Opinion of the Advocate General — ECLI:EU:C:2010:413
Date: 2010-07-08
Language of the case: German
Subject matter: Association Agreement;External relations;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

summary. Where the national authorities seek to expel a person under that article, they must assess the personal conduct of the offender and whether it constitutes a present, genuine and effectively serious threat to public policy and security, and, in addition, they must observe the principle of proportionality. In particular, a measure ordering expulsion based on Article 14(1) may be taken only if the personal conduct of the person concerned indicates a specific risk of new and serious prejudice to the requirements of public policy. Such a measure cannot be ordered automatically following a criminal conviction and with the aim of general deterrence. (48) A national court which is called upon to review the lawfulness of an order for expulsion in these circumstances must take into consideration factual matters which occurred after the final decision of the competent authorities which may point to the cessation or diminution of the present threat which the conduct of the person concerned constitutes to the requirements of public policy. (49) 76. All procedural requirements under both European Union and national law must, of course, be observed. 77. Against that background, whether Article 14(1) of Decision No 1/80 has any application to the facts in the main proceedings, as they now stand, is a question for the national court alone. Conclusion 78. In the light of all of the foregoing, I propose that the Court answer the questions referred by the Bundesverwaltungsgericht as follows: (1) The right of residence and employment acquired as a member of the family pursuant to the second indent of the first paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council by the spouse of a Turkish worker who is duly registered as belonging to the labour force of a Member State is retained even after a divorce. (2) It is not an abuse of rights to plead the right of residence derived from a former wife under the second indent of the first paragraph of Article 7, where the person in question raped and injured her after acquiring rights thereunder and the offence was punished with a suspended term of imprisonment of two years. 1 – Original language: English. 2 – Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council created under the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963. 3 – Agreement establishing an association between the EEC and Turkey, signed at Ankara on 12 September 1963. 4 – Additional Protocol signed at Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1972 L 293, p. 1; no official translation has been published in English). 5 – See, in that regard, Case C‑136/03 Dörr and Ünal [2005] ECR I‑4759, paragraph 69. The procedural guarantees set out in Articles 8 and 9 of Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1963-1964, p. 117) apply to Turkish nationals whose legal status is governed by Article 6 or Article 7 of Decision No 1/80. Article 9(1) of that directive provides, essentially, that save where there is a full right of appeal to a court of law, having suspensory effect, and save in cases of urgency a decision refusing renewal of a residence permit or ordering the expulsion of the holder of a residence permit is not to be taken by the national authorities until an opinion has been obtained from a competent authority of the host country, before which the person concerned enjoys such rights of defence and of assistance and representation as the domestic law of that country provides. Although it appears that Article 9(1) applied to the decision to expel Mr Bozkurt, no opinion was ever obtained from the competent authority as that provision requires. Directive 64/221 was repealed by Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, with corrigendum OJ 2004 L 229, p. 35) with effect from 30 April 2006. 6 – See, among many, Case 36/79 Denkavit Futtermittel [1979] ECR 3439, paragraph 12, and Case C‑433/05 Sandström [2010] ECR I‑0000, paragraph 35. 7 – See, among many, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 59, and Case C‑440/08 Gielen [2010] ECR I‑0000, paragraph 27. 8 – See, in that regard, Case C‑171/95 Tetik [1997] ECR I‑329, paragraph 38. 9 – See Case C‑325/05 Derin [2007] ECR I‑6495, paragraph 47. 10 – For a fuller analysis of the background to Articles 6 and 7 of Decision No 1/80, see my Opinion in Case C‑484/07 Pehlivan, delivered on the same date as this Opinion, point 29 et seq. 11 – See Case C‑275/02 Ayaz [2004] ECR I‑8765, paragraph 34. 12 – See, inter alia, Case C‑351/95 Kadiman [1997] ECR I‑2133, paragraph 29. The reasoning applied by the Court here mirrors its earlier reasoning in relation to Article 6 of Decision No 1/80: see Case C-192/89 Sevince [1990] ECR I-3461, paragraph 29, and Case C-237/91 Kus [1992] ECR I-6781, paragraph 22. 13 – See Kadiman, cited in footnote 12 above, paragraphs 33 and 41. For a fuller analysis of the conditions which a host Member State is entitled to impose during the period in question, see my Opinion in Pehlivan, cited in footnote 10 above, point 39 et seq. 14 – See Kadiman, cited in footnote 12 above, paragraphs 35 and 36. 15 – See, to that effect, Kadiman, cited in footnote 12 above, paragraphs 35 and 36. 16 – Case C‑329/97 [2000] ECR I‑1487. 17 – Paragraphs 38 and 39. 18 – Paragraphs 42 and 43. 19 – Case C‑65/98 [2000] ECR I‑4747. 20 – Paragraph 28 (emphasis added). 21 – See Ergat, cited in footnote 16 above, paragraph 40, and Case C‑467/02 Cetinkaya [2004] ECR I‑10895, paragraph 31. 22 – See paragraph 41. See also Case C‑453/07 Er [2008] ECR I‑7299, paragraph 27. 23 – See Case C‑210/97 Akman [1998] ECR I‑7519, paragraph 51. 24 – See Er, cited in footnote 22 above, paragraph 31, which points out that Article 7 differs in this regard from Article 6(1) of Decision No 1/80. See also Case C‑373/03 Aydinli [2005] ECR I‑6181, paragraph 31, and, Derin, cited in footnote 9 above, paragraph 56. 25 – See point 71 et seq. below. 26 – See, inter alia, Ergat, cited in footnote 16 above, paragraph 48; Case C‑349/06 Polat [2007] ECR I‑8167, paragraph 21; and Case C‑337/07 Altun [2008] ECR I‑10323, paragraph 62. 27 – See, inter alia, Cetinkaya, cited in footnote 21 above, paragraph 38. 28 – Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), as amended. With effect from 30 April 2006, Articles 10 and 11 of that regulation were repealed and replaced by Directive 2004/38. 29 – See Ayaz, cited in footnote 11 above, paragraph 38. 30 – Case 59/85 [1986] ECR 1283. 31 – See paragraph 16. 32 – See point 46 above. 33 – Cited in footnote 9 above. 34 – Paragraphs 62 to 67. 35 – Paragraph 68. 36 – See point 71 et seq. below. 37 – See, among many, Case C‑321/05 Kofoed [2007] ECR I‑5795, paragraph 38. 38 – See, inter alia, Case C‑367/96 Kefalas [1998] ECR I‑2843, paragraph 20; Case C‑373/97 Diamantis [2000] ECR I‑1705, paragraph 33; and Case C‑16/05 Tum and Dari [2007] ECR I‑7415, paragraph 64. 39 – See the Opinion of Advocate General Tizzano in Case C‑200/02 Zhu [2004] ECR I‑9925, point 115. 40 – See point 25 et seq. above. 41 – See, as regards Regulation No 1612/68, Case C‑109/01 Akrich [2003] ECR I‑9607, paragraph 61. See, as regards Article 6 of Decision No 1/80, Case C‑285/95 Kol [1997] ECR I‑3069, paragraph 25. 42 – In my opinion, even after the expiry of the periods laid down in Article 7. See my Opinion in Pehlivan, cited in footnote 10 above, point 89 et seq. 43 – Case C‑110/99 [2000] ECR I‑11569. 44 – See paragraphs 52 and 53. 45 – Paragraph 50. See also Kofoed, cited in footnote 37 above, paragraph 38, where the Court referred to the abusive conduct in question being ‘solely’ for the purpose of obtaining an advantage. 46 – Cited in footnote 43 above. 47 – See point 13 and footnote 5 above. 48 – See Derin, cited in footnote 9 above, paragraph 74. 49 – See Cetinkaya, cited in footnote 21 above, paragraph 47.