Opinion of Advocate General Darmon delivered on 10 November 1992

1 Original language: French.

2 Agreement concluded on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (tournai Officiel 1964, 217, p. 3685; English text published in OJ 1973 C 113, p. 1).

3 Sec Stangos, P.: Les ressortissants d'États tiers au sein de l'ordre juridique communautaire, CDĪ, 1992, Nos 3-4, pp. 306, 307).

4 Journal Officiel 1972, L 293, p. 1; English text published in OJ 1973 C 113, p. 17.

5 Decision No 2/76, which provides, inter alfo, that a Turkish worker employed for five years in a Member State of the Community is to have free access to any activity of his choice.

6 Decision of the national court.

7 Ibid.

8 Heading I, paragraph 10.

9 Decision of the national court.

10 Case 181/73 Haegcmaim v Belgium [1974] ECR 449.

11 Paragraphs 4 to 6. The case concerned the Athens Agreement of 9 July 1961 creating an Association between the EEC and Greece, concluded on behalf of the Community by Council Decision 63/106/EEC of 25 September 1961 (Journal Officiel 1963, 26, p. 293).

12 Case C-192/89 Seviiicc v Staatssecretaris van Justitie [1990] ECR I-2461.

13 Paragraph 8.

14 Paragraph 9.

15 Paragraph 10.

16 Decision 64/737/EEC {Journal Officiel 1964, 217, p. 3703).

17 Judgment in Case 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719.

18 Paragraph 9. As has rightly been observed, it follows from that judgment that the interpretation of Article 238 given here confers on the Community an express and virtually general power to deal with non-member countries in matters within the scope of the Treaty. Stangos, P.: op. cit., p. 327.

19 See Article 6(3) of the Decision.

20 Case 104/81 Hauptzollamt Mainz v Kupferberg [1982] ECR 3641.

21 Cited above, paragraph 11.

22 Paragraph 7.

23 See above, paragraph 13.

24 The representative of the German Government, moreover, decided not to argue this point at the hearing.

25 Paragraph 15 of my Opinion.

26 See Article 22(1) of the Agreement.

27 Gllsdorf, P.: Les organes institués par les accords communautaires: effets juridiques de leurs décisions, Revue du murche commun, No 357, p. 328, paragraph 3(b).

28 Which essentially serve to set out a programme. Paragraph 23 of the Demirel judgment and paragraph 21 of the Scvince judgment.

29 Scvince judgment, paragraph 21.

30 Ibid., paragraph 30.

31 Paragraph 31, emphasis added.

32 Paragraph 58 of my Opinion.

33 Paragraph 59; see also paragraphs 60 to 62.

34 The Landeshauptstadt Wiesbaden appealed against the decision of the Verwaltungsgericht.

35 The converse solution would mean that an asylum seeker who obtained the right to work while his application was being examined could, by reason solely of that employment, obtain the right to seek a residence permit.

36 Paragraph 28.

37 Paragraph 29.

38 Competence regarding entry by and initial residence of nationals of non-member countries is retained by the Member States.

39 See, in that sense, Rittstieg: Aufenthaltsrechtliche Bedeutung des Assoziationsratbeschlusses 1/80 für türkische Staatsangehörige, InfAuslR 1/91, p. 1.

40 Paragraph 55 of my Opinion.

41 It cannot be denied that in such a situation the Member State concerned maintains control of its migratory flows, since the Turkish national was allowed to enter and benefit from a right of residence in the Member State concerned by a decision adopted, in application of domestic law, by the competent national authorities exercising their sovereign powers. I should add that the Council of Association decides unanimously (Article 23 of the Association Agreement) and that, consequently, all the Member States have agreed to the rules which it lays down.

42 Added by myself.

43 Paragraph 29 of the Scvince judgment, emphasis added. I would note, in that respect, that Article 13 of Decision No 1/80 provides a protection clause, according to which The Member States of the Community may not introduce new restrictions on the conditions of access to employment applicable to workers and members of their families legally resident and employed in their respective territories (emphasis added). Furthermore, Article 38 of the Additional Protocol confers an autonomous right on the Association Council to examine questions relating to the extension of work permits and residence permits.

44 Paragraph 26 of the Scvince judgment.

45 Case S/77 Sagulo, Brenca and Bakhonche [1977] ECR 1495.

46 Paragraph 8. The directive cited is Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, English Special Edition 1968 (II), p. 485). See also, most recently, judgments in Case C-363/89 Roux v Belgian State [1991] ECR I-273, paragraph 9, and Case C-376/89 Giagounidis v Stadt Reutlingen [1991] ECR I-1069, paragraphs 13 and 14.

47 Opinion of Advocate General Reischl in the Sagulo Case, cited above (at [1977] ECR 1511).

48 See in particular Article 14.

49 Lörchen Die Rechte der türkischen Arbeitnehmer/innen nach der Ratifizierung der Europäischen Sozialcharta durch die Türkei und dem Sevince-Urteil des Europäischen Gerichtshofs, EuZW 13/1991, p. 395.

50 See, in that respect, paragraph 22 of the Sevince judgment.