Judgment;Summary — ECLI:EU:C:2021:436
Date: 2021-06-03
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Association Agreement;External relations;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
TRANSLATION C-194/20 — 1 
Case C-194/20 
Request for a preliminary ruling 
Date lodged: 
8 May 2020 
Referring court: 
Verwaltungsgericht Düsseldorf (Germany) 
Date of the decision to refer: 
7 May 2020 
Applicants: 
BY 
CX 
DW 
EV 
FU 
Defendant: 
City of Duisburg 
  
ORDER 
In the administrative court proceedings 
1. BY, 
2. CX, 
3. DW, 
EN 
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4. EV, 
5. FU, 
the third and fourth applicants being represented by their parents, the first and 
second applicants, all residing in: […] Duisburg, 
applicants, 
[…]: 
versus 
the 
City of Duisburg […], 
defendant, 
concerning
   
 
the 7th Chamber of the Verwaltungsgericht Düsseldorf (Administrative Court of 
Düsseldorf) 
made, on 7 May 2020, the following 
[…] 
order: 
The proceedings are stayed. 
 [Or. 2] 
The following questions are referred to the Court of Justice of the 
European Union for a preliminary ruling pursuant to Article 267 
TFEU: 
1. Does the entitlement of Turkish children under the first sentence 
of Article 9 of Decision No 1/80 of the EEC-Turkey Association 
Council (‘Decision No 1/80’) also include a right of residence in the 
host Member State without the need to fulfil further conditions? 
2. If Question 1 is answered in the affirmative: 
(a) Does an entitlement to residence under the first sentence of 
Article 9 of Decision No 1/80 require that the parents of the 
the German law relating to foreign nationals (residence permit 
pursuant to Paragraph 4(5) of the Aufenthaltsgesetz (Law on 
residence, ‘AufenthG’); here: order to stay proceedings and for 
reference) 
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Turkish children benefiting from that provision have already 
acquired rights under Article 6(1) or Article 7 of Decision No 1/80? 
(b) If Question 2(a) is answered in the negative: Is legal 
employment within the meaning of the first sentence of Article 9 of 
Decision No 1/80 to be interpreted in the same way as in 
Article 6(1) of Decision No 1/80? 
(c) If Question 2(a) is answered in the negative: Can an 
entitlement to residence in respect of Turkish children under the 
first sentence of Article 9 of Decision No 1/80 already arise after 
one of the parents has been in legal employment in the host 
Member State for a period of (only) three months? 
(d) If Question 2(a) is answered in the negative: Does the right of 
residence of Turkish children also entail, without the need to fulfil 
further conditions, a right of residence for one or both parents 
with custody? 
I. 
The applicants are Turkish nationals. The first and second applicants 
the Chamber bases this numerical designation not on the numbering chosen 
by the applicants in the application initiating proceedings, but on the 
precedence given to the parents over the other applicants by the court 
administration, 
are the parents of the third, fourth and fifth applicants, the latter having already 
reached the age of majority. 
The first applicant entered Germany with a visa on 5 September 2015 and 
received via the defendant a residence permit for exercising self-employed 
activities (as a truck driver) from the defendant on 4 November 2015, which was 
valid until 27 March 2017. 
The second, third, fourth and fifth applicants then entered Federal territory 
together on 19 February 2016 with a family reunification visa valid until 16 May 
2016 and received residence permits in accordance with Paragraphs 30 and 32 of 
the Law on residence on 20 April 2016, which were also valid until 27 March 
2017. 
The second applicant worked as a warehouse assistant at MKS Kurierservice 
Metin Sariözüm in Duisburg, which registered, with the Deutsche 
Rentenversicherung (German pension insurance scheme), a period of employment 
commencing on 1 February 2016 [Or. 3] and ending on 30 April 2016 (three 
months). Further periods of employment are registered for the periods from 
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15 November to 31 December 2017, 1 January to 15 January 2018 and 1 August 
to 31 December 2018. 
The third, fourth and fifth applicants attend state schools in Duisburg and, 
according to the records, have done so since 21 June 2016. 
After the period of validity of the residence permits issued had expired, the 
defendant provisionally extended the applicants’ permits by issuing provisional 
residence documents (‘Fiktionsbescheinigung’). 
On 1 December 2017, the first applicant de-registered his business after receiving 
a penalty order for careless driving without a driving licence. On 1 February 2018, 
he registered another business (vans up to 3.5 tonnes). 
By written submission from their lawyer of 2 October 2018, the applicants 
communicated that the first applicant intended to work as a dependent employee 
in the future and was applying for a residence permit pursuant to Paragraph 18 of 
the Law on residence or any other provision that could be of relevance. The 
second applicant would also return to work as from 1 August 2018, while the 
third, fourth and fifth applicants would continue to attend school. Rights of 
residence for the children arose from Article 9 of Decision No 1/80 and Article 3 
of Decision No 2/76 of the EEC-Turkey Association Council (‘Decision 
No 2/76’). 
After hearing the applicants, the defendant refused to renew or issue residence 
permits by administrative orders of 18 March 2019 and ordered the applicants to 
depart from the territory within 30 days of the notification of the order under 
threat of deportation to Turkey. As grounds, it stated that the first applicant was no 
longer self-employed. The income earned from the activity carried out as a 
salaried employee did not cover the subsistence costs of the ‘community of need’, 
as required by point 1 of Paragraph 5(1) of the Law on residence. 
The applicants brought an action on 22 March 2019, by which they pursue their 
request to be issued a residence permit or have their residence permits extended. 
In support of their action, they assert that the third, fourth and fifth applicants, as 
the Turkish children of the first and second applicants, lived with their parents in a 
lawful manner. The rights to participate in education arising from Article 9 of 
Decision No 1/80 and Article 3 of Decision No 2/76 entailed a right of residence, 
to which the parents with custody also had to be entitled. 
Accordingly, the applicants request that 
the administrative orders of 18 March 2019 be annulled and the 
defendant be obliged to issue a new decision on the applications for 
extension, having due regard for the court’s legal appraisal. 
The defendant requests that 
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the action be dismissed [Or. 4] 
and, in support of its request, refers to the grounds set out in the contested 
administrative orders. In addition, it submits that the third, fourth and fifth 
applicants could not rely on rights under Article 9 of Decision No 1/80, since their 
parents had not acquired rights under Article 6 or 7 of Decision No 1/80. 
In the preliminary hearing (in the main proceedings and the proceedings for 
interim measures) before the Judge-Rapporteur, the defendant suspended the 
execution of the contested administrative orders. 
[…] [reference to the case files]. 
II. 
The case must be stayed. Pursuant to Article 267 TFEU, a preliminary ruling of 
the Court of Justice of the European Union (‘Court of Justice’) must be obtained 
on the questions set out in the operative part of this order. These questions 
concern the interpretation of Decision No 1/80 of the Association Council of 
19 September 1980 on the development of the Association. Since the questions 
concern the interpretation of EU law, the Court of Justice has jurisdiction. 
1. The legal assessment of the claim asserted by the applicants — that the 
defendant’s rejection decision of 18 March 2019 should be annulled and it should 
be obliged to issue a new decision on their residence permit application, having 
due regard to the court’s legal appraisal — is based on the current legal situation. 
On that basis, the following provisions of national law form the relevant legal 
framework in the present case : 
Paragraph 4 AufenthG 
(…) 
(5) A foreigner who possesses a right of residence in accordance with the EEC-
Turkey Association Agreement shall be obliged to furnish evidence of the 
existence of said right through the possession of a temporary residence permit, 
unless he is in possession of a permanent settlement permit or an EU long-term 
residence permit. Said residence permit shall be issued on application. 
Paragraph 50 AufenthG 
(1) A foreigner shall be obliged to leave the federal territory if he does not possess  
or no longer possesses the necessary residence title a right of residence does not 
exist or no longer exists under the EEC-Turkey Association Agreement. [Or. 5] 
(…) 
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2. The questions referred for a preliminary ruling are material to the decision to be 
given and require clarification by the Court of Justice of the European Union. 
a) The effect of the school attendance — as from 21 June 2016, according to 
the records — of the third, fourth and fifth applicants, who live with their parents 
in a joint household, is of decisive significance for the legal assessment of the 
claim asserted by the applicants in which they seek an extension of the residence 
permits issued on the basis of national law. 
Following the preliminary hearing conducted by the Judge-Rapporteur, it is 
common ground that the second applicant worked as a salaried employee in the 
Federal territory in the period from 1 February to 30 April 2016 (three months) 
and had an undisputed right of residence. During further periods of employment, 
she was only in possession of provisional residence documents, after which no 
residence permit was issued. It is common ground that the applicants have not 
acquired rights under Articles 6 and 7 of Decision No 1/80. 
The applicants are not pursuing claims for residence permits based on national 
law — with the exception of the provision in Paragraph 4(5) of the AufenthG, a 
prerequisite of which is a right of residence on the basis of the Association 
Agreement. 
The applicants are now relying solely on the provision in Article 9 of Decision 
No 1/80, from which they derive not only a right for Turkish children to 
participate in school education and vocational training, but also rights of residence 
for the third, fourth and fifth applicants on the basis of their school attendance, 
which is not a point of contention between the parties. According to the 
applicants, the residence of the first and second applicants, which is required in 
order to give practical effect to the rights of the third, fourth and fifth 
applicants — in any event with regard to the third and fourth applicants, who have 
not yet reached the age of majority — is also granted by Article 9 of Decision 
No 1/80. 
In so far as the applicants additionally, and also primarily, rely on the provisions 
of Article 3 of Decision No 2/76, the Chamber considers that that provision has 
been entirely replaced by Article 9 of Decision No 1/80, and the applicants can no 
longer derive any rights from it. 
b) The national case-law on the question of whether Article 9 of Decision 
No 1/80 has the effect of conferring rights of residence is inconsistent. 
According to the judgment of the Hessische Verwaltungsgerichtshof (Higher 
Administrative Court of Hesse) of 17 February 1997 
[…] 
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Article 9 of Decision No 1/80 presupposes a right of residence for the children, 
but does not establish any entitlement to family reunification or other means of 
regularising irregular migrants. 
See also, in this respect, judgment of the Higher Administrative Court of 
Hesse of 2 December 2002 […], even if it casts even more doubt in the light 
of the Court of Justice’s decision in the Baumbast case of 17 September 
2002, C-413/99, concerning Article 12 of Regulation (EEC) No 1612/68. 
[Or. 6] 
According to a further view, the possibility of the provision having the effect of 
conferring a right of residence could be ruled out in any event if the Turkish child 
entered the country for the purpose of education and not in the context of family 
reunification. The reason for this was that — as made clear by the second sentence 
of Article 7 of Decision No 1/80 — children acquired an independent right of 
residence in connection with education only after having completed it. 
Oberverwaltungsgericht Nordrhein-Westfalen (Higher Administrative Court 
of North Rhine-Westphalia), order of 3 April 2001 […]. 
Nor could an effect of conferring a right of residence be inferred from that 
provision if, at the time of the Turkish child’s entry, the parents no longer had 
Turkish nationality, but that of the host Member State. 
Oberverwaltungsgericht Rheinland-Pfalz (Higher Administrative Court of 
Rhineland-Palatinate), order of 29 June 2009 […]. 
According to another view, Turkish children who fulfil the other requirements of 
the first sentence of Article 9 of Decision No 1/80 also have a right of residence 
protected under EU law during the education available to them under that 
provision. 
Verwaltungsgericht Karlsruhe (Administrative Court of Karlsruhe), 
judgment of 2 July 2004 […]. 
From the national case-law of other Member States, the referring court is aware of 
the decision of the Raad van State (Council of State) of 27 November 2008 
[…] 
which takes the view that Article 9 of Decision No 1/80 relates only to children of 
Turkish workers as described in Articles 6 and 7 of Decision No 1/80, in line with 
the objective of the Decision of the Association Council — the gradual integration 
of Turkish workers […]. 
c) The Chamber is inclined to take the view that Article 9 of Decision No 1/80 
cannot be said to have the effect of conferring a right of residence, at least in cases 
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where the parents have not acquired rights under Article 6(1) or (7) of Decision 
No 1/80 (see question 2(a)). 
Question 1 seeks to ascertain whether the content of Article 9 of Decision No 1/80 
gives rise to rights of residence, as claimed by the applicants. 
At first glance, the provision is very similar, in terms of structure and conditions, 
to the provision in Article 10(1) of Regulation (EU) No 492/2011 of the European 
Parliament and of the Council of 5 April 2011 on freedom of movement for 
workers within the Union, 
or Article 12 of the predecessor, REGULATION (EEC) No 1612/68 OF 
THE COUNCIL of 15 October 1968 on freedom of movement for workers 
within the Community, [Or. 7] 
and is therefore open to being interpreted as being relevant to rights of residence. 
This is because the Court of Justice has clarified, in settled case-law, that the 
provision in Article 12 of Regulation (EEC) No 1612/68 or Article 10(1) of 
Regulation (EU) No 492/2011 does have relevance to rights of residence, and has 
clarified the conditions under which that relevance arises and the scope of that 
relevance. 
CJEU, judgment of 13 June 2013 — C-45/12 [ECLI:EU:C:2013:390], Hadj 
Ahmed — paragraph 46; CJEU, judgment of 23 February 2010 — C-310/08 
[ECLI:EU:C:2010:80; CJEU], Teixeira, paragraph 61, judgment of 
17 September 2002 — C-413/99 [ECLI:EU:C:2002:493], Baumbast and 
R — paragraph 73 et seq.; CJEU, judgment of 23 February 2010 — 
C-480/08 — paragraphs 86 and 87; CJEU, judgment of 27 September 
1988 — C-263/86 [ECLI:EU:C:1988:451], Humbel and Edel — 
paragraphs 24 and 25; CJEU, judgments of 15 March 1989 — C-389/87 
[ECLI:EU:C:1989:130], Echternach and Moritz — paragraphs 29 and 30, 
and of 23 February 2010 — C-310/08 — paragraph 19; CJEU, judgment of 
17 September 2002 — C-413/99 — paragraph 54; CJEU, judgment of 
8 May 2013 — C-529/11 [ECLI:EU:C:2013:290], Alarape and Tijani — 
paragraph 48. 
However, there are also significant differences between the provision in Article 9 
of Decision No 1/80 and the aforementioned provisions. 
It is therefore clear that, based on its wording, the provision is intended to benefit 
only Turkish children, in contrast to Article 10(1) of Regulation (EU) 
No 492/2011 and Article 12 of Regulation (EEC) No 1612/68. 
It cannot be inferred, even in the light of the provision in Article 7 of Decision 
No 1/80, that the nationality of the children of a Turkish worker — as required by 
Article 9 of Decision No 1/80 — is supposed to be of significance for integration 
in the host Member State. This is because it benefits family members of Turkish 
workers, irrespective of their nationality, in terms of access to the labour market 
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and therefore also with regard to their residence. Paragraph 2 makes the children’s 
entitlement to benefit from the provision dependent — likewise irrespective of 
their nationality — on the completion of vocational training in the host Member 
State. Assuming that the two provisions are schematically connected in terms of 
rights of residence, it makes little sense to make access to (vocational) training 
dependent on the possession of Turkish nationality. In this respect, the meaning of 
the provision in Article 9 — aside from its undisputed content regarding anti-
discrimination and participation (especially in the second sentence) — could be 
confined to a statement of principle. 
Furthermore, integration under residence law via access to the labour market after 
having obtained an education in the host Member State is comprehensively, but 
not unconditionally, regulated in Article 7. In the light of these detailed 
provisions, deriving a right of residence solely from the (former) status as a 
worker of a Turkish parent with whom the child lives must be contradictory if 
those parents have not acquired rights of their own under Article 6 or 7 of 
Decision No 1/80. 
(d) If the core question as to whether the content of Article 9 of Decision No 1/80 
confers rights of residence (Question 1) is answered in the affirmative, the 
referring court raises Questions 2(a) to (d) regarding the conditions for a right of 
residence under Article 9 of Decision No 1/80 and the legal consequences. [Or. 8] 
In this respect, Question 2(a) concerns the legal status of the parents, namely 
whether they must already have acquired rights under Article 6 of Decision 
No 1/80 (direct) or Article 7 of Decision No 1/80 (derived) in order to be able to 
confer rights on their own children (or also stepchildren, where applicable) 
pursuant to Article 9 of Decision No 1/80 — under the other conditions of the 
provision. 
By Question 2(b), the referring court is introducing the Court of Justice’s case-law 
on the criterion of ‘legal employment’. If Question 2(a) is answered in the 
negative, must the legal employment of the parents then be subject to the same 
conditions to which it is subject in Article 6 of Decision No 1/80 and can the 
interpretation developed in relation to Article 6 of Decision No 1/80 be applied in 
relation to Article 9 of Decision No 1/80? 
If Question 2(a) is answered in the negative, there is no time frame that can be 
imposed for engaging in legal employment. In this respect, can the entitlement of 
Turkish children under Article 9 of Decision No 1/80 arise if one of the parents 
has been in employment for a duration of (only) three months and is actual 
attendance at the educational establishment a condition for the acquisition and 
continued existence of the right of residence (Question 2(c))? 
Finally, Question 2(d) concerns the exercise of the right by Turkish children for 
whom, in the case of being under the age of majority, that can be factually 
possible only if a parent who has custody of the children is present. Can parents 
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with custody derive from the right of residence of Turkish children a right of 
residence — which is possibly limited by the child’s minority and actual 
attendance at the educational establishment? 
[…]