Opinion of Mr Advocate General Mischo delivered on 17 January 1989. - Commission of the European Communities v Federal Republic of Germany. - Failure of a State to fulfil its obligations - Migrant workers - Extension of residence permit for family members - Requirement that the family live in normal housing conditions. - Case 249/86.



European Court reports 1989 Page 01263

Swedish special edition Page 00031

Finnish special edition Page 00043



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . In these proceedings the Commission seeks a declaration by the Court that the Federal Republic of Germany has failed to fulfil its obligations under the Treaty establishing the European Economic Community, in particular Article 48 thereof, and under Article 10(3 ) of Regulation No 1612/68 of the Council of 15 October 1968 ( 1 ) by adopting and maintaining in force legislative provisions which lay down or permit, as a prerequisite for the renewal of a residence permit for members of the family of migrant workers of the Community, the requirement that they live in appropriate housing not only when they install themselves with the migrant worker concerned in the territory of the Federal Republic of Germany but for the entire duration of their residence .

2 . The German legislation which is challenged is the Aufenthaltsgesetz EWG ( Law on the residence of EEC nationals ), which, in the version in force from 31 January 1980, ( 2 ) provides in Article 7 :

"( 1 ) A residence permit shall be granted on demand to members of the family ( Paragraph 1(2 ) ) of a person who has himself such a permit and has housing for himself and the members of his family of a nature considered appropriate according to the criteria applied in that regard in the place of residence .

...

( 5 ) ...

A residence permit granted to members of the family of a worker shall be extended on demand for a period of at least five years if the conditions for the issue thereof continue to be fulfilled .

...

( 9 ) The period of validity of a residence permit may subsequently be reduced if the conditions required for its issue are no longer fulfilled ." ( 3 )

Article 10 of Regulation No 1612/68 provides as follows :

"1 . The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State :

( a ) his spouse and their descendants who are under the age of 21 years or are dependants;

( b ) dependent relatives in the ascending line of the worker and his spouse .

2 . Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes .

3 . For the purposes of paragraphs 1 and 2, the worker must have available for his family housing considered as normal for national workers in the region where he is employed; this provision, however, must not give rise to discrimination between national workers and workers from the other Member States ."

3 . In the Commission' s view it follows from the actual wording of Article 10(3 ), which should be interpreted restrictively, that the requirement of normal housing is only applicable when the members of the family of the migrant worker first install themselves under his roof, not for the entire duration of their residence . It adds that even if Article 10(3 ) were interpreted as making that a permanent requirement, the German legislation would not conform to that article because it leads to discrimination between migrant workers and German nationals, since the latter are not subject to any penalty equivalent to that which could be incurred by the members of the family of a migrant worker, that is to say, being simply sent back to their country of origin .

4 . The German Government, on the other hand, considers that the purpose of Article 10(3 ) is to regulate the right of residence over the entire period during which the worker lives in the host Member State . In its view, the very concept of installation (" Wohnung nehmen ") suggests an element of duration . The purpose of Article 10 is to enable members of the family to live in a settled way with the worker . There is no reason to require normal housing solely at the time when the family is reunited and then accept the possibility that that housing might subsequently deteriorate to the point where it became abnormal . The permanent character of the requirement in Article 10(3 ) is also justified by the more general objectives pursued, namely protection of the worker himself and protection of public security and public policy .

5 . According to the German Government, moreover, in administrative practice there is no discrimination against migrant workers because if housing conditions are unlawfully overcrowded German citizens are also liable to penalties; these are generally imposed by the local authorities on the basis of legislation of the Laender . It is obvious that no country can deport its own nationals from its territory .

6 . During the course of the oral procedure the German Goverment' s agent laid particular emphasis on the fact that only if a foreign worker systematically refused to procure proper housing for himself, in particular by declining offers of help from the competent administrative authorities and by not taking advantage of the subsidies which are available to any person living on German territory, would deportation be ordered . In no case would that be the automatic consequence of a factual situation, namely inadequate housing; it presupposes persistent improper conduct, as described above . According to the interpretation given by the German authorities to these provisions, non-renewal of a residence permit is only possible if the criteria laid down by the Court with regard to deportation on grounds of public policy are fulfilled . Even though it is not impossible that a local authority might sometimes interpret the texts erroneously, the provisions in issue in reality constitute merely an ultima ratio, a sort of "sword of Damocles" intended to encourage migrant workers to comply with the rule .

7 . Before analysing the scope of Article 10(3 ), I shall examine whether the explanations put forward by the Federal Republic of Germany as regards the way in which the contested provisions are applied in practice may be taken into account by the Court .

8 . In this connection it should be pointed out first of all that according to the consistent case-law of the Court mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, are not sufficient to preclude a failure to fulfil an obligation if the national legislation contains a provision which is incompatible with Community law ( most recently, see the judgment of 15 March 1988 in Case 147/86 Commission v Hellenic Republic (( 1988 )) ECR 1637, paragraphs 15 and 16 ).

9 . Moreover, it follows from Article 3 of Directive 64/221/EEC of the Council 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 ( Official Journal, English Special Edition 1963-64, p . 117 ) and from the case-law of the Court that measures taken on grounds of public policy must be based exclusively on the personal conduct of the individual concerned .

10 . The passages of the German law which are in issue are aimed not at the worker himself but solely at the members of his family . It is they who are liable to be deported, whereas in most cases they will have played little or no part in the decision to occupy housing which lacks sufficient room or is insalubrious .

11 . Since the abovementioned explanations given by the Federal Republic of Germany concern only the conditions under which the migrant worker himself could be made the subject of a deportation order on the grounds of persistent refusal to procure appropriate housing for himself and his family, those explanations cannot therefore be taken into account in this context .

12 . I thus return to the question whether the German law as it stands, subjecting the right of residence of members of the family of a migrant worker to a permanent condition of adequate housing, compliance with which can be verified at any time and in particular when a residence permit is being extended, is compatible with Community law .

13 . In this connection I would like to make two preliminary remarks about the scope of the case .

14 . It is clear, first of all, that compliance with the housing requirement may be verified whenever an additional member of the worker' s family arrives, even if this is a long time after the worker himself or the first members of his family who arrived after him have installed themselves . If their housing is thereby rendered inadequate it is only that additional family member who can be refused the right to install himself with the worker . The arrival of a new member cannot serve as a pretext for refusing to extend or for withdrawing the residence permit of another member of the family who already lawfully lives there or, a fortiori, that of the worker himself . Thus the only real question is whether a family member who already lives there may be refused an extension of his residence permit or have it withdrawn if the housing can no longer be regarded as normal following another event, such as the birth of a child, a child' s reaching adulthood, or the fact that the family has been forced to move or has voluntarily moved into housing which lacks enough room or is insalubrious .

15 . Secondly, I consider that the Commission' s observation to the effect that the housing requirement is only applicable at the time when a member of the family first arrives in the territory of the host country can obviously not be taken as meaning that the obligation only binds the worker and his family for a few days ( for example until a residence permit has been obtained ) and that afterwards they are free to move out immediately into housing with less room . Such an attitude would amount to an abuse ( 4 ) and could, in my view, give rise to withdrawal of the residence permit . It is clear from the terms used in Article 10, namely "s' installer avec", "stabilirsi con", "to install themselves with" and especially from the German phrase "Wohnung nehmen" that the article refers to a situation, the cohabitation or coresidence of members of the family with the worker who arrived before them, that by definition is intended to have a certain duration .

16 . However, what is meant by "housing considered as normal for national workers in the region where he is employed"? In the German Government' s view ( see its reply to the questions put by the Court, p . 11, second paragraph of point ( e ) ) it is a question of the standard established ( literally "set ") by German workers in the region in question (" der von deutschen Arbeitnehmern regionale gesetzte Standard "), that is to say the average standard that can be determined by considering the type of housing occupied in fact by German employees in the region in question . The German Government also observes that given that the criterion is determined as to its content by the actual situation in the region and that it is therefore variable depending on the local level of social development, by definition in the Federal Republic of Germany there is no provision or measure which obliges German nationals to conform to the housing conditions considered normal for German workers in the region ( page 8, first paragraph of the reply to the Court' s questions ). Finally, the Federal Republic considers there can be no question of discrimination in view of the fact that immigrant workers are not subjected to requirements that are stricter than those resulting from the actual regional situation .

17 . However, that argument does not seem to me to be convincing . The absence of discrimination must, in my opinion, be judged in relation to the requirements imposed on national workers by law or regulation since otherwise objective treatment of each case is no longer adequately guaranteed . Thus housing cannot be let or used in Berlin unless for each person there is a habitable area of 9 m2 and for each child under six years old a habitable area of 6 m2 ( Law of 6 March 1973 ). In Hamburg the habitable area must be at least 10 m2 per person ( Law of 8 March 1982 ). In Bremen the criterion is a volume of 7.5 m3 per child of school age and 15 m3 for anyone older ( Law of 26 July 1910 ). The laws of the Laender also include rules on health conditions . I consider that normal housing within the meaning of Article 10(3 ) is housing which at least meets the criteria thus set out by the legislation applicable to the place of residence . It is in the light of those rules that the competent authorities authorize or refuse entry into the country to members of the family of the worker and it is compliance with those same rules which they subsequently enforce .

18 . The sole purpose of Article 10(3 ) is to ensure that the abovementioned rules are complied with when one or more members of the family enter the country and during the initial period following entry . That article cannot subsequently be relied on to withdraw the residence permit or to refuse renewal of the permit if a new factor is introduced such as the examples given in paragraph 14 above . At that point the family of the migrant worker must be treated in the same way as citizens of the host country . The family may only be subjected to the penalties provided for in the relevant rules concerning nationals who infringe those same rules, because otherwise the prohibition of discimination referred to in the second part of Article 10(3 ) would be infringed .

19 . The following additional arguments can also be invoked in support of the view that members of the family may not be deported from a Member State if their housing conditions become inadequate after entry into the country .

20 . First of all, it is quite clear from the preparatory documents produced by the Commission, in particular the minutes of the 44th meeting of the Council of 29 July 1968, p . 32 ( Document No 1297/68 ( P.V . Cons . 21 ) final ), that whereas the condition concerning "normal housing" was introduced in order to avoid migrant workers being treated favourably in comparison with nationals, the last part of the paragraph was inserted in order to prevent workers from other Member States being discriminated against in comparison with nationals .

21 . Moreover, in its judgment in Joined Cases 115 and 116/81 Adoui and Cornuaille, ( 5 ) the Court made the following remarks concerning penalties that may be imposed on foreigners on grounds of public policy :

"The reservations contained in Articles 48 and 56 of the EEC Treaty permit Member States to adopt, with respect to the nationals of other Member States and on the grounds specified in those provisions, in particular grounds justified by the requirements of public policy, measures which they cannot apply to their own nationals, inasmuch as they have no authority to expel the latter from the national territory or to deny them access thereto . Although that difference of treatment, which bears upon the nature of the measures available, must therefore be allowed, it must nevertheless be stressed that, in a Member State, the authority empowered to adopt such measures must not base the exercise of its powers on assessments of certain conduct which would have the effect of applying an arbitrary distinction to the detriment of nationals of other Member States ."

22 . The Court thus concluded that :

"a Member State may not, by virtue of the reservation relating to public policy contained in Articles 48 and 56 of the Treaty, expel a national of another Member State from its territory or refuse him access to its territory by reason of conduct which, when attributable to the former State' s own nationals, does not give rise to repressive measures or other genuine and effective measures intended to combat such conduct ".

23 . It follows incontestably from the foregoing that a Member State which does not have rules in respect of housing conditions cannot subject migrant workers alone to such rules, even at the time when members of the family first take up residence .

24 . It also follows that a Member State which has such rules but adopts no repressive measures against its own nationals who do not comply with them cannot adopt repressive measures against migrant workers and their families .

25 . In my opinion it further follows that a Member State which adopts repressive measures against its own nationals nevertheless cannot go so far as to withdraw the right of residence from members of a migrant worker' s family if it should prove that the housing that that migrant worker has available becomes inadequate during the family' s residence together .

26 . That is to say, there is no common ground between, on the one hand, a fine or even compulsory eviction from the housing in question and, on the other hand, withdrawal or refusal to extend the residence permit, which is ultimately equivalent to simply sending the persons concerned back to their country of origin .

27 . The Court has already had occasion to state firmly that "among the penalties attaching to a failure to comply with the prescribed declaration and registration formalities, deportation, in relation to persons protected by Community law, is certainly incompatible with the provisions of the Treaty since, as the Court has already confirmed in other cases, such a measure negates the very right conferred and guaranteed by the Treaty ". ( 6 ) In its judgment of 3 July 1980 in Case 157/79 Regina v Pieck (( 1980 )) ECR 2171, the Court also ruled out imprisonment as a penalty for failure to comply with the formalities required as proof of the right of residence of a worker enjoying the protection of Community law ( paragraphs 18 to 20 ). In its judgment of 14 July 1977 in Case 8/77 Sagulo, Brenca and Bakhouche (( 1977 )) ECR 1495, the Court declared in a more general way :

"... although Member States are entitled to impose reasonable penalties for infringement by persons subject to Community law of the obligation to obtain a valid identity card or passport, such penalties should by no means be so severe as to cause an obstacle to the freedom of entry and residence provided for in the Treaty" ( paragraph 12 ).

It should be noted that in its judgments in Watson ( paragraph 21 ) and Pieck ( paragraph 19 ), the Court spoke of :

"a penalty so disproportionate to the gravity of the infringement that it becomes an obstacle to the free movement of persons ".

28 . To live in overcrowded housing conditions is of course a more serious infraction than non-compliance with a formality, but deportation of a member of the family runs directly counter to the very objective of Article 10 of Regulation No 1612/68, which is to contribute to the elimination of obstacles to the mobility of workers, in particular by permitting them to be joined by their family : instead of promoting the reuniting of families it would put an end to it . It is hardly conceivable that a Member State could impose on its own nationals in a case of overcrowded housing a penalty which consisted in separating the occupants, if they are members of the same family . In several Member States, including the Federal Republic of Germany, that would probably be incompatible with constitutional or legislative provisions .

29 . Moreover, in such a case a delicate problem might arise as to which member of the family should be made the subject of a deportation order : the member who was the last to arrive, the member whose residence permit is the first to expire or the child who has passed a certain age-limit, with the result that under the rules the available area per person becomes inadequate from one day to the next .

30 . In its reply to the question put by the Court, the German Government explained further that it was because the housing requirement constitutes an indispensable means of encouraging the social integration of the worker and members of his family in the host country that a Member State cannot confine itself to imposing on them the same penalties as those applicable to its own nationals . It is, however, difficult to understand how deportation could promote that integration .

31 . What the German authorities no doubt mean is that they must be able to use the threat of deportation in order to procure compliance with normal housing conditions . I can perfectly well understand that wish to have available an effective means of exerting pressure, but I think that a threat of deportation cannot be employed unless it can be legally enforced as well . For the reasons given above that does not seem to me to be the case .

32 . Moreover, in my opinion, Article 9 of Regulation No 1612/86 shows that the Community legislature wished to promote the integration of migrant workers by positive rather than negative means, by giving a migrant worker "all the rights and benefits accorded to national workers in matters of housing, including ownership of the housing he needs ." Article 9(2 ) continues : "Such worker may, with the same right as nationals, put his name down on the housing lists in the region in which he is employed, where such lists exist; he shall enjoy the resultant benefits and priorities . If his family has remained in the country whence he came, they shall be considered for this purpose as residing in the said region, where national workers benefit from a similar presumption ". Indeed, the German Government' s agent declared that his country complied fully with the provisions of that article, so that in most cases it was possible to find adequate solutions by those means .

33 . Finally, the Commission was right to draw the Court' s attention to Article 4 of the Council Directive 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 ( 64/221/EEC ). According to that provision the only diseases or disabilities justifying refusal of entry into a territory or refusal to issue a first residence permit are those listed in the annex to the directive . They are very serious diseases, namely diseases subject to quarantine, tuberculosis, syphilis and other infectious diseases or contagious parasitic diseases . Yet Article 4(2 ) provides that diseases or disabilities occurring after a first residence permit has been issued are not to justify refusal to renew the residence permit or expulsion from the territory . If expulsion is not permissible even though such diseases carry serious risks for the indigenous population and involve substantial expense for the health insurance system of the host country, we are entitled to think that in wording Article 10(3 ) of Regulation No 1612/68 as it did the Council did not intend to open the way to deportation if housing conditions become unsatisfactory after the arrival of the worker' s family .

34 . I therefore conclude that a national legislative provision to the effect that a residence permit of a member of the family of a migrant worker may not be renewed or that the period of validity of such a residence permit may be reduced a posteriori where the family' s housing can no longer be regarded as appropriate under the relevant criteria applicable in the place of residence is incompatible with the last part of Article 10(3 ) of Regulation No 1612/68, which prohibits all discrimination in the application of that condition .

35 . In addition, the Commission considers that there is ipso facto an infringement of Article 48 of the Treaty . The German Government contends, on the other hand, that that allegation lacks foundation since Article 48 does not confer on members of the family of a migrant worker any "primary" or "personal" right to freedom of movement .

36 . That question is not easily dealt with . From one point of view the opportunity granted to members of the family of coming to live with the worker helps to achieve the objectives of Article 48 by eliminating obstacles preventing the exercise by workers of the right to move freely in the territory of the other Member States and to reside there in order to work . The right of the family of a worker to install themselves with him on the territory of another Member State corresponds to the right of the worker himself to be joined by his family ( see in this connection the fifth recital in the preamble to Regulation No 1612/68 ). In a certain sense it is therefore a right accorded to the worker himself as much as to his family .

37 . On the other hand, however, Mr Advocate General Lenz was right to say that : ( 7 )

"... Articles 48 to 51 of the EEC Treaty, on freedom of movement for workers, make no mention of any right of workers' families to follow them . Regulation No 1612/68 of the Council thus goes beyond the minimum content of the Treaty in this respect" ( p . 1291 ).

It may be added that the actual term "members of the family" does not appear in those articles and prior to the adoption of Regulation No 1612/68 there was no definition of the scope of that concept .

38 . Moreover, in various judgments the Court has held that members of a worker' s family within the meaning of Article 10 of Regulation No 1612/68 "qualify only indirectly" ( 8 ) for the rights of freedom of movement accorded by Article 48 of the Treaty to the worker and that the rights granted to them by Articles 10 and 11 are only "secondary" rights, in that they are linked to the rights which the worker enjoys under Article 48 of the Treaty and Article 1 et seq . of Regulation No 1612/68 . ( 9 )

39 . In addition, at paragraph 31 of the judgment of 8 April 1976 in Case 48/75 Royer (( 1976 )) ECR 497, the Court established that :

"the right of nationals of a Member State to enter the territory of another Member State and reside there for the purposes intended by the Treaty - in particular to look for or pursue an occupation or activities as employed or self-employed persons, or to rejoin their spouse or family - is a right conferred directly by the Treaty, or, as the case may be, by the provisions adopted for its implementation" ( see also paragraph 50 and the operative part ).

In my opinion the rights accorded to members of the family fall under that latter category .

40 . Finally, the Commission' s reasoning according to which any breach of Regulation No 1612/68 involves ipso facto a breach of Article 48 of the EEC Treaty on the ground that that regulation is based on Article 49, which provides for the "measures required to bring about, by progressive stages, freedom of movement for workers as defined in Article 48", should logically lead to a restrictive interpretation of the provisions of that regulation, limiting their scope to what is "required" to bring about freedom of movement for workers . The Court' s case-law, in particular with regard to the concept of "social advantages" as referred to in Article 7(2 ) of the regulation, runs directly counter to that . I do not believe that it would be in anyone' s interest, and certainly not the Commission' s, to seek to make the Court diverge from that broad interpretation, and I therefore consider that it should not be held that there has been a failure to comply with Article 48 of the EEC Treaty .

Conclusion

41 . On the basis of the foregoing considerations I propose that the Court should hold that by adopting and maintaining in force legislative provisions to the effect that the extension of a residence permit for members of the family of a migrant worker is to be refused and the permit' s duration reduced if the housing available to the worker for his family is no longer judged appropriate under the criteria applicable in the place of residence, the Federal Republic of Germany has failed to fulfil its obligations under Article 10(3 ) of Regulation ( EEC ) No 1612/68 of the Council .

42 . Since I am thus of the opinion that the Commission ought to succeed in the main part of its case, I would also propose that the Federal Republic of Germany should be ordered to pay the costs .

(*) Original language : French .

( 1 ) Regulation ( EEC ) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community ( OJ, English Special Edition 1968 ( II ), p . 475 ).

( 2 ) Bundesgesetzblatt I, 6.2.1980, p . 117 .

( 3 ) "Residence permit" is the English translation of the German term "Aufenthaltserlaubnis" and the French term "autorisation de séjour ". It should be noted that in Directive 68/360/EEC "Aufenthaltserlaubnis" corresponds to "carte de séjour ".

( 4 ) At paragraph 43 of its judgment of 21 June 1988 in Case 39/86 Lair v Universitaet Hannover (( 1988 )) ECR 3161, the Court accepted the concept of abuse .

( 5 ) Joined Cases 115 and 116/81 (( 1982 )) ECR 1665, pp . 1707 and 1780, paragraph 7 .

( 6 ) See judgment of 7 July 1976 in Case 118/75 Watson and Belmann (( 1976 )) ECR 1185, paragraph 20 .

( 7 ) Opinion in Case 59/85 Reed (( 1986 )) ECR 1283 .

( 8 ) See the judgment of 18 June 1987 in Case 316/85 Centre public d' aide sociale de Courcelles v Marie-Christine Lebon (( 1987 )) ECR 2811, paragraph 12 .

( 9 ) See the judgment of 7 May 1986 in Case 131/85 Guel v Regierungspraesident Duesseldorf (( 1986 )) ECR 1573, paragraph 20 .