OPINION OF ADVOCATE GENERAL

BOT

delivered on 14 April 2011 ( )

Case C‑371/08

Nural Ziebell

v

Land Baden-Württemberg

(Reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Germany))

(EEC-Turkey Association Agreement – Decision No 1/80 of the Association Council – First paragraph of Article 7 – Turkish national who has resided on the territory of the host Member State for 10 years preceding the expulsion decision – Convictions for criminal offences – Extension of the scope of Article 28(3)(a) of Directive 2004/38/EC – Expulsion only on imperative grounds of public security)





1. The question referred for a preliminary ruling in the present case seeks to ascertain whether the strengthened protection against expulsion established by Article 28(3)(a) of Directive 2004/38/EC ( ) for Union citizens may be applied to a Turkish national whose legal status derives from the second indent of the first paragraph of Article 7 of Decision No 1/80 of the Association Council ( ) of 19 September 1980 on the development of the Association, ( ) where he has resided on the territory of the host Member State for 10 years preceding the expulsion decision taken against him by the competent national authorities.

2. Under the second indent of the first paragraph of Article 7 of Decision No 1/80, a member of the family of a Turkish worker who has been authorised to join him on the territory of the host Member State and who has been resident there for at least five years enjoys free access to any paid employment of their choice on that territory.

3. Article 28(3)(a) of Directive 2004/38 provides that an expulsion decision may be taken against a Union citizen who has resided on the territory of the host Member State for 10 years preceding that decision only on imperative grounds of public security.

4. In this Opinion I will set out the reasons why I consider that a Turkish national may not enjoy this strengthened protection. I will then explain that, in my view, the Court’s settled case-law in this area must be applied in the usual manner.

5. I will therefore propose that the Court rule that Article 14(1) of Decision No 1/80 must be interpreted as meaning that it does not preclude a Member State from taking an expulsion measure against a Turkish national whose legal status derives from the second indent of the first paragraph of Article 7 of Decision No 1/80, where he has resided on the territory of that State for 10 years preceding that measure, in so far as his personal conduct constitutes at present a genuine and sufficiently serious threat affecting a fundamental interest of society, which it will be for the national court to assess.

I – Legislative framework

A – European Union law

1. The Association Agreement

6. In order to regulate freedom of movement for Turkish workers on the territory of the European Economic Community, an Association Agreement was concluded on 12 September 1963 between the Community and the Republic of Turkey.

7. According to the preamble to that agreement, the Agreement seeks to improve living conditions in Turkey and in the Community through accelerated economic progress and the harmonious expansion of trade and to reduce the disparity between the economy of the Republic of Turkey and the economies of the Member States of the Community.

8. Under Article 2(1) of that Agreement, its aim is to promote the continuous and balanced strengthening of trade and economic relations between the parties, while taking full account of the need to ensure an accelerated development of the economy of the Republic of Turkey and to improve the level of employment and living conditions of the Turkish people.

9. In Chapter 3 of Title II of the Association Agreement, entitled ‘Other economic provisions’, Article 12 provides that the contracting parties agree to be guided by articles of the EC Treaty for the purpose of progressively securing freedom of movement for workers between them.

10. The freedom of movement for workers envisaged by that Agreement must be progressively secured on the basis of arrangements decided by the Association Council, whose task is to ensure the implementation and the progressive development of the Association. ( )

2. Decision No 1/80

11. According to the third recital in its preamble, Decision No 1/80 seeks, inter alia, to improve the treatment accorded workers and members of their families in relation to the arrangements introduced by Decision No 2/76 of the Association Council of 20 December 1976.

12. Thus, Article 7 of Decision No 1/80 reads as follows:

‘The members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State, who have been authorised to join him:

– shall be entitled – subject to the priority to be given to workers of Member States of the Community – to respond to any offer of employment after they have been legally resident for at least three years in that Member State;

– shall enjoy free access to any paid employment of their choice provided they have been legally resident there for at least five years.

Children of Turkish workers who have completed a course of vocational training in the host country may respond to any offer of employment there, irrespective of the length of time they have been resident in that Member State, provided one of their parents has been legally employed in the Member State concerned for at least three years.’

13. Article 14(1) of Decision No 1/80 provides that the provisions of Chapter II, section 1 of the decision, including Article 7, ‘shall be applied subject to limitations justified on grounds of public policy, public security or public health’.

3. Directive 2004/38

14. Whilst Directive 64/221/EEC ( ) applied to any national of a Member State who resided in or travelled to another Member State, either in order to pursue an activity as an employed or self-employed person, or as a recipient of services, ( ) Directive 2004/38 goes beyond this sectoral approach and introduces the notion of Union citizen with regard to movement and residence on the territory of the Member States.

15. Directive 2004/38 seeks to simplify and codify the existing legislation in this area. Thus, it abolishes the obligation for Union citizens to obtain a residence card, introduces a right of permanent residence for those citizens and lays down the possibility for the Member States to restrict residence by nationals of other Member States on their territory.

16. In that regard, Union citizens enjoy strengthened protection against expulsion. The directive lays down strict limitations on the powers of the Member States to curtail Union citizens’ right of movement and of residence.

17. Thus, Article 28(3)(a) of Directive 2004/38, which concerns protection against expulsion, provides:

‘3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:

(a) have resided in the host Member State for the previous 10 years …’

B – National law

18. Paragraph 53 of the Law on the residence, employment and integration of foreign nationals in the Federal territory (Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet) of 30 July 2004, ( ) as amended most recently by Paragraph 1 of the Law implementing European Union directives on the right of residence and asylum (Gesetz zur Umsetzung aufenthalts- und asylrechtlicher Richtlinien der Europäischen Union) of 19 August 2007, ( ) provides that a foreign national must be expelled where, after being convicted of one or more intentional offences, he has been definitively sentenced to at least three years’ imprisonment or youth custody.

19. That provision also provides that a foreign national must also be expelled where, after being convicted of a number of intentional offences within a period of five years, he has been definitively sentenced to a number of terms of imprisonment or youth custody amounting to at least three years or where, on the occasion of the most recent definitive conviction, a term of preventive detention was ordered.

20. In addition, under Paragraph 55 of the Aufenthaltsgesetz, a foreign national may be expelled where his presence endangers public security, public order or other important interests of the Federal Republic of Germany.

21. However, provision is made for special protection against expulsion. Thus, Paragraph 56(1) of the Aufenthaltsgesetz states that a foreign national enjoys such protection if he holds a permanent residence permit and has been lawfully resident in the Federal territory for at least five years. Expulsion may be based only on serious grounds of public policy or public security. Grounds of public security or public policy generally exist in the cases covered by Paragraphs 53 and 54 of the Aufenthaltsgesetz. Where the conditions laid down in Paragraph 53 of the Aufenthaltsgesetz are satisfied, the foreign national must, as a rule, be expelled. Where the conditions laid down in Paragraph 54 of the Aufenthaltsgesetz are satisfied, the decision as to his expulsion is a discretionary matter.

22. Paragraph 1 of the Law on general freedom of movement for Union citizens (Gesetz über die allgemeine Freizügigkeit von Unionsbürgern) of 30 July 2004, ( ) as amended most recently by Paragraph 2 of the Law implementing European Union directives on the right of residence and asylum, ( ) states that the Freizügigkeitsgesetz/EU governs the entry and residence of nationals of other Member States of the European Union (Union citizens) and their family members.

23. Under Paragraph 6(1) of the Freizügigkeitsgesetz/EU, only on grounds of public policy, public security or public health may the right laid down in Paragraph 2(1) be declared forfeit, a document attesting to a right of residence or permanent residence under Community law be withdrawn, or a residence permit or permanent residence permit be revoked.

24. Paragraph 6(5) of the Freizügigkeitsgesetz/EU provides that, in the case of Union citizens and their family members who have resided on Federal territory for the previous 10 years, and in the case of minors, that declaration may be made only on imperative grounds of public security. That rule does not apply to minors where the forfeiture of the right of residence is necessary for the good of the child. In addition, imperative grounds of public security may exist only where the person concerned, after being convicted of one or more intentional offences, has been definitively sentenced to at least five years’ imprisonment or youth custody or where, on the occasion of the most recent definitive conviction, a term of preventive detention was ordered, where the security of the Federal Republic of Germany is concerned or where the person concerned poses a terrorist threat.

II – Facts and the question referred for a preliminary ruling

25. Mr Ziebell ( ) is a Turkish national, born in Germany in 1973. He resided with his parents. His father, also a Turkish national, was lawfully resident in the Federal Republic as a worker. After his father’s death in 1991, his mother was admitted to a nursing home. To this date, Mr Ziebell does not seem to have lived with any family members, as his siblings live in separate households.

26. Mr Ziebell has held an unlimited residence permit since 28 January 1991, which has continued to be valid as an unlimited permanent residence permit. He left school without having obtained a school-leaving qualification. He occasionally took temporary jobs which were always interrupted by periods of unemployment and imprisonment. He has not been in any gainful employment since July 2000.

27. In 1991 Mr Ziebell began smoking marijuana. As from 1998 he regularly took heroin and cocaine. He underwent a methadone programme in 2001 and in-patient drug therapy in 2003, which were both unsuccessful.

28. From 1993 Mr Ziebell was convicted on several occasions for various offences, including gang-related robbery, grievous bodily harm, intentional possession of a prohibited object, theft and aggravated theft. He was in prison serving sentences from January 1993 to December 1994, from August 1997 to October 1998, from July to October 2000, from September 2001 to May 2002, and from November 2005 to October 2008. On 28 October 2008, he began therapeutic treatment in a specialised institution.

29. On 28 October 1996, Mr Ziebell received from the Ausländerbehörde (Aliens Department) a warning under the law relating to foreign nationals in connection with the offences that he had committed at that time.

30. By decision of 6 March 2007, the Regierungspräsidium Stuttgart (Stuttgart Regional Administration) issued an order for Mr Ziebell’s expulsion and ordered its immediate enforcement.

31. According to the Regierungspräsidium Stuttgart, Mr Ziebell’s legal status derives from the second indent of the first paragraph of Article 7 of Decision No 1/80, since he was born on German territory and in the past lived lawfully in his family’s household for at least five years as the child of a Turkish worker. Since that legal status has not come to an end, he enjoys protection against expulsion under Article 14(1) of Decision No 1/80.

32. Under that provision, expulsion can be ordered only if his personal conduct constitutes a genuine and sufficiently serious threat affecting a fundamental interest of society.

33. The Regierungspräsidium Stuttgart justified its expulsion decision on the basis of the fact that such a threat existed in the present case in view of the repeated offences committed by him.

34. Furthermore, the Regierungspräsidium Stuttgart considers that Mr Ziebell cannot rely on the special protection against expulsion arising from Article 28(3)(a) of Directive 2004/38/EC, since that provision applies only to Union citizens.

35. Mr Ziebell challenged his expulsion. By judgment of 3 July 2007, the Verwaltungsgericht Stuttgart (Administrative Court, Stuttgart) (Germany) dismissed his action brought against the expulsion.

36. Mr Ziebell brought an appeal against that judgment before the Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court, Baden-Württemberg) (Germany). He is seeking amendment of that judgment and annulment of the expulsion decision of 6 March 2007.

37. The Verwaltungsgerichtshof Baden-Württemberg has decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is the protection against expulsion provided for in Article 14(1) of Decision No 1/80 ... and enjoyed by a Turkish national, whose legal status derives from the second indent of the first paragraph of Article 7 of [that decision] and who has resided for the previous 10 years in the Member State in respect of which this legal status applies, to be determined in accordance with Article 28(3)(a) of Directive 2004/38 ..., as implemented by the relevant Member State, with the result that expulsion is permitted only on imperative grounds of public security, as defined by Member States?’

III – My analysis

38. By its question, the referring court essentially seeks to ascertain whether Article 14(1) of Decision No 1/80 must be interpreted as meaning that an expulsion decision taken by the authorities of a Member States against a Turkish national whose legal status derives from the second indent of the first paragraph of Article 7 of Decision No 1/80 and who has resided on the territory of that State for 10 years preceding that decision may be based only on imperative grounds of public security.

39. The Court has already been called on to interpret Article 14(1) of Decision No 1/80 on a number of occasions. For example, in Nazli ( ) the Court ruled that, when determining the scope of the public policy exception provided for by that provision, reference should be made to the interpretation given to that exception in the field of freedom of movement for workers who are nationals of a Member State. ( ) The Court added that such an approach is all the more justified because Article 14(1) is formulated in almost identical terms to Article 39(3) EC. ( )

40. Thus, following the line of case-law developed in the field of freedom of movement for workers who are nationals of the Member States, and more specifically in the context of Directive 64/221, the Court has held repeatedly that the concept of public policy presupposes, in addition to the disturbance of the social order which any infringement of the law involves, the existence of a genuine and sufficiently serious threat affecting a fundamental interest of society. ( )

41. In Mr Ziebell’s submission, since the Court has always applied to Turkish nationals whose legal status derives from a provision of Decision No 1/80 the principles applicable in the field of freedom of movement and of residence for nationals of the Member States, he considers that Article 28(3)(a) of Directive 2004/38 must be applied by analogy to the interpretation of Article 14(1) of Decision No 1/80 where a Turkish national has spent 10 years preceding the expulsion decision on the territory of the Member State. Consequently, applied to his personal situation, such an expulsion measure is unlawful as it is not justified on imperative grounds of public security within the meaning of Article 28(3)(a) of Directive 2004/38.

42. I consider that such an analysis cannot succeed, for the following reasons.

43. As the Court ruled in Eddline El-Yassini, ( ) an international treaty is to be interpreted not solely by reference to the terms in which it is worded but also in the light of its objectives. ( ) The Court added that Article 31 of the Vienna Convention of 23 May 1969 on the Law of Treaties provides in that respect that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. ( )

44. The aim of the Association Agreement is to promote the continuous and balanced strengthening of trade and economic relations between the Republic of Turkey and the European Union. ( )

45. Three stages have been established in order to attain this aim. During the preparatory stage the Republic of Turkey must strengthen its economy so as to enable it to fulfil the obligations which will devolve upon it during the other two stages. ( ) The aim of the transitional stage is to establish progressively a customs union between the parties and to align their economic policies. ( ) Lastly, the final stage is based on a customs union and entails closer coordination of the economic policies of the Republic of Turkey and the European Union. ( )

46. In view of the aim of the Association Agreement and of these three stages, there is no doubt as to the exclusively economic purpose of the Association Agreement.

47. Furthermore, it should be noted that, in order to implement the transitional stage, that agreement provides, inter alia, that the Contracting Parties agree to be guided by Articles 39 to 41 EC for the purpose of progressively securing freedom of movement for workers between them. ( )

48. Similarly, Decision No 1/80, the aim of which is the revitalisation and development of the Association, ( ) seeks to improve the social treatment accorded workers and members of their families. ( )

49. It follows that it is only in their capacity as workers or members of a worker’s family that Turkish nationals are covered by the Association Agreement and thus derive their legal status from Decision No 1/80.

50. That is why the Court has interpreted the public policy exception provided for by Article 14(1) of that decision with reference to the interpretation given to that exception in the field of freedom of movement for workers who are nationals of a Member State, and more specifically in the context of Directive 64/221. ( )

51. At that time, status as a worker was the common denominator between the Association Agreement and Directive 64/221, Article 1(1) of which applied to any national of a Member State who resided in or travelled to another Member State, either in order to pursue an activity as an employed or self-employed person, or as a recipient of services.

52. However, Directive 2004/38 goes beyond the purely economic context and the context of workers. That directive was adopted specifically in order to remedy the sector-by-sector, piecemeal approach to the right of free movement and residence of Union nationals which existed previously. ( ) Thus, Directive 2004/38 no longer applies to a single group of persons, namely workers, but, in accordance with Article 1(a) thereof, lays down the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens ( ) and their family members.

53. Directive 2004/38 introduces, inter alia, a right of permanent residence for nationals of the Member States ( ) and establishes a system of protection against expulsion measures based on the degree of integration of those persons on the territory of the host Member State, ( ) irrespective of their status as a worker. The only relevant status for the purposes of the directive is that of Union citizen, which is acquired when a person’s State of origin accedes to the European Union.

54. Whilst it is true that, under the Association Agreement, Turkish nationals enjoy specific rights which confer on them a special status compared with other third-country nationals, the fact remains that they do not have the status of Union citizens and that the legal scheme applicable to them is not comparable to the scheme applicable to Union citizens. Consequently, to apply the strengthened protection arrangements introduced by Directive 2004/38 to Turkish nationals would amount to equating them with Union citizens, which was not the intention of the parties to the Association Agreement.

55. To allow the application of those strengthened protection arrangements would give rise to the creation of new rights for Turkish nationals, even though it is for the Association Council alone to make appropriate modifications for the progressive attainment of freedom of movement for workers in accordance with political and economic considerations. ( ) If it applied Article 28(3)(a) of that directive mutatis mutandis to Mr Ziebell’s case, the Court would exceed its powers.

56. Even though the strengthened protection arrangements introduced by that directive are not applicable to Mr Ziebell’s case, I take the view that he is nevertheless not left without any protection against an expulsion measure taken on grounds of public policy. I consider that the case-law developed by the Court in this regard must be applied in the usual manner.

57. Directive 64/221 was repealed and replaced by Directive 2004/38, thus eliminating the common denominator between the Association Agreement and the first directive, namely status as a worker. However, the fact remains that the principles laid down in Articles 39 EC to 41 EC must be extended, so far as possible, to Turkish nationals who enjoy the rights conferred by Decision No 1/80. ( )

58. Consequently, in the determination of the scope of the public policy exception provided for in Article 14(1) of that decision, reference should be made to the interpretation given to that exception in the field of freedom of movement for workers who are nationals of a Member State of the Union. ( )

59. As the Court has recently emphasised, that exception is a derogation from the fundamental principle of freedom of movement for persons, which must be interpreted strictly, and its scope cannot be determined unilaterally by the Member States. ( )

60. Following its settled case-law in this area, the Court therefore reaffirmed that reliance by a national authority on the concept of public policy presupposes the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to a fundamental interest of society. ( )

61. Furthermore, measures taken on grounds of public policy or public security are to be based exclusively on the personal conduct of the individual concerned. Accordingly such measures cannot be ordered automatically on general preventive grounds following a criminal conviction. ( ) In addition, the circumstances which gave rise to a criminal conviction must be evidence of personal conduct constituting a present threat to the requirements of public policy. ( )

62. It is therefore having regard to Mr Ziebell’s present situation that the national court will have to examine whether his conduct still constitutes a threat to the requirements of public policy. For example, the national court will have to take into account the arguments put forward by Mr Ziebell at the hearing, namely that he has married, that he has not committed any further offences against the law, that he is currently a self-employed worker and that his sentence was commuted to probation by a judgment of 16 June 2009, as his drug-related problems have apparently been resolved.

63. Furthermore, I consider that the years spent on the territory of the host Member State must also be taken into account by the national court.

64. Given that Article 12(3) of Directive 2003/109/EC ( ) provides that regard must be had to that factor before the adoption of an expulsion measure taken against a third-country national, I consider that the same must be true, a fortiori, as regards Turkish nationals who enjoy a special status within the Union, halfway between the status of a national of a Member State and a third-country national.

65. This would seem especially important as Mr Ziebell was born and has always lived in Germany. It is therefore reasonable to think that he has close family and economic links with the Federal Republic of Germany. Consequently, an expulsion decision could have serious repercussions, inter alia, on his family life. The Court has stated that it is necessary to take into account the fundamental rights whose observance it ensures where an expulsion decision may obstruct the exercise of the freedom of movement for workers. ( ) In particular, the right to respect for private and family life is protected by Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, and is among the fundamental rights which are protected by the Court in Community law. ( )

66. Consequently, in the light of the foregoing considerations, I take the view that Article 14(1) of Decision No 1/80 must be interpreted as meaning that it does not preclude a Member State from taking an expulsion measure against a Turkish national whose legal status derives from the second indent of the first paragraph of Article 7 of Decision No 1/80, where he has resided on the territory of that State for the 10 previous years, in so far as his personal conduct constitutes at present a genuine and sufficiently serious threat affecting a fundamental interest of society, which it will be for the national court to assess.

IV – Conclusion

67. In the light of the foregoing considerations, I propose that the Court answer the question asked by the Verwaltungsgerichtshof Baden-Württemberg as follows:

Article 14(1) of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey, of the one part, and by the Member States of the EEC and the Community, of the other part, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, must be interpreted as meaning that it does not preclude a Member State from taking an expulsion measure against a Turkish national whose legal status derives from the second indent of the first paragraph of Article 7 of Decision No 1/80, where he has resided on the territory of that State for the 10 previous years, in so far as his personal conduct constitutes at present a genuine and sufficiently serious threat affecting a fundamental interest of society, which it will be for the national court to assess.