7.

From the outset the Commission adopted a very liberal position. In the course of the proceedings it moved towards an even broader interpretation of the provisions in question. In its written observations the Commission stated that it was ‘clear that the rights to free movement of the members of migrant workers' families are not rights which pertain to those members but consequential rights’. At the same time the Commission noted that ‘the severance of special family links with the migrant worker also deprives the members of the family of the right to free movement established under Community law’. It explained its view as follows : ‘If a migrant worker divorces, his spouse loses her status as a member of the family of a migrant worker and may no longer rely on the rights provided for in favour of those persons’. The Commission points out that the Diattas are in fact still married and that there is nothing to suggest that under Article 10, in addition to being married, the spouses must live together in a common dwelling. The Community legislature could not have intended to make the exercise of the right to free movement subject to a requirement which is derived from family law and which varies according to the Member States. It adds that such a restrictive interpretation of Article 10 conflicts with Article 11 since a migrant worker's spouse cannot exercise her right to seek employment throughout the territory unless she also has the possibility of living in a place other than that where the worker resides. In order that his family may qualify for the right of residence under Article 10, the worker must have available normal accommodation. There is no provision which states that in addition that accommodation must be shared. The existence of that accommodation is a condition which represents ‘a compromise between, on the one hand, the authorities' concern ... and, on the other hand the fundamental right to freedom of movement.’ The Commission proposed at that stage of the procedure that the Court should reply as follows: ‘(1) Article 10 (1) and (3) of Regulation No 1612/68 must be interpreted as meaning that the spouse of a migrant worker is entitled to reside in the Member State in which the migrant worker is employed only if she occupies normal housing within the meaning of Article 10 (3) of that regulation. On the other hand, it is not necessary for the migrant worker's spouse to live under the same roof as the worker. (2) Article 11 of Regulation No 1612/68 establishes for spouses of nationals of Member States who work and live in the territory of another Member State the right to exercise an activity as an employed person throughout the territory of that Member State, subject to the sole condition that the spouses have the right of residence under Article 10 of Regulation No 1612/68.’ At the sitting, the Commission went further. In its view the family relationship and the existence of accommodation, though not necessarily shared, are clearly the two conditions laid down for entry, but the severance of the family relationship — in this instance the marital relationship — should not have the effect of automatically withdrawing ‘the protection of Community law’ from the members of the family who benefited from it. The reply proposed by the Commission, in its final version, is therefore as follows: — Article 10 must be interpreted as meaning that the spouse of a migrant worker may reside in the Member State where the worker is employed only if adequate accommodation is made available to her. — The spouse's right of residence and the right to work which she has under Article 11 is not extinguished merely because the spouse separates indefinitely from the migrant worker and takes separate accommodation.