LAW REPORT: Turkish worker had right of residence while seeking work

LAW REPORT: 5 February 1997

Tetik v Land Berlin; European Court of Justice; 23 January 1997

A Turkish worker who had been legally employed for more than four years in a European Union member state enjoyed a right of residence in that state enabling him, if he decided voluntarily to leave his employment, to spend a reasonable period seeking new employment, provided he continued to be registered as belonging to that state's labour force and complied with the relevant requirements of its employment legislation.

The European Court of Justice so ruled on a reference by the German Bundesverwaltungsgericht in the case of Recep Tetik, a Turkish national.

Mr Tetik had been legally employed as a seaman on various German ships, obtaining from the German authorities successive residence permits, each for a specified period and limited to employment in shipping. His last permit was valid until 4 August 1988 and stated that it would expire on cessation of his employment in German shipping.

On 20 July 1988, Mr Tetik left his job as a seaman. On 1 August, he moved to Berlin and applied for an unlimited residence permit for the purpose of engaging in gainful employment on land. That application was refused by the competent authorities of the Land Berlin. The legality of that decision was confirmed by the Verwaltungsgericht and Oberverwaltungsgericht Berlin.

On Mr Tetik's appeal, the Bundesverwaltungsgericht referred the matter to the European Court of Justice for a ruling on the intepretation and effect on this case of article 6 of Decision No 1/80 of the Council of the EEC/Turkey Association.

The Council was established under the Agreement establishing an Association between the European Community and Turkey, signed at Ankara on 12 September 1963, and concluded on behalf othe Community by Council Decision 64/732/ EEC of 23 December 1963.

According to that agreement, "the contracting parties agree to be guided by articles 48, 49 and 50 of the [EEC Treaty] for the purpose of progressively securing the freedom of movement for workers between them".

Decision No 1/80 did not give Turkish workers full freedom of movement within the Community but it did confer certain rights on Turkish workers in a member state which they had lawfully entered and in which they had been legally employed for a certain period.

The court had consistently held that the rights which article 6 of Decision No 1/80 conferred on a Turkish worker in regard to employment necessarily implied the existence of a right of residence for the person concerned. Article 6 had direct effect in the member states and Turkish nationals who satisfied its conditions might therefore rely on it before national courts.

The situation at issue in this case was that of a Turkish worker who, having been legally employed for almost eight years in a member state, enjoyed "free access . . . to any paid employment of his choice" in that state, pursuant to the third indent of article 6(1).

Under that provision he had not only the right to respond to a prior offer of employment but also the unconditional right to seek and take up any employment he chose, without any possibility of this being subject to priority for workers from the member states.

The court had already held, with regard to the free movement of workers who were nationals of member states, that article 48 of the EEC Treaty entailed the right for such workers to reside in another member state for the purpose of seeking employment there.

In accordance with the EEC/Turkey Agreement, the principles enshrined in the Treaty provisions on the free movement of workers who were nationals of member states must, so far as possible, inform the treatment of Turkish workers who enjoyed the rights conferred by Decision No 1/80.

In order to give full effect to article 6, a Turkish worker must, after at least four years of legal employment in a member state, be entitled to reside in that state for a reasonable period while seeking new employment, since his right of free access to any paid employment of his choice within the meaning of that provision would otherwise be deprived of substance.

It was for the national authorities or courts of the host member state to determine how long that reasonable period should be, but it must be sufficient not to jeopardise the Turkish worker's prospects of finding new employement.

Paul Magrath, Barrister

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