Opinion of the Advocate General — ECLI:EU:C:2011:244
Date: 2011-04-14
Language of the case: German
Subject matter: Association Agreement;External relations;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. International agreements – EEC-Turkey Association Agreement – Association Council set up by the EEC-Turkey Association Agreement – Decision No 1/80 – Freedom of movement for persons – Workers – Limitations justified on grounds of public policy, public security or public health – Scope – Long-term residents (Council Directive 2003/109, Art. 12; Decision No 1/80 of the EEC-Turkey Association Council, Art. 7, first para., second indent, and 14(1)) 2. International agreements – EEC-Turkey Association Agreement – Association Council set up by the EEC-Turkey Association Agreement – Decision No 1/80 – Protection against expulsion – Long-term residents (European Parliament and Council Directive 2004/38, Art. 28(3)(a); Decision No 1/80 of the EEC-Turkey Association Agreement, Art. 7, first para., second indent, and 14(1)) 1. For the purposes of applying Article 14(1) of Decision No 1/80 of the EEC-Turkey Association Council, the reference framework under EU law, in the case of a foreign national who has resided lawfully and continuously in the host Member State for more than 10 years, consists of Article 12 of Directive 2003/109 concerning the status of third-country nationals who are long-term residents, which, failing any more favourable rules in the law under the EEC-Turkey Association, is a rule of minimum protection against expulsion for any national of a non-member State who holds the status of long-term lawful resident in the territory of a Member State. Moreover, the public policy exception in the area of free movement of workers who are nationals of Member States of the European Union, as provided for by the Treaty and applicable by analogy under the EEC-Turkey Association, is a derogation from that fundamental freedom, which must be interpreted strictly and whose scope may not be determined unilaterally by the Member States. Thus, measures on grounds of public policy or public security may be taken only if, after a case-by-case assessment by the competent national authorities, it proves that the personal conduct of the individual concerned constitutes at present a genuine, sufficiently serious threat to a fundamental interest of society. In that assessment, those authorities are also required to observe both the principle of proportionality and the fundamental rights of the person concerned, in particular, the right to privacy and family life. Accordingly such measures are not to be ordered automatically following a criminal conviction or on general preventive grounds as a means of deterring other foreign nationals from committing offences. If the existence of several previous criminal convictions is, in itself, irrelevant for justifying an expulsion depriving a Turkish national of rights he derives directly from Decision No 1/80, the same must hold all the more true for a justification relating to the duration of any prison terms to which the individual concerned was sentenced. It is accordingly in the light of the person’s current situation that it will be for the referring court to weigh up the necessity of the planned interference with his right of residence in order to safeguard the legitimate interest pursued by the host Member State and the actual integration factors enabling the individual concerned to reintegrate into society in that Member State. (see paras 78-79, 81-83, 85) 2. Article 14(1) of Decision No 1/80 of the EEC-Turkey Association Council must be interpreted as meaning that: – the protection against expulsion conferred by that provision on Turkish nationals does not have the same scope as that conferred on citizens of the Union under Article 28(3)(a) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, with the result that the scheme of protection against expulsion enjoyed by the latter cannot be applied mutatis mutandis to Turkish nationals for the purpose of determining the meaning and scope of Article 14(1) of Decision No 1/80; – that provision of Decision No 1/80 does not preclude an expulsion measure based on grounds of public policy from being taken against a Turkish national whose legal status derives from the second indent of the first paragraph of Article 7 of that decision, in so far as the personal conduct of the individual concerned constitutes at present a genuine and sufficiently serious threat affecting a fundamental interest of the society of the host Member State and as that measure is indispensable in order to safeguard that interest. It is for the national court to determine, in the light of all the relevant factors relating to the situation of the Turkish national concerned, whether such a measure is lawfully justified in the main proceedings. (see para. 86, operative part)