Decision 1/80 of the EEC-Turkey Association Council

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Through the decision 1/80 of the Association Council of the EEC-Turkey on the development of the association of September 19, 1980 - hereinafter referred to as ARB 1/80 - the right of residence of Turkish workers and their family members in the member states of the European Union is based on European law been asked. Although the wording of ARB 1/80 only regulates the extension of the work permit of Turkish employees in the member states of the European Union, it has also gained importance in terms of residence law through the case law of the ECJ.

Historical background to the decision

ARB 1/80 goes back to the EEC-Turkey Association Agreement of September 12, 1963 . The agreement provides for a strengthening of trade and economic relations through the gradual establishment of a customs union , the free movement of workers , the freedom of establishment and the free movement of services with the ultimate goal of Turkey becoming a full member of the European Union. To achieve these goals, an Association Council was set up, which is empowered to take accompanying decisions. Decision No. 1/80 deals with promoting the integration of Turkish workers who are already resident in a member state of the European Union.

Beneficiaries

The ARB 1/80 regulates the legal relationships of Turkish employees , i.e. people who are employed and receive remuneration for this. Independent entrepreneurs are not recorded . Turkish employees who still live in Turkey and would like to work in Germany or another member state of the European Union are also not recorded, because the ARB 1/80 is only aimed at Turkish employees who are already legally living in this member state and who are permitted to enter and residence has been permitted. The ARB 1/80 therefore does not grant the right to free entry .

If the Turkish employee has been employed by the same employer for one year, he is entitled to an extension of his work permit with the same employer (Art. 6 Para. 1 ARB 1/80 - first indent). After three years of regular employment, the Turkish employee is entitled to an extension of his work permit for a job in the same occupation (Art. 6 Para. 1 ARB 1/80 - second indent). So, after the third year of employment, he can move to a company that is active in the same industry. After four years of regular employment, the Turkish employee has free access to any wage or salary employment of his choice (Art. 6 Para. 1 ARB 1/80 - third indent). He can therefore apply for any vacancy and thus enjoys freedom of movement within the Member State of the European Union in which he lives, but not beyond.

Extension of the scope of validity in terms of residence law since the Sevince decision

Until the beginning of the 1990s, ARB 1/80 had no notable significance in German immigration law, because a foreign employee in Germany could not do anything with a work permit alone. According to the law applicable at the time, he also always required a residence permit that allowed him to take up employment in accordance with the work permit of the employment office (today: Employment Agency ). The residence permit was premature for the work permit, so a work permit without a residence permit was worthless.

In June 1989 a Dutch court submitted to the ECJ et al. a. the question is whether ARB 1/80 as European law is accessible to judicial review by the ECJ, whether it applies directly in the member states of the Union and whether the right to a work permit also implies residence law. In its first judgment on ARB 1/80, the Sevince decision, the ECJ affirmed all three questions and led u. a. without a right of residence, ARB 1/80 will be deprived of its practical effectiveness, which is why there is also a right of residence in the event of a claim to a work permit.

This decision and a large number of other decisions that followed revolutionized German immigration law. Overnight, as it were, the status of many Turkish workers in Germany improved considerably. Employment of at least one year in the event of unemployment no longer only granted a certain preferential position at the employment office, but above all gave a permanent right of residence that could no longer be withdrawn by national legislation. The unemployed Turkish worker could no longer be asked to leave his home country without further ado because he was given a right of residence to look for work that was detached from his job.

It was only more than 10 years later that the German legislature drew the necessary conclusions from the case law of the ECJ and, with the entry into force of the Residence Act on January 1, 2005, abandoned the previously existing separation of residence permit procedures at the immigration authorities and work permit procedures at the employment agency . Since then, the immigration authorities have been deciding both on the right of residence and on the permit to pursue employment in an administrative act . The separate work permit no longer applies; It has been replaced by an internal authority right of the Employment Agency to participate in foreign authority proceedings ( Section 39 of the Residence Act).

Temporal extent of employment

Turkish workers who belong to the regular labor market of a Member State are protected by ARB 1/80 . In this sense, an employee is someone who carries out an actual and genuine activity, with only those activities being disregarded that are completely subordinate and insignificant due to their small scope. The essential feature of the employment relationship is that someone, during a certain period of time, performs services for another according to his instructions, for which he receives remuneration in return . Regular labor market refers to all employees who comply with the laws and regulations of the host Member State and thus have the right to work in its territory.

This raises the question of how extensive an employment has to be in order for it to develop into an employee status. At the same time, the question arises whether the employee status can also be granted to persons who originally did not come to the country to pursue gainful employment (e.g. as students or asylum seekers ) or who only came to work that could only be carried out for a limited period under German immigration law ( e.g. as a specialty chef ).

On the question of fixed-term employment relationships , the ECJ ruled that the original reason for employment is meaningless for the question of a claim under ARB 1/80. Anyone who fulfills one of the eligibility levels is allowed to stay, even if the immigration authorities only granted temporary employment from the outset and made it clear to the Turkish employee that an extension of the right of residence beyond the time limit was excluded.

In principle, students can also have employee status; However, taking up employment in Germany during a study visit was and is only permitted to a limited extent (up to 120 full working days or 240 half working days per calendar year). The legal situation here has not yet been conclusively clarified. The ECJ has accepted the activities of au pairs and students who work alongside their studies if their work is at least “half a job” (approx. 15-25 hours per week). Whether also shorter activities - also outside the student status, e.g. For example, a job based on 400 euros for a few hours a week is sufficient, the ECJ expressly left open in the Genc case and pointed out that the assessment of detailed questions on the legal principles it has established is a matter for the national courts. The only thing that has been clarified by the ECJ is that the original reason for entry (as a student, as an au pair, as an asylum seeker) does not preclude the application of ARB 1/80.

In filling the ECJ ruling dated February 2010 in Case Genc both have the Berlin Administrative Court and the Higher Administrative Court of Berlin-Brandenburg woman Genc given rights, and awarded her an association legal right of residence in spite of low employment. The Federal Administrative Court appealed against this confirmed the decisions of the lower courts and decided in April 2012 for German administrative practice that an employee within the meaning of Art. 6 Para. 1 ARB 1/80 is also someone who has marginal employment if an overall assessment shows that it is a real and actual activity that is not entirely subordinate and immaterial. In the decided case of Ms. Genc , it was about a job as a cleaning worker , which was carried out over several years initially with 5 ½ hours, later with 10 hours a week.

Employment interruptions during the qualifying phase of the first four years

The ARB 1/80 has expressly regulated only a few cases that could prevent the fulfillment of the aforementioned requirements: Annual leave and absence due to maternity, work-related accident or short illness are equated with periods of regular employment. The periods of involuntary unemployment , which have been duly established by the competent authorities, as well as absence due to long illness are not equated with periods of regular employment, but do not affect the entitlements acquired on the basis of the previous period of employment (Art. 6 para. 2 ARB 1 / 80). A number of other issues have been clarified by several ECJ rulings.

It has been clarified that the first year of employment must go through without any interruption . Since Art. 6 Para. 2 ARB 1/80 speaks of “acquired entitlements”, interruptions in the first year of employment if the weakest entitlement according to Art. 6 Para. 1 - first indent - has not yet arisen, destroy the entitlement. An accumulation of several jobs is excluded. With the commencement of further employment during the first year, the period therefore starts again; earlier periods of employment are not taken into account. The three stages must also claim the sequence through to. For the third level of entitlement, it is not sufficient to have worked in the same industry for four years if the first three years were not with the same employer and the fourth year at least in the same industry.

The Turkish employee must also have a secure residence position . The only times that count are when he is in possession of a regular residence permit (Sevince, Kazım-Kuş decision 1992). Periods when he only had a visa or periods of only provisional right of residence (after submitting the application until the decision of the immigration authority) or periods during the suspensive effect of his action before the administrative court are generally not taken into account.

If employment interruptions are typical in the occupation , they are fundamentally harmless for the acquisition of claims according to ARB 1/80. A seaman who is usually only hired for a certain period of time, then initially does not work after returning to the home port, but lives with his family and after a few weeks hires again for a limited time, is to be treated like someone who is in a continuous Employment is in place, since the ARB 1/80 would otherwise be empty in this occupation. In this case, there is no need to report to the employment office if a second employment contract has already been concluded at the end of the first employment relationship, which must only be fulfilled later.

It has also been clarified that periods of employment based on a residence permit obtained through fraudulent misrepresentation are not included in the creditable periods of residence.

Loss of ARB status

The important question is what the consequences will be if the Turkish employee becomes unemployed after reaching the first level of entitlement as a result of prison sentences to be served . Such cases were assessed by the courts as “indebted unemployment”, which annihilated the claims acquired under Art. 6 Para. 2 ARB 1/80. In this context, however, it became clear that the German version of ARB 1/80 is based on a translation error; According to the other language versions, the corresponding passage was to be understood more as “ involuntary unemployment”. Since there is no element of fault, acquired claims are not lost even after criminal detention. After being released from prison, the Turkish employee must be given the opportunity to take up new employment for a reasonable period of time.

Otherwise, an ARB claim is only valid in the cases of Article 14 Paragraph 1 ARB 1/80, i.e. H. only for reasons of public order, security and health , or if the person concerned leaves the country in which he lives for a not inconsiderable period of time and without justified reasons . Art. 14 para. 1 ARB 1/80 is to be read in exactly the same way as Art. 48 para. 3 EC (now Art. 45 para. 3 TFEU), which deals with the loss of the right of free movement of Union citizens: it is only lost if through the behavior of the person concerned creates an actual and sufficiently serious threat that affects a fundamental interest of society . The bar for this is extremely high: Not every misdemeanor or even crime is sufficient for this. Only when the basic values ​​of the state order are affected, e.g. For example, through acts of terrorist violence or attacks aimed at the removal of the state order and its institutions, measures to terminate the stay may be considered. In general, drug-related crime is not enough to terminate your stay.

An acquired ARB status also has significant effects on protection against deportation. In this case, expulsions are only possible for special preventive reasons, not also for reasons of general prevention. Individual misconduct may be the only reason for deportation; expulsion to deter others is not permitted. It is always necessary to carefully weigh up all the circumstances that speak for and against the expulsion; the facts of deportation via regular or compulsory deportation ( Section 53 and Section 54 of the Residence Act) are not applicable to this group of people. The protection against deportation thus largely corresponds to the status of citizens of the European Union who are entitled to free movement.

Importance of the ARB 1/80 for the family members of Turkish employees

Even family members of Turkish workers have of Art. 7 ARB 1/80 residence and employment rights to take account. The family members of a Turkish worker who is on the regular labor market of a Member State and who have received authorization to move in with him have the right, subject to the priority to be given to workers from the Member States of the Community, to apply for any job offer if they have been there for at least have their proper place of residence for three years. They have free access to any wage or salary employment of their choice if they have been domiciled there for at least five years (Art. 7 sentence 1 ARB 1/80). The children of Turkish employees who have completed vocational training in the host country can apply for any job offer there, regardless of the length of their stay in the relevant member state, provided that one of the parents has been properly employed in the relevant member state for at least three years (Art. 7 sentence 2 ARB 1/80).

In this respect, too, ARB 1/80 is of importance in terms of residence law.

Practical effects of the ARB 1/80 status on the residence situation in Germany

Those who meet one of the requirements of ARB 1/80 do not need a special additional administrative document such as a work or residence permit. He has a right of residence under European law, which cannot be withdrawn or otherwise restricted by national regulations. All national regulations that conflict with this right are to be disregarded by the authorities and courts (so also the Soysal decision 2009).

In order to prove the ARB 1/80 status, however, the person concerned is obliged to prove that they are in possession of a residence permit ( Section 4 (5) of the Residence Act). Such a license is not “granted” to him, but only “issued” (Section 4 (5) sentence 2 of the Residence Act). In these cases, the residence permit only has a declaratory meaning and thus the function of an identity card. If the residence permit has expired, the stay remains lawful. A Turkish employee with ARB 1/80 status who fails to extend the residence permit in good time does not commit an offense under Section 95 (1) No. 2 AufenthG (illegal residence), because the residence remains material even after the residence permit has expired legal. The lack of a valid residence permit can only be punished as an administrative offense with a maximum fine of 3,000.00 EUR according to Section 98 (2) No. 1 AufenthG.

Character of the right of residence according to ARB 1/80

Turkish nationals who have reached the third level of Art. 6 ARB 1/80 or who meet the requirements of Art. 7 ARB 1/80 generally have a right of permanent residence . Nonetheless, they only receive a temporary residence permit in Germany (Section 4 (5) of the Residence Act). Often they later apply for a settlement permit , sometimes for a permit for long-term EC residence , although the association law tends to be stronger and more comprehensive than national residence rights, at least in the field of employment (gainful employment). The Federal Administrative Court has objected to the official practice of only granting temporary residence permits - in part for one, two or three years . In May 2012 it decided that Turkish nationals who fall under ARB 1/80 can claim a residence permit that is valid for at least five years and clearly shows their right of permanent residence. EEA citizens can also obtain residence documents that are valid for five years.

Individual evidence

  1. ↑ In Germany officially (partly incorrectly) published only in the official news of the Federal Labor Office (ANBA 1981 p. 4); ARB 1/80 has not been published in the Official Journal of the European Union. A web link leads to an authentic reproduction of the text (see at the end of the article).
  2. ↑ ECJ, judgment of April 17, 1997 - Case C-351/95 [Kadiman] -.
  3. ↑ ECJ, judgment of January 23, 1997 - Case C-171/95 [Tetik] -; Judgment of May 11, 2000 - Case C-37/98 [Savas] -.
  4. ↑ a b ECJ, judgment of September 20, 1990 - Case C-192/89 [Sevince] -.
  5. ↑ Summarized in the ECJ, judgment of January 24, 2008 - case C-294/06 [Payir, Akyuz and Ozturk] -.
  6. ↑ ECJ, judgment of October 5, 1994 - Case C-355/93 [Eroglu] -; Ruling v. September 30, 1997 - Case C-36/96 [Günaydin] -; Ruling v. September 30, 1997 - Case C-98/96 [Ertanir] -; Ruling v. Nov. 26, 1998 - Case C-1/97 [Birden] -.
  7. ↑ Section 16 subs. 3 of the Residence Act.
  8. ↑ ECJ, judgment of February 4, 2010 - C-14/09 [Genc] -.
  9. ↑ BVerwG, ruling v. April 19, 2012 - 1 C. 10.11 -, InfAuslR 2012, 243; see. also press release no. 35/2012 of the court on the same day
  10. ↑ ECJ, judgment of October 26, 2006 - Case C-4/05 [Güzeli] -.
  11. ↑ ECJ, judgment of May 29, 1997 - Case C-386/95 [Eker] -.
  12. ↑ a b ECJ, judgment of January 10, 2006 - Case C-230/03 [Sedef] -.
  13. ↑ ECJ, judgment of December 16, 1992 - Case C-237/91 [Kuş] -.
  14. ↑ ECJ, judgment of June 5, 1997 - Case C-285/95 [Col] -.
  15. ↑ a b ECJ, judgment of February 10, 2000 - Case C-340/97 [Nazli] -.
  16. ↑ ECJ, judgment of February 16, 2006 - Case C-502/04 [Torun] -.
  17. ↑ ECJ, judgment of June 6, 1995 - Case C-434/93 [Bozkurt] -.
  18. ↑ The residence permit according to § 4 Abs. 5 AufenthG is normally not issued for self-employed activities; Periods of self-employment do not establish entitlements according to Art. 6 ARB 1/80.
  19. ↑ BVerwG, judgment of May 22, 2012, Az. 1 C 6.11, and BVerwG, press release No. 46/2012 of May 22, 2012.

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