“The claims raise important issues of Community-wide application concerning the scope of the residence and employment rights (if any) of Turkish citizens who enter the Member States of the European Union as students [sc. in the case of Payir as an au pair] with a limited ability to undertake some employment.”
“To ensure the implementation and the progressive development of the Association, the Contracting Parties shall meet in a Council of Association, which shall act within the powers conferred upon it by this Agreement.”
“Subject to Article 7 on free access to employment for members of his family, a Turkish 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 is available; • shall be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of Member States of the Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment service of that State, for the same occupation; • shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment.”
“The members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State, who have been authorised to join him: • shall be entitled – subject to the priority to be given to workers of Member States of the Community – to respond to any offer of employment after they have been legally resident for at least three years in that Member State; • shall enjoy free access to any paid employment of their choice provided they have been legally resident there for at least five years.”
“Turkish children residing legally with their parents, who are or have been legally employed in a Member State of the Community, will be admitted to courses of general education, apprenticeship and vocational training under the same educational entry qualifications as the children of nationals of the Member States…”
“The Member States and Turkey shall co-operate, in accordance with their domestic situations and their legal systems, in appropriate schemes to promote the social and cultural advancement of Turkish workers and the members of their family, in particular literacy campaigns and courses in the language of the host country, activities to maintain links with Turkish culture and access to vocational training.” • 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 is available; • shall be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of Member States of the Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment service of that State, for the same occupation; • shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment.” • shall be entitled – subject to the priority to be given to workers of Member States of the Community – to respond to any offer of employment after they have been legally resident for at least three years in that Member State; • shall enjoy free access to any paid employment of their choice provided they have been legally resident there for at least five years.”
“Your previous category was that of an au pair. As such you entered the United Kingdom to learn English, and to help in the home you are staying in for five hours a day. This is not employment. It is not a category that would allow you to work full time for a continuous period of twelve months. Therefore the Secretary of State is not satisfied that you qualify under the provisions of the Agreement.”
“If… [Ms Watson] was [in Italy] as an ‘au pair’ employed as a family help to look after the children of the co-defendant, she would undoubtedly come into one of the categories of person upon whom the treaty confers the right to move freely within the Community. As this would in fact be work performed for a consideration (board and lodging), she could be classified as coming within a master and servant relationship or, if this were not the case, she would at least come under the alternative heading of provision of services.”
“[T]he concept of being duly registered as belonging to the labour force of 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 from Article 6(1) of Decision No 1/80 on the ground that it sets out an additional condition, different from the condition that the person concerned be in legal employment for a certain period.”
“55. Finally as regards the question whether such a worker was in legal employment in the host Member State for the purposes of Article 6(1) of Decision No 1/80, it should be recalled that, according to settled case-law (judgments in Sevince, paragraph 30, Bozkurt, paragraph 26, andCase C-237/91 Kus v Landeshauptstadt Wiesbaden[1992] ECR I-6781 , paragraphs 12 and 22), the legality of the employment presupposes a stable and secure situation as a member of the labour force of a Member State and, by virtue of this, implies the existence of an undisputed right of residence.”
“30. The legality of the employment within the meaning of those provisions, even assuming that it is not necessarily conditional upon possession of a properly issued residence permit, nevertheless presupposes a stable and secure situation as a member of the labour force. 31. In particular, although legal employment over a given period gives rise, at the end of that period, to recognition of a right of residence, it is inconceivable that a Turkish worker could contrive to fulfil that condition, and consequently be recognised as being vested with that right, merely because, having been refused a valid residence permit by the national authorities during that period and having exercised the rights of appeal provided for by national law against such refusal, he benefited from the suspensory effect deriving from his appeal and was therefore able to obtain authorisation, on a provisional basis pending the outcome of the dispute, to reside and be employed in the Member State in question. 32. Consequently, the expression ‘legal employment’ contained in… the third indent of Article 6(1)… cannot cover the situation of a Turkish worker who has been legally able to continue in employment only by reason of the suspensory effect deriving from his appeal pending a final decision by the national court thereon, provided always, however, that that court dismisses his appeal.”
“21. It should be noted that, according to its wording, Article 6(1) applies to Turkish workers duly registered as belonging to the labour force of a Member State and that, under the first indent, a Turkish worker needs only to have been in legal employment for more than one year in order to be entitled to the renewal of his permit to work for the same employer. That provision does not therefore make that right dependant on any other condition, such as the circumstances under which the right of entry and residence were obtained. 22. Accordingly, even though legal employment within the meaning of Article 6(1) presupposes a stable and secure situation as a member of the labour force and, by virtue of this, implies the existence of an undisputed right of residence and indeed, if necessary, possession of a lawful residence permit, the reasons for which that right was conferred, or for which the residence permit was granted, are not decisive for the purposes of their application. 23. It follows that once a Turkish worker has been employed for more than one year under a valid work permit, he must be regarded as fulfilling the conditions laid down in the first indent of Article 6(1)…, even though his residence permit was initially granted to him for a purpose other than that of engaging in paid employment. 24. At the hearing the United Kingdom argued that such a view of the matter could result in differential treatment for Turkish nationals depending on whether the national legislation of the Member State in which they are staying permits them to work, where the initial reason for their stay was not to engage in paid employment. 25. However that may be, it should be pointed out that such a situation would merely reflect the fact that Decision No 1/80 does not encroach upon the competence retained by the Member States to regulate both the entry into their territories of Turkish nationals and the conditions under which they may take up their first employment, but merely regulates, particularly in Article 6, the situation of Turkish workers already integrated into the labour force of a Member State. That situation cannot, therefore, in the case of Turkish workers who are already in possession under the legislation of a Member State of a work permit and who, where required, hold a right of residence constitute justification for depriving them of the rights provided for in Article 6(1)…”
“14. It appears from the order for reference that persons employed under the scheme set up by the Social Employment Law perform services under the direction of another person in return for which they receive remuneration. The essential feature of an employment relationship is therefore present. 15. That conclusion is not altered by the fact that the productivity of persons employed in the scheme is low and that, consequently, their remuneration is largely provided by subsidies from public funds. Neither the level of productivity nor the origin of the funds from which the remuneration is paid can have any consequence in regard to whether or not the person is to be regarded as a worker. 16. Nor can the person cease to be regarded as a worker merely by virtue of the fact that the employment relationship under the Social Employment Law is of a sui generis nature in national law… 17. However, work under the Social Employment Law cannot be regarded as an effective and genuine economic activity if it constitutes merely a means of rehabilitation or reintegration of the persons concerned and the purpose of paid employment, which is adapted to the physical and mental possibilities of each person, is to enable those persons sooner or later to recover their capacity to take up ordinary employment or to lead as normal as possible a life. 18. It appears from the order of reference that the jobs in question are reserved for persons who, by reason of circumstances relating to their situation, are unable to take up employment under normal conditions and that the social employment ends once the local authority is informed by the employment office that the persons concerned will be able within a short period to take up employment under normal conditions. 19. It also appears from the order of reference that persons employed under the Social Employment Law are not selected on the basis of their capacity to perform a certain activity; on the contrary, it is the activities which are chosen in the light of the capabilities of the persons who are going to perform them in order to maintain, re-establish or develop their capacity for work. Finally, the activities involved are pursued in the framework of undertakings or work associations created solely for that purpose by local authorities. 20. The reply to the national court’s question must therefore be that Article 48(1) of the EEC Treaty is to be interpreted as meaning that a national of a Member State employed in another Member State under a scheme such as that established under the Social Employment Law, in which the activities carried out are merely a means of rehabilitation or reintegration, cannot on that basis alone be regarded as a worker for the purposes of Community Law.”
“… [T]he conclusion reached by the Court in Bettray, according to which a person employed under a scheme such as that at issue in that case could not, on that basis alone, be regarded as a worker and the fact that that conclusion does not follow the general trend of the case-law concerning the interpretation of that concept in Community law… can be explained only by the particular characteristics of that case and it cannot therefore be applied to a situation such as that of the applicant in the main proceedings, the features of which are not comparable.”