Language of document : ECLI:EU:C:1998:568

JUDGMENT OF THE COURT (Sixth Chamber)

26 November 1998 (1)

(EEC-Turkey Association Agreement — Freedom of movement for workers —Article 6(1) of Decision No 1/80 of the Association Council — Scope — Turkishnational with a fixed-term employment contract under a programme financed bythe public authorities and designed to assist the integration of personsdependent on social assistance into the labour market)

In Case C-1/97,

REFERENCE to the Court under Article 177 of the EC Treaty by theVerwaltungsgericht der Freien Hansestadt Bremen (Germany) for a preliminaryruling in the proceedings pending before that court between

Mehmet Birden

and

Stadtgemeinde Bremen,

on the interpretation of Article 6(1) of Decision No 1/80 of 19 September 1980 onthe development of the Association, adopted by the Association Council establishedby the Association Agreement between the European Economic Community andTurkey,

THE COURT (Sixth Chamber),

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

Advocate General: N. Fennelly,


Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

—    Mr Birden, by J. Kempas, Rechtsanwalt, Bremen,

—    the German Government, by E. Röder and B. Kloke, Ministerialrat andOberregierungsrat respectively, in the Federal Ministry of Economic Affairs,acting as Agents,

—    the Greek Government, by A. Samoni-Rantou, special assistant legal adviserin the Community Legal Affairs Department of the Ministry of ForeignAffairs, and by L. Pnevmatikou, specialist technical adviser in thatdepartment, acting as Agents,

—    the French Government, by K. Rispal-Bellanger, Head of Subdirectorate inthe Legal Affairs Directorate of the Ministry of Foreign Affairs, and C.Chavance, Foreign Affairs Secretary in the same Directorate, acting asAgents,

—    the Commission of the European Communities, by P.J. Kuijper, LegalAdviser, acting as Agent, and by P. Gilsdorf, Rechtsanwalt, Hamburg andBrussels,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Birden, represented by J. Kempas, of theGerman Government, represented by C.-D. Quassowski, Regierungsdirektor in theFederal Ministry of Economic Affairs, acting as Agent, of the Greek Government, represented by A. Samoni-Rantou and L. Pnevmatikou, and of the Commission,represented by P. Gilsdorf, at the hearing on 2 April 1998,

after hearing the Opinion of the Advocate General at the sitting on 28 May 1998,

gives the following

Judgment

1.
    By order of 9 December 1996, received at the Court on 6 January 1997, theVerwaltungsgericht der Freien Hansestadt Bremen (Administrative Court of theFree Hanseatic City of Bremen) referred to the Court for a preliminary rulingunder Article 177 of the EC Treaty a question on the interpretation of Article 6(1)of Decision No 1/80 of the Association Council of 19 September 1980 on thedevelopment of the Association (hereinafter 'Decision No 1/80‘). The AssociationCouncil was set up by the Agreement establishing an Association between theEuropean Economic Community and Turkey, signed at Ankara on 12 September1963 by the Republic of Turkey and by the Member States of the EEC and theCommunity, and concluded, approved and confirmed on behalf of the Communityby Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113, p. 2).

2.
    The question referred to the Court was raised in proceedings between Mr Birden,a Turkish national, and the Stadtgemeinde Bremen (City of Bremen) concerningthe latter's refusal to extend Mr Birden's permit to reside in Germany.

Background to the dispute and legal framework

3.
    According to the file on the case in the main proceedings, Mr Birden waspermitted to enter Germany in 1990, where he married a German national in 1992.

4.
    As a result of that marriage, he was granted a residence permit by that State, validuntil June 1995, and an unconditional work permit of unlimited duration.

5.
    Having failed to find work in Germany, however, Mr Birden initially received socialassistance pursuant to the Bundessozialhilfegesetz) (Federal Law on SocialAssistance, hereinafter 'the BSHG‘).

6.
    Paragraph 1 of the BSHG provides:

'(1)    Social assistance comprises the grant of maintenance assistance and theassistance given to persons in particular circumstances.

(2)    The function of social assistance is to permit the beneficiary to live a lifecompatible with human dignity. To that effect, wherever possible, theassistance should place the beneficiary in a position to maintain himself; inthat respect, the beneficiary of the assistance must cooperate to the best ofhis ability.‘

7.
    According to paragraph 19 of the BSHG,

'(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 work

opportunities 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.

    ...‘

8.
    On 3 January 1994, Mr Birden entered into a contract of employment as a semi-skilled odd-job man with the Kulturzentrum (Cultural Centre) Lagerhaus Bremen-Ostertor eV from 1 January 1994 to 31 December 1994. His net pay wasDM 2 155.70 per month, after deduction of income tax, the solidarity surcharge,and contributions for health, care, pension and unemployment insurance; he wasrequired to work 38.5 hours per week.

9.
    That employment relationship was subsequently extended under the sameconditions until 31 December 1995.

10.
    For the duration of those contracts, Mr Birden did not receive any social assistancein the form of maintenance payments.

11.
    Those employment contracts were wholly funded by the Werkstatt Bremen(Workshop Bremen), an office of the Senator für Gesundheit, Jugend und Soziales(Senator for Health, Youth and Social Affairs) of the Freien Hansestadt Bremen,under a programme adopted by the Senate of that city and intended, in accordancewith paragraph 19(2) of the BSHG, to provide paid employment, on a temporarybasis, to recipients of social assistance in order to enable, in particular, unemployedpersons with no entitlement to unemployment benefits to enter or re-enter thegeneral labour market. That period of one or two years' work, which is subject topayment of compulsory social insurance contributions, thus affords participants inthe programme the right to draw social security benefits or the possibility ofplacement on a work creation scheme.

12.
    On 10 June 1995, Mr Birden's marriage was dissolved.

13.
    On 15 August 1995 the competent authorities then refused to extend Mr Birden'spermit to reside in Germany, on the grounds that, under national law, such anextension was no longer possible following his divorce and that he was not dulyregistered as belonging to the labour force of a Member State, for the purposes ofArticle 6(1) of Decision No 1/80, because the contracts of employment entered intoon the basis of the BSHG were only temporary, their sole purpose was to enablea limited group of persons, in this case recipients of social assistance, to integrateinto working life, they were funded by the public authorities and related to publicutility work for a public employer not in competition with undertakings in thegeneral labour market.

14.
    Mr Birden considered that he was entitled to an extension of his residence permitpursuant to the first indent of Article 6(1) of Decision No 1/80, on the ground thathe had been in paid employment for more than one year with the same employer,and brought proceedings before the Verwaltungsgericht der Freien HansestadtBremen. Mr Birden stated in that respect that a new contract of employment,entered into with the same Kulturzentrum Lagerhaus Bremen-Ostertor eV for anindefinite period from 1 January 1996 and relating to a caretaker's post had notcome into effect solely because he had been unable to provide his employer witha valid residence permit.

15.
    The national court considered that the contested decision complied with Germanlaw. None the less, it raised the question whether a solution more favourable toMr Birden might not be derived from Article 6(1) of Decision No 1/80.

16.
    That provision, which appears in Chapter II (Social provisions), Section 1(Questions relating to employment and the free movement of workers), is wordedas follows:

'Subject to Article 7 on free access to employment for members of his family, aTurkish 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 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.‘

17.
    Although it pointed out that, at the time his residence permit expired, Mr Birdenwas in legal employment, held a valid work permit, had been in paid employmentfor more than one year with the same employer and had a job available, theVerwaltungsgericht der Freien Hansestadt Bremen none the less expressed doubtsas to whether he was duly registered as belonging to the labour force of a MemberState within the meaning of Article 6(1) of Decision No 1/80, since the activityperformed by him in 1994 and 1995 had been supported by the public authoritieswithin the framework of paragraph 19(2) of the BSHG.

The question submitted for a preliminary ruling

18.
    The Verwaltungsgericht der Freien Hansestadt Bremen therefore considered thatthe resolution of the dispute required an interpretation of that provision ofDecision No 1/80 and stayed proceedings in order to refer the following questionto the Court for a preliminary ruling:

'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?‘

19.
    The first point to be noted is that since the judgment in Case C-192/89 Sevince vStaatssecretaris van Justitie [1990] ECR I-3461, paragraph 26, the Court hasconsistently held that Article 6(1) of Decision No 1/80 has direct effect in theMember States and that Turkish nationals who satisfy its conditions may thereforerely directly on the rights which the three indents of that provision confer on themprogressively, according to the duration of their employment in the host MemberState (see, most recently, Case C-36/96 Günaydin v Freistaat Bayern [1997]ECR I-5143, paragraph 24, and Case C-98/96 Ertanir v Land Hessen [1997] ECRI-5179, paragraph 24).

20.
    Second, it should be borne in mind that the Court has consistently held that therights which that provision confers on Turkish workers in regard to employmentnecessarily imply the existence of a corresponding right of residence for the personconcerned, since otherwise the right of access to the labour market and the rightto work as an employed person would be deprived of all effect (see, most recently,Günaydin, paragraph 26, and Ertanir, paragraph 26).

21.
    Third, it should be noted that, as is apparent from the actual wording of Article6(1) of Decision No 1/80, that provision requires the person concerned to be aTurkish worker in a Member State, to be duly registered as belonging to the labourforce of the host Member State and to have been in legal employment there fora certain period.

22.
    In order to give a useful reply to the national court to enable it to assess therelevance of the arguments relied on by the defendant in order to deny Mr Birdenthe benefit of the rights conferred by Decision No 1/80, those three concepts shouldbe examined in turn.

The concept of worker

23.
    As regards the first of those concepts, it should be recalled at the outset that theCourt has consistently concluded from the wording of Article 12 of the EEC-TurkeyAssociation Agreement and Article 36 of the additional protocol, signed on23 November 1970, annexed to that Agreement and concluded by CouncilRegulation (EEC) No 2760/72 of 19 December 1972 (OJ 1973 C 113, p. 18), aswell as from the objective of Decision No 1/80, that the principles enshrined inArticles 48, 49 and 50 of the EC Treaty must be extended, so far as possible, toTurkish workers who enjoy the rights conferred by Decision No 1/80 (see, to thateffect, Case C-434/93 Bozkurt v Staatssecretaris van Justitie [1995] ECR I-1475,paragraphs 14, 19 and 20; Case C-171/95 Tetik v Land Berlin [1997] ECR I-329,paragraphs 20 and 28, and the judgments in Günaydin, paragraph 21, and Ertanir,paragraph 21).

24.
    Reference should consequently be made to the interpretation of the concept ofworker under Community law for the purposes of determining the scope of thesame concept employed in Article 6(1) of Decision No 1/80.

25.
    In that respect, the Court has consistently held that the concept of worker has aspecific Community meaning and must not be interpreted narrowly. It must bedefined in accordance with objective criteria which distinguish the employmentrelationship by reference to the rights and duties of the persons concerned. Inorder to be treated as a worker, a person must pursue an activity which is effectiveand genuine, to the exclusion of activities on such a small scale as to be regardedas purely marginal and ancillary. The essential feature of an employmentrelationship is that for a certain period of time a person performs services for andunder the direction of another person in return for which he receives remuneration. By contrast, the nature of the legal relationship between the worker and theemployer is not decisive for the purposes of determining whether a person is aworker within the meaning of Community law (see, as regards Article 48 of theTreaty, in particular, Case 66/85 Lawrie-Blum v Land Baden-Württemberg [1986]ECR 2121, paragraphs 16 and 17; Case 197/86 Brown v Secretary of State forScotland [1988] ECR 3205, paragraph 21; Case C-357/89 Raulin [1992] ECR I-1027,paragraph 10; and, as regards Article 6(1) of Decision No 1/80, Günaydin,paragraph 31, and Ertanir, paragraph 43).

26.
    A Turkish national such as Mr Birden, who is employed on the basis of a law suchas the BSHG, performs, as a subordinate, services for his employer in return for

which he receives remuneration, thus satisfying the essential criteria of theemployment relationship.

27.
    Since Mr Birden worked 38.5 hours per week and received net pay of DM 2 155.70per month, in keeping, moreover, with the collective agreement applicable toworkers in the Member State concerned, it cannot be argued that he pursued anactivity which was purely marginal and ancillary.

28.
    That interpretation is not altered by the fact that the remuneration of the personconcerned is provided using public funds since, by analogy with the case-lawrelating to Article 48 of the Treaty, neither the origin of the funds from which theremuneration is paid, nor the 'sui generis‘ nature of the employment relationshipunder national law and the level of productivity of the person concerned can haveany consequence in regard to whether or not the person is to be regarded as aworker (see, for example, Case 344/87 Bettray [1989] ECR 1621, paragraphs 15 and16).

29.
    Contrary to the assertions of the German Government, that conclusion is also notaffected by the fact that, in Bettray, the Court held that work which constitutesmerely a means of rehabilitation or reintegration for the persons concerned cannotbe regarded as a genuine and effective activity and concluded that such personscannot be regarded as workers for the purposes of Community law (paragraphs 17to 20).

30.
    As the Commission pointed out in its observations and the Advocate Generalstated at paragraphs 25 and 45 of his Opinion, the situation of a person such as theapplicant in the main proceedings differs considerably from that at issue in Bettray. It is thus apparent from the reasoning of that judgment that that case concerneda person who, by reason of his addiction to drugs, had been recruited on the basisof a national law intended to provide work for persons who, for an indefiniteperiod, are unable, by reason of circumstances related to their situation, to workunder normal conditions; furthermore, the person concerned had not been selectedon the basis of his ability to perform a certain activity but, to the contrary, hadperformed activities adapted to his physical and mental possibilities, in theframework of undertakings or work associations created specifically in order toachieve a social objective.

31.
    Under those circumstances, the conclusion reached by the Court in Bettray,according to which a person employed under a scheme such as that at issue in thatcase could not, on that basis alone, be regarded as a worker and the fact that thatconclusion does not follow the general trend of the case-law concerning theinterpretation of that concept in Community law (see paragraph 25 above) can beexplained only by the particular characteristics of that case and it cannot thereforebe applied to a situation such as that of the applicant in the main proceedings, thefeatures of which are not comparable.

32.
    A person such as Mr Birden must consequently be regarded as a worker within themeaning of Article 6(1) of Decision No 1/80.

The concept of being duly registered as belonging to the labour force

33.
    Next, in order to ascertain whether such a worker, recruited under an employmentcontract relating to the pursuit of a genuine and effective economic activity, is dulyregistered as belonging to the labour force of a Member State for the purposes ofArticle 6(1) of Decision No 1/80, it must be determined, in accordance with settledcase-law (Bozkurt, paragraphs 22 and 23, Günaydin, paragraph 29, and Ertanir,paragraph 39), whether the legal relationship of employment of the personconcerned can be located within the territory of a Member State or retains asufficiently close link with that territory, taking account in particular of the placewhere the Turkish national was hired, the territory on or from which the paidactivity is pursued and the applicable national legislation in the field of employmentand social security law.

34.
    In a situation such as that of the applicant in the main proceedings, that conditionis undoubtedly satisfied, since the person concerned pursued a paid activity on theterritory of the Member State whose authorities had offered him employmentsubject to the legislation of that State, inter alia its employment and social securitylaw.

35.
    However, the German Government contended that the employment contractsentered into with Mr Birden on the basis of Paragraph 19 of the BSHG had beenlimited to the temporary pursuit of a paid activity with a named employer.

36.
    It should none the less be pointed out in that respect that, from January 1992, theTurkish worker concerned held a permit to work in Germany that was of unlimitedduration.

37.
    Furthermore, the Court has held that, although, as the law stands at present,Decision No 1/80 does not encroach upon the competence of the Member Statesto refuse Turkish nationals the right of entry into their territories and to take upfirst employment there and does not preclude those Member States, in principle,from regulating the conditions under which Turkish nationals work for up to oneyear as provided for in the first indent of Article 6(1) of that decision, none the lessthat provision cannot be construed as permitting a Member State to modifyunilaterally the scope of the system of gradual integration of Turkish workers in thehost State's labour force, by denying a worker who has been permitted to enter itsterritory and who has lawfully pursued a genuine and effective economic activityfor a continuous period of more than one year with the same employer the rightswhich the three indents of that provision confer on him progressively according tothe duration of his employment. The effect of such an interpretation would be to

render Decision No 1/80 meaningless and deprive it of any practical effect (see, tothat effect, the judgment in Günaydin, paragraphs 36 to 38).

38.
    Accordingly the Member States have no power to make conditional or restrict theapplication of the precise and unconditional rights which that decision grants toTurkish nationals who satisfy its conditions, particularly since the general andunconditional wording of Article 6(1) does not permit the Member States to restrictthe rights which that provision confers directly on Turkish workers (see, to thateffect, Günaydin, paragraphs 39 and 40).

39.
    In those circumstances, the fact that the employment contracts offered to theperson concerned by the public authorities were only temporary has no relevancefor the purposes of interpreting Article 6(1) of Decision No 1/80, in so far as theactivity pursued by him in the host Member State satisfies the conditions laid downby that provision.

40.
    The German Government also submitted that, even though Mr Birden received theusual remuneration, subject to income tax and the payment of compulsory socialsecurity contributions, for the work he performed and did not simultaneouslyreceive social assistance and although, in accordance with the BSHG, he was thusin an employment relationship with his employer for the purposes of Germanemployment law, the employment in question was none the less of an essentiallysocial nature. That employment consisted of public utility work which, in othercircumstances would not be carried out; it was financed by public funds andintended to improve the integration into working life of a limited group of personsunable to compete with most other job seekers. Those persons can therefore bedistinguished from workers as a whole and consequently do not belong to thegeneral labour force of the Member State concerned.

41.
    Likewise, the Commission submitted that a Turkish worker such as Mr Birdencannot be regarded as being duly registered as belonging to the labour force of aMember State within the meaning of Article 6(1) of Decision No 1/80, on theground that that provision lays down two separate conditions, namely that theworker be duly registered as belonging to the labour force and that he be in legalemployment. The first of those requirements should not be interpreted as referringto the lawful pursuit of a paid activity, since to do so would duplicate the second;it can therefore be regarded only as referring to the pursuit of a normal economicactivity on the labour market, as opposed to employment created artificially andfinanced by the public authorities such as that undertaken by Mr Birden.

42.
    In that respect, it should be recalled, first, that a migrant Turkish worker — theapplicant in the main proceedings — was recruited legally, within the terms of therequisite national permits and for a continuous period of two years, under anemployment contract which involved the pursuit of a genuine and effectiveeconomic activity for the same employer in return for the usual remuneration. Inthat respect, the legal position of a person such as Mr Birden is therefore no

different from that of migrant Turkish workers in general working on the territoryof the host Member State.

43.
    Second, in accordance with the case-law of the Court, the specific purpose whichthe paid employment in question sought to achieve is not capable of depriving aworker who satisfies the conditions laid down in Article 6(1) of the progressiverights which that provision confers upon him (Günaydin, paragraph 53).

44.
    It follows that a worker in Mr Birden's position, to whom a new contract ofemployment had been offered by his employer from 1 January 1996, was thereforeentitled, in accordance with the first indent of Article 6(1) of Decision No 1/80, tocontinue working for that employer until, after three years, he had the possibilityof changing employer within the same occupation pursuant to the second indent ofthat provision.

45.
    Furthermore, as regards a job offered under circumstances such as those in thepresent case, any other interpretation would be contradictory, in so far as it wouldamount to a refusal to maintain as a member of the labour force of the hostMember State a Turkish national to whom that State had applied nationallegislation specifically intended to integrate the persons concerned into the labourforce.

46.
    Furthermore, that national legislation itself provides that, in a situation such as that of the applicant in the main proceedings, who no longer received social assistanceduring the period in which he was pursuing an activity under the BSHG, the personconcerned is in an employment relationship with his employer for the purposes ofnational law.

47.
    Third, it is apparent from a comparison of the language versions in which DecisionNo 1/80 was drawn up that the Dutch ('die tot de legale arbeidsmarkt van een Lid-Staat behoort‘ and 'legale arbeid‘), Danish ('med tilknytning til det lovligearbejdsmarked i en bestemt medlemsstat‘ and 'lovlig beskæftigelse‘) and Turkish('... bir üye ülkenin yasal isgücü piyasasina nizamlara uygun bir surette ...‘ and'yasal calismadan‘) versions use the same adjective ('legal‘) to describe both thelabour force of a Member State and the employment pursued in that State. Although it does not use the same word in both respects, the English version ('dulyregistered as belonging to the labour force of a Member State‘ and 'legalemployment‘) undeniably has the same meaning.

48.
    It follows from those versions that entitlement to the rights enshrined in the threeindents of Article 6(1) is subject to the condition that the worker complied with thelegislation of the host Member State governing entry to its territory and pursuit ofemployment.

49.
    There is no doubt that a migrant Turkish worker such as Mr Birden satisfies thatrequirement, since it is not disputed that he legally entered the territory of theMember State concerned and occupied a post organised and financed by the publicauthorities of that State.

50.
    Both the French ('appartenant au marché régulier de l'emploi d'un État membre‘and 'emploi régulier‘) and Italian ('inserito nel regolare mercato del lavoro di unoStato membro‘ and 'regolare impiego‘) versions use the word 'regular‘ twice. Finally, the German version ('der dem regulären Arbeitsmarkt eines Mitgliedstaatsangehört‘ and 'ordnungsgemässer Beschäftigung‘) is less clear, in so far as it usestwo different expressions, the first of which corresponds to 'regular‘ and thesecond more closely to 'legal‘. However, those versions are clearly open to aninterpretation consistent with that resulting from the other language versions, sincethe term 'regular‘ can undoubtedly be understood, for the purposes of the uniformapplication of Community law, as a synonym for 'legal‘.

51.
    Consequently, the concept of 'being duly registered as belonging to the labourforce‘ must be regarded as applying to all workers who have complied with therequirements laid down by law and regulation in the Member State concerned andare thus entitled to pursue an occupation in its territory. By contrast, contrary tothe assertions of the German Government and the Commission, it cannot beinterpreted as applying to the labour market in general as opposed to a specificmarket with a social objective supported by the public authorities.

52.
    That interpretation is, furthermore, confirmed by the objective of Decision No 1/80which, according to the third recital in its preamble, seeks to improve, in the socialfield, the treatment accorded to workers and members of their families in relationto the arrangements introduced by Decision No 2/76 which the Council ofAssociation set up by the Agreement establishing an Association between theEuropean Economic Community and Turkey adopted on 20 December 1976. Theprovisions of Section 1 of Chapter II of Decision No 1/80, of which Article 6 formspart, thus constitute a further stage in securing freedom of movement for workerson the basis of Articles 48, 49 and 50 of the Treaty (see Bozkurt, paragraphs 14, 19and 20, Tetik, paragraph 20, Günaydin, paragraphs 20 and 21, and Ertanir,paragraphs 20 and 21).

53.
    In view of that objective and the fact that Decision No 2/76 refers only to legalemployment, the concept of being duly registered as belonging to the labour forceof a Member State, used in Decision No 1/80 alongside that of legal employment,cannot be interpreted as further restricting the rights derived by workers fromArticle 6(1) of Decision No 1/80 on the ground that it sets out an additionalcondition, different from the condition that the person concerned be in legalemployment for a certain period. To the contrary, that newly-introduced conceptmerely clarifies the requirement of the same nature already used in Decision No2/76.

54.
    A Turkish worker such as Mr Birden must consequently be regarded as being dulyregistered as belonging to the labour force of a Member State for the purposes ofArticle 6(1) of Decision No 1/80.

The concept of legal employment

55.
    Finally as regards the question whether such a worker was in legal employment inthe host Member State for the purposes of Article 6(1) of Decision No 1/80, itshould be recalled that, according to settled case-law (judgments in Sevince,paragraph 30, Bozkurt, paragraph 26, and Case C-237/91 Kus v LandeshauptstadtWiesbaden [1992] ECR I-6781, paragraphs 12 and 22), the legality of theemployment presupposes a stable and secure situation as a member of the labourforce of a Member State and, by virtue of this, implies the existence of anundisputed right of residence.

56.
    In Sevince, paragraph 31, the Court held that a Turkish worker was not in a stableand secure situation as a member of the labour force of a Member State during aperiod in which a decision refusing him the right of residence was suspended as aconsequence of his appeal against that decision and he obtained authorisation, ona provisional basis pending the outcome of the dispute, to reside and be employedin the Member State in question.

57.
    Likewise, in Kus, paragraph 13, the Court held that a worker who has a right ofresidence only as a result of the effect of national legislation allowing a person toreside in the host country during the procedure for granting a residence permitdoes not satisfy that condition of stability, on the ground that the person concernedhad obtained the rights to reside and work in that country on a provisional basisonly pending a final decision on his right of residence.

58.
    The Court considered that periods during which the person concerned wasemployed could not be regarded as legal employment for the purposes of Article6(1) of Decision No 1/80 so long as it was not definitely established that, duringthose periods, the worker had a legal right of residence. Otherwise, a judicialdecision finally refusing him that right would be rendered nugatory and he wouldthus have been enabled to acquire the rights provided for in Article 6(1) during aperiod when he did not fulfil the conditions laid down in that provision (judgmentin Kus, paragraph 16).

59.
    Finally, in Case C-285/95 Kol v Land Berlin [1997] ECR I-3069, paragraph 27, theCourt held that periods in which a Turkish national was employed under aresidence permit obtained only by means of fraudulent conduct on his part, whichled to a conviction, were not based on a stable situation and such employmentcould not be regarded as having been secure in view of the fact that, during theperiods in question, the person concerned was not legally entitled to a residencepermit.

60.
    By contrast, in a case such as this, it must be pointed out that the Turkish worker'sright of residence in the host Member State was never challenged and the personconcerned was not in a precarious situation that could be called into question atany time: in January 1992, he had obtained a permit to reside in Germany until 29June 1995 together with an unconditional work permit of unlimited duration andfor an uninterrupted period from 1 January 1994 to 31 December 1995 he hadlawfully pursued a genuine and effective activity for the same employer, so that hislegal position was guaranteed for that whole period.

61.
    Such a worker must consequently be regarded as having been in legal employmentin the Member State concerned for the purposes of Article 6(1) of Decision No1/80, so that, in so far as he satisfies all the conditions of that provision, he mayrely on the rights conferred by it.

62.
    In that respect, it should be pointed out that it is not disputed that when hisemployment contract expired on 31 December 1995, Mr Birden had entered intoa new contract of employment, with the same employer, for an indefinite periodfrom 1 January 1996. He therefore had a job available with the same employerwithin the meaning of the first indent of Article 6(1) of Decision No 1/80; the onlyreason that contract could not be put into effect was that he had not obtained anextension of his residence permit in the host Member State.

63.
    The foregoing interpretation cannot be affected by the fact that the twoemployment contracts awarded to Mr Birden in 1994 and in 1995 were for alimited period pursuant to the national legislation.

64.
    If the temporary nature of the employment contract was sufficient to raise doubtsas to whether the employment of the person concerned was in fact legal, MemberStates would be able wrongly to deprive Turkish migrant workers whom theypermitted to enter their territory and who have lawfully pursued an economicactivity there for an uninterrupted period of at least one year of rights on whichthey are entitled to rely directly under Article 6(1) of Decision No 1/80 (seeparagraphs 37 to 39) above.

65.
    Likewise, the fact that Mr Birden's residence permit was issued to him only for afixed period is not relevant, since it is settled case-law that the rights conferred onTurkish workers by Article 6(1) of Decision No 1/80 are accorded irrespective ofwhether or not the authorities of the host Member State have issued a specificadministrative document, such as a work permit or residence permit (see, to thateffect, the judgments in Bozkurt, paragraphs 29 and 30, Günaydin, paragraph 49,and Ertanir, paragraph 55).

66.
    Furthermore, the fact that, in a case such as the present, work and residencepermits were granted to the worker only after his marriage to a German nationaldoes not affect that interpretation, even though the marriage was subsequentlydissolved.

67.
    According to settled case-law, Article 6(1) of Decision No 1/80 does not make therecognition of the rights it confers on Turkish workers subject to any conditionconnected with the reason the right to enter, work or reside was initially granted(Kus, paragraphs 21 to 23, Günaydin, paragraph 52, and, by analogy, Case C-355/93Eroglu v Land Baden-Württemberg [1994] ECR I-5113, paragraph 22).

68.
    A Turkish worker such as Mr Birden must consequently be regarded as havingbeen in legal employment in the host Member State for the purposes of Article6(1) of Decision No 1/80.

69.
    In view of all the foregoing considerations, the answer to the question referred bythe Verwaltungsgericht der Freien Hansestadt Bremen must be that Article 6(1)of Decision No 1/80 is to be interpreted as follows:

A Turkish national who has lawfully pursued a genuine and effective economicactivity in a Member State under an unconditional work permit for anuninterrupted period of more than one year for the same employer, in return forwhich he received the usual remuneration, is a worker duly registered as belongingto the labour force of that Member State and in legal employment there within themeaning of that provision.

In so far as he has available a job with the same employer, a Turkish national inthat situation is thus entitled to demand the renewal of his residence permit in thehost Member State, even if, pursuant to the legislation of that Member State, theactivity pursued by him was restricted to a limited group of persons, was intendedto facilitate their integration into working life and was financed by public funds.

Costs

70.
    The costs incurred by the German, Greek and French Governments, and by theCommission, which have submitted observations to the Court, are not recoverable.Since these proceedings are, for the parties to the main proceedings, a step in theproceedings pending before the national court, the decision on costs is a matter forthat court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the question referred to it by the Verwaltungsgericht der FreienHansestadt Bremen, by order of 9 December 1996, hereby rules:

Article 6(1) of Decision No 1/80 of 19 September 1980 on the development of theAssociation, adopted by the Association Council established by the AssociationAgreement between the European Economic Community and Turkey is to beinterpreted as follows:

A Turkish national who has lawfully pursued a genuine and effective economicactivity in a Member State under an unconditional work permit for anuninterrupted period of more than one year for the same employer, in return forwhich he received the usual remuneration, is a worker duly registered as belongingto the labour force of that Member State and in legal employment there within themeaning of that provision.

In so far as he has available a job with the same employer, a Turkish national inthat situation is thus entitled to demand the renewal of his residence permit in thehost Member State, even if, pursuant to the legislation of that Member State, theactivity pursued by him was restricted to a limited group of persons, was intendedto facilitate their integration into working life and was financed by public funds.

Kapteyn
Mancini

Murray Ragnemalm

Schintgen

Delivered in open court in Luxembourg on 26 November 1998.

R. Grass

P.J.G. Kapteyn

Registrar

President of the Sixth Chamber


1: Language of the case: German.