Petra Foubert. Assistant at the Institute for European Law, Katholieke Universiteit Leuven

Association Agreement between the EEC and Turkey; Freedom of movement for workers; Permanent incapacity for work of an international truck-driver; Right to remain.

Facts and procedure

Ahmet Bozkurt is a Turkish national and was from at least 1979 employed as an international truck-driver on routes to the Middle East by a Dutch company, his contract of employment was concluded under Netherlands law and drawn up in Dutch. In the periods between his journeys and during his periods of leave he resided in the Netherlands. According to the Netherlands Law on Work by Foreign Employees (Wet Arbeid Buitenlandse Werknemers), a work permit is not required for work as a driver in international transport, since international truck-drivers are not regarded as foreigners. Nationals of third countries in this type of employment receive, according to the Netherlands Law on Aliens (Vreemdelingenwet), a visa for one year at the time, with a right of residence of up to three months at a time, with a maximum of nine months total residence in a year. Subject to those restrictions they may spend their so-called “free periods” in the Netherlands without a residence permit.

In 1988, Mr. Bozkurt was the victim of an accident at work and was declared permanently incapable of work. Since he was covered by the Netherlands social security system as a result of his incapacitation, he received Dutch unemployment benefits. In the Netherlands, the benefit for incapacity for work is paid irrespective of whether or not the recipient resides in the country.

In March 1991, Mr. Bozkurt applied to the Dutch authorities for an unlimited residence permit, but the Rotterdam police rejected the application. Mr. Bozkurt asked the Minister of Justice to review that decision, but this request was rejected. In July 1991, Mr. Bozkurt lodged an appeal with the Netherlands Council of State (Raad van State) for annulment of the Minister of Justice’s refusal to review. He claimed that, on the basis of two Decisions$ of the Association Council established by the Agreement of Association between the EEC and Turkey,4 he had the right to stay in the Netherlands. As final adjudication of his claim would have involved the interpretation of these two Decisions, the Council of State referred four questions to the Court of Justice for a preliminary ruling under Article 177 of the EC Treaty. The Council of State essentially wanted to know whether, within the meaning of the two Decisions, Mr. Bozkurt had been legally employed in the Netherlands, and whether he had a right of residence for so long as he was legally employed and whether he retained that right of residence after becoming permanently and completely incapable of working.