating from Community law and intended specifically tointegrate him into the labour force and whether he receives in return for hisservices remuneration at the level which is usually paid, by the employer concernedor in the sector in question, to persons pursuing identical or comparable activitiesand which is not preponderantly financed from the public purse in the context ofa specific programme for the integration of the person concerned into theworkforce.‘ (55)

40.
    The reference to national derogating legislation appears to accord somesignificance to the status of a post in national employment law. (56) The referencesto the intention 'specifically to integrate him into the labour force‘ and, moreespecially, to remuneration 'which is not preponderantly financed from the publicpurse in the context of a specific programme for the integration of the personconcerned into the workforce‘, seem out of context in the circumstances ofGünaydin. There was no suggestion that Mr Günaydin was employed under anysuch legislation or such programme.

41.
    The Court stated in the operative part of its judgment in Günaydin thatArticle 6(1) of the Decision 'is to be interpreted as meaning that a Turkishnational who has been lawfully employed in a Member State for an uninterruptedperiod of more than three years in a genuine and effective economic activity for thesame employer and whose employment status is not objectively different to that ofother employees employed by the same employer or in the sector concerned andexercising identical or comparable duties is duly registered as belonging to thelabour force of that State and is legally employed within the meaning of thatprovision‘.

42.
    The central element of the test propounded in Günaydin is, thus, that theemployment relationship at issue should cover 'genuine and effective economicactivity‘, the same test as was used by the Court in Bettray. Its application in that

case excluded persons who were indefinitely unable to work under normalconditions, and who were employed under the Social Employment Law, fromconsideration as workers for the purposes of Community law. In that case, as inthis, the employment scheme was financed from the public purse (although theCourt stated in Bettray that this was not normally relevant).

43.
    It is for the national court to assess whether the work performed by theapplicant at the Cultural Centre constitutes 'genuine and effective economicactivity‘, having regard to the questions whether the work was essentiallyrehabilitative, as in Bettray, and whether it merely constituted a form of 'specificvocational training‘. None of the indicia mentioned by the Court in paragraph 34of its judgment in Günaydin should be decisive on its own, nor should theynecessarily be considered to be exhaustive. Thus, while the fact of public fundingis an important element, the national court should also consider whether the workperformed provides genuine benefit to the employer and, as the Court indicatedin Günaydin, whether the pay and conditions, including provisions for deduction ofsocial and other contributions, are the same as or similar to those claimed byworkers in the same sector of employment. The restricted pool from whichparticipants in the Werkstatt Bremen scheme are drawn is not, in my view, materialif the objective characteristics of the work they engage in are similar to those of theactivities of other workers. (57) It is relevant, I think, that the applicant was paid awage determined in accordance with a public-sector collective pay agreement andhis pay was subjected to deductions for income tax, the solidarity surcharge andcontributions for health-care, pension and unemployment insurance. Furthermore,it appears that the applicant enjoyed the status of an employee under nationalemployment law — the derogation from national employment law underParagraph 19(3) of the BSHG seems to apply only to persons in receipt ofmaintenance assistance.

44.
    I do not think decisive weight should be given either to the fact that thework under the scheme is to be ancillary, i.e. work that would not be performedwithout the scheme, as this, as I have said, widens the perspective from thecharacter of the individual employment relationship to an appreciation of thegeneral free-market sustainability of a post, which is not warranted by the text orscheme of the Decision or by the case-law. It cannot be suggested that an odd-jobman or caretaker does not perform in principle useful and valuable work. Similarly, although the fact that an employment scheme has as its objective theintegration of participants into the workforce may raise the possibility that a workeris not yet available for work or able to engage in effective and genuine economicactivity, or is engaged merely in a form of specific vocational training, the objectiveof rehabilitation and integration would, in my view, be decisive only if the factsapproximated to Bettray.

45.
    There are numerous possible points of distinction from the type ofrehabilitation programme at issue in Bettray. Although the applicant suffers froma lack of formal qualifications, there is no suggestion that he is indefinitely unableto work, that his employer was established with the sole purpose of employingpeople in his position, or that his employment at the Cultural Centre was devisedmore by reference to his capabilities than to the Centre's needs. While the schemein which he participated has a programme which is protective of those involved andresults merely in the payment of maintenance assistance, his own participation waspart of a more general work-experience programme, at normal rates of pay, witha view to seeking further employment immediately after its completion. The factthat the applicant was offered further similar work by the Cultural Centre after theend of the Werkstatt Bremen scheme is also relevant, even though the Centre wasnot, apparently, originally able to afford to take him on full-time outside theframework of that scheme.

46.
    Regarding whether the applicant's employment is to be viewed merely asa form of specific vocational training with a practical element, it is noteworthy thathe was engaged in tasks which were presumably of economic value to his employer. There does not appear to have been a formal vocational training component of aneducational or theoretical kind. (58) The primary method of serving the objectiveof integration in the labour force appears to be through experience of theworkplace. Furthermore, Germany stated that activities under the WerkstattBremen scheme, in the framework provided by Paragraph 19 of the BSHG, weredesigned to resemble as closely as possible ordinary employment conditions, so thatthere may have been no apparent difference in practice between the applicant'sposition and that of other workers.

47.
    In short, I would answer the question referred by the national court to theeffect that a Turkish worker, such as the applicant, who was legally employed asan odd-job man under a scheme established pursuant to Paragraph 19 of theBSHG funded preponderantly from the public purse should be considered a dulyregistered member of the labour force of the Member State in question if his workconstituted a genuine and effective economic activity, if it provided a genuinebenefit for the employer comparable to that of other employees exercising similaror comparable duties, and if the remuneration and other conditions werecomparable to those claimed by workers employed by the same employer or in thesame sector.

Conclusion

48.
    Therefore, I propose that the Court answer as follows the question referredby the Verwaltungsgericht der Freien Hansestadt Bremen:

A Turkish worker who is legally employed under a scheme established with a viewto improving the integration of the participants into working life which is fundedpreponderantly from the public purse should be considered to be duly registeredas belonging to the labour force of the Member State in question for the purposesof Article 6(1) of Decision No 1/80 of 19 September 1980 of the Council ofAssociation on the development of the Association if his work constitutes a genuineand effective economic activity, if it provides a genuine benefit for the employercomparable to that of other employees exercising similar or comparable duties, andif the remuneration and other conditions are comparable to those claimed byworkers employed by the same employer or in the same sector.

1: Original language: English.

2: —    Case C-36/96 [1997] ECR I-5143.

3: —    Article 12 of the Agreement establishing an Association between the European EconomicCommunity and Turkey, signed at Ankara on 12 September 1963 by the Republic ofTurkey and by the Member States of the EEC and the Community, and concluded,approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of23 December 1963, OJ 1973 C 113, p. 2 (hereinafter 'the Agreement‘).

4: —    The Council of Association is established by Article 6 of the Agreement; Article 22(1) ofthe Agreement confers upon it the power to take decisions in the cases provided for in theAgreement. Article 12 of the Agreement is supplemented by Article 36 of the AdditionalProtocol, signed on 23 November 1970, annexed to the Agreement and concluded byCouncil Regulation (EEC) No 2760/72 of 19 December 1972, OJ 1973 C 113, p. 17, whichprovides for progressive stages in securing freedom of movement for workers betweenMember States of the Community and Turkey and states that 'the Council of Associationshall decide on the rules necessary to that end‘.

5: —    Günaydin, loc. cit., paragraph 22.

6: —    Council of the European Communities, 'EEC-Turkey Association Agreement andProtocols and other basic texts‘ (Office for Official Publications of the EuropeanCommunities, Brussels & Luxembourg, 1992), p. 327.

7: —    Advocate General Elmer observed in Case C-434/93 Bozkurt v Staatssecretaris van Justitie[1995] ECR I-1475, hereinafter 'Bozkurt‘, paragraph 9 of his Opinion, that the differencesbetween Decision No 2/76 and the Decision 'are a mere matter of wording‘, though thelatter is 'more clearly drafted‘.

8: —    Danish: 'med tilknytning til det lovlige arbejdsmarked i en bestemt medlemsstat‘; German: 'der dem regulären Arbeitsmarkt eines Mitgliedstaats angehört‘; French: 'appartenant au marché régulier de l'emploi d'un État membre‘; Italian: 'inserito nelregolare mercato del lavoro di uno Stato membro‘; Dutch: 'die tot de legalearbeidsmarkt van een Lid-Staat behoort‘. The Decision has not yet been published in theother official languages of the Community.

9: —    Danish: 'lovlig beskæftigelse‘; German: 'ordnungsgemäße Beschäftigung‘; French: 'emploi régulier‘; Italian: 'regolare impiego‘; Dutch: 'legale arbeid‘.

10: —    Statement by the agent for Germany at the oral hearing.

11: —    Ibid.

12: —    The Ausländergesetz (Law on Foreigners) and the Arbeitsaufenthaltsverordnung(Residence for Work Regulations).

13: —    Loc. cit., paragraph 27.

14: —    This appears, from a reading of Germany's observations, to be based on a misconstructionof the BSHG, as this status is denied only if the participant in the employment schemecontinued to receive social assistance during this period, which did not occur in the presentcase.

15: —    Case 344/87 Bettray v Staatssecretaris van Justitie [1989] ECR 1621 (hereinafter 'Bettray‘),paragraphs 17 to 19.

16: —    Ibid., paragraphs 26 and 27.

17: —    It relies on the fact that Member States can determine the conditions on which Turkishnationals enter their labour markets: see Case C-237/91 Kus v Landeshauptstadt Wiesbaden[1992] ECR I-6781 (hereinafter 'Kus‘), paragraph 25.

18: —    Loc. cit., paragraphs 33 and 34.

19: —    Bozkurt, loc. cit., paragraph 20; Case C-171/95 Tetik v Land Berlin [1997] ECR I-329(hereinafter 'Tetik‘), paragraph 28.

20: —    Case C-192/89 Sevince [1990] ECR I-3461, paragraph 26; Case C-355/93 Eroglu v LandBaden-Württemberg [1994] ECR I-5113 (hereinafter 'Eroglu‘), paragraph 11; Günaydin,loc. cit., paragraph 24; Case C-98/96 Ertanir [1997] ECR I-5179, paragraph 24.

21: —    Bozkurt, loc. cit., paragraphs 14, 19 and 20; Tetik, loc. cit., paragraph 20; Günaydin, loc.cit., paragraphs 20 and 21; Ertanir, cited immediately above, paragraphs 20 and 21.

22: —    Kus, loc. cit., paragraph 25; Günaydin, loc. cit., paragraph 23; Ertanir, loc. cit.,paragraph 23.

23: —    See also the Opinion of Advocate General Darmon in Eroglu, loc. cit., paragraph 19.

24: —    Loc. cit., paragraph 30; repeated in Bozkurt, loc. cit., paragraph 26.

25: —    In a further example, Advocate General Darmon seems to have merged the second andthird criteria in Eroglu, loc. cit., paragraph 41 of his Opinion, where he stated that whatmatters, when deciding if a worker is duly registered as belonging to the labour force, 'isthat the worker's position should be ”in order” as regards the laws of the host MemberState‘, thus appearing to refer to the German text of Article 6(1) regarding legalemployment ('ordnungsgemäße Beschäftigung‘, emphasis added in both cases).

26: —    Ibid., paragraph 31.

27: —    Case C-285/95 Kol v Land Berlin [1997] ECR I-3069.

28: —    Case C-66/85 [1986] ECR 2121.

29: —    Case C-27/91 [1991] ECR I-5531, paragraph 7.

30: —    Günaydin, loc. cit., paragraph 31; see also Ertanir, loc. cit., paragraph 43. See also theOpinion of Advocate General Darmon in Eroglu, loc. cit., paragraph 30, where he usesessentially the same test to decide if a Turkish national is a worker.

31: —    Loc. cit.

32: —    Ibid., paragraph 5.

33: —    Ibid., paragraph 15.

34: —    Ibid., paragraphs 17 and 19.

35: —    See the Opinions of Advocate General Elmer in Bozkurt, loc. cit., paragraph 21, and inGünaydin, loc. cit., paragraph 24.

36: —    At various points in the original English text of this Opinion, I include references, inparenthesis, to the regular or legal labour force or employment market, in order to drawtogether the various nuances of the different language versions of the Decision.

37: —    Bozkurt, loc. cit., paragraphs 22 and 23; Günaydin, loc. cit., paragraph 29: Ertanir, loc. cit.,paragraph 39.

38: —    Sevince, cited and discussed above, paragraph 30.

39: —    This qualification is also found in the Italian version of the Decision.

40: —    Loc. cit., paragraph 33.

41: —    See the passage cited below from Tetik, loc. cit., at paragraph 32 of this Opinion.

42: —    Loc. cit., paragraph 38.

43: —    Ibid., paragraph 36, to be read in the light of paragraph 37 approving this argument byGermany.

44: —    Ibid., paragraph 39.

45: —    Loc. cit., paragraph 40.

46: —    Ibid., paragraphs 41 and 42; see also paragraph 46.

47: —    Loc. cit., paragraphs 17 and 18 of his Opinion.

48: —    Ibid., paragraph 22.

49: —    Ibid., paragraph 23.

50: —    Ibid., paragraph 31. It is clear that this does not purport to be a complete enunciation ofthe test of being duly registered as belonging to the (regular) labour force, in so far as itmay suffice, in a particular case, for a Turkish worker to be seeking such work thoughtemporarily unemployed.

51: —    See the first sentence of paragraph 33, as well as the statement in paragraph 32 thatMember States could restrict Turkish nationals' rights to enter and reside in their territoryto the pursuit of specific vocational training, in particular in the context of a contract ofapprenticeship.

52: —    Ibid., paragraph 33.

53: —    Loc. cit., paragraph 21. The trainee at issue in Le Manoir, loc. cit., was deemed to be aworker even though she did not receive the minimum index-linked wage.

54: —    Günaydin, loc. cit., paragraph 32.

55: —    Ibid., paragraph 34.

56: —    The reference in the English version of the judgment to employment 'on the basis ofnational legislation derogating from Community law‘ appears to be a mistranslation of theoriginal German reference to a person who is not employed 'aufgrund einer nationalenSonderregelung‘, which was rendered in French as employment 'sur la base d'uneréglementation nationale dérogatoire au droit commun‘.

57: —    Ertanir, loc. cit., paragraphs 42 to 44.

58: —    See the Opinion of Advocate General Elmer in Günaydin, loc. cit., paragraph 18.