Opinion of the Advocate General — ECLI:EU:C:2008:500
Date: 2008-09-11
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
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 established by the EEC-Turkey Association Agreement – Decision No 1/80 – Family reunification – Right of family members of a Turkish worker duly registered as belonging to the labour force of a Member State to work in that Member State – Conditions (Decision No 1/80 of the EEC-Turkey Association Council, Art. 7, first para.) 2. International agreements – EEC-Turkey Association Agreement – Association Council established by the EEC-Turkey Association Agreement – Decision No 1/80 – Family reunification – Recognition of the right of access to the labour market of the host Member State of a family member of a Turkish worker (Decision No 1/80 of the EEC-Turkey Association Council, Art. 7, first para) 3. International agreements – EEC-Turkey Association Agreement – Association Council established by the EEC-Turkey Association Agreement – Decision No 1/80 – Family reunification – Restriction on the right of family members of a Turkish worker to access to the labour force of the host Member State on account of the fraudulent conduct of that worker – Conditions (Decision No 1/80 of the EEC-Turkey Association Council, Arts 7(1) and 14(1)) 1. The first indent of the first paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council is to be interpreted as meaning that the child of a Turkish worker may enjoy rights arising by virtue of that provision where, during the three-year period when the child was co-habiting with that worker, the latter was working for two and a half years before being unemployed for the following six months. The right granted to the child of a Turkish worker to respond to any offer of employment in the host Member State is subject to two conditions: the worker must be duly registered as belonging to the labour force of that State and the child must have been legally resident there for at least three years. The fact that the condition of eligibility for the right of access to employment in the host Member States disappears with respect to the worker after a family member has himself acquired that right is not, of itself, capable of calling into question the right acquired by that family member. It follows that, for the purposes of the acquisition of the right of access to employment in the host Member State by the family member of a Turkish worker, the condition that the latter be duly registered as belonging to the labour force must have been fulfilled for at least the three-year period of cohabitation. Involuntary unemployment cannot of itself prevent a Turkish worker from continuing to belong to the labour force of the host Member State. (see paras 22, 26, 36-37, 40, operative part 1) 2. The fact that a Turkish worker has obtained the right of residence in a Member State and, accordingly, the right of access to the labour market of that State as a political refugee does not prevent a member of his family from enjoying the rights arising under the first paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council. The exercise of the rights that Turkish nationals derive from Decision No 1/80 is not subject to any condition relating to the ground on which the right of entry and of residence was originally granted in the host Member State. As regards a potential ‘double benefit’ conferred on refugees, first, by Decision No 1/80 and, second, by the Geneva Convention relating to the status of refugees, Article 5 of that Convention states that nothing in the convention is to be deemed to impair any rights and benefits granted to refugees apart from that convention. Decision No 1/80 grants to the family members of a Turkish worker rights which they cannot invoke under that Convention as it does not confer any right of the kind laid down in Article 7 of Decision No 1/80. Although Decision No 1/80 does not encroach upon the competence retained by the Member States to regulate both the entry into their territory of Turkish nationals and the conditions under which they may take up their first employment, the refusal to apply Decision No 1/80 on account of the status of political refugee enjoyed by a Turkish worker when his permission to enter and to stay in a Member State was issued would impair the rights that he and the members of his family derive from that decision. (see paras 42-50, operative part 2) 3. The first paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council is to be interpreted as meaning that when a Turkish worker has obtained the status of political refugee on the basis of false statements, the rights of access to the labour market of the host Member State that a member of his family derives from that provision cannot be called into question if the latter, on the date on which the residence permit issued to that worker is withdrawn, fulfils the conditions laid down therein. If, on the date on which the residence permit of a Turkish worker is withdrawn, the rights of his family members are inchoate in so far as the condition relating to the period of actual cohabitation with the worker laid down by the first paragraph of Article 7 of Decision No 1/80 has not yet been fulfilled, the Member States are entitled to draw the appropriate conclusions from the fraudulent conduct of that worker with respect to his family members. However, if the latter have acquired an autonomous right of access to the employment market of the host Member State and, as a corollary, a right of residence there, those rights may no longer be called into question on account of irregularities which, in the past, affected the Turkish worker’s right of residence. Any other solution would be contrary to the principle of legal certainty which requires, particularly, that rules of law be clear, precise and predictable in their effects, in particular where they may have negative consequences on individuals. There can be only two kinds of restrictions on the rights conferred by the first paragraph of Article 7 of Decision No 1/80 on members of a Turkish worker’s family who fulfil the conditions laid down in that paragraph, namely, either a restriction based on the presence of the Turkish migrant in the host Member State where he constitutes, on account of his own conduct, a genuine and serious threat to public policy, public security or public health, in accordance with Article 14(1) of that decision, or a restriction based on the fact that the person concerned has left the territory of that State for a significant length of time without legitimate reason. The exhaustive nature of those restrictions would be undermined if the national authorities were able to make subject to conditions, limit or disregard the autonomous rights acquired by the family members of migrant workers by means of a re-examination or a fresh assessment of the circumstances in which the right to enter and right of residence were granted to the latter. (see paras 58-60, 62-64, operative part 3)