Case C-349/06: Reference for a preliminary ruling from the Verwaltungsgericht Darmstadt (Germany) lodged on 21 August 2006 — Murat Polat v Stadt Rüsselsheim
Date: 2006-11-18
Institutions: Court of Justice
Subjects: Türkiye, association agreement (EU), family migration, foreign national, interpretation of the law, residence permit, rights of aliens

C 281/20

EN

Official Journal of the European Union

18.11.2006

(3) Is the extension of current concessions for the distribution
of natural gas, both in the case described in the first ques-
tion and in the cases described in the second, contrary to
tenth and eighteenth recitals in the
the fourth, eighth,
preamble to Directive 2003/55/EC (1) of 26 June 2003, and
to Article 23(1) thereof, to Article 10 of the Treaty and to
the principles of reasonableness and proportionality, having
particular regard to:

(a) the fact that the States are obliged to attain the objec-
tive of liberalising the market in natural gas before the
dead-line of 1 July 2007;

(b) the fact that the States are prohibited from adopting or
maintaining in force domestic legislation incompatible
with the liberalisation of the market in natural gas;

(c) the fact that the States are obliged to set a reasonable
term for the duration of the transitional period and
subject it to objective requirements?

(1) OJ L 176, p. 57.

Reference for a preliminary ruling from the Verwaltungs-
gericht Darmstadt (Germany) lodged on 21 August 2006
— Murat Polat v Stadt Rüsselsheim

(Case C-349/06)

(2006/C 281/32)

Language of the case: German

Referring court

Verwaltungsgericht Darmstadt

Parties to the main proceedings

Applicant: Murat Polat

Defendant: Stadt Rüsselsheim

Questions referred

No 1/80 of the EEC/Turkey Association Council (Decision
No 1/80) to free access to any paid employment — except
in cases under Article 14 of Decision No 1/80 or where he
leaves the host Member State for a significant period of time
without legitimate reason — even in the case where he has
attained the age of 21 and no longer lives with his parents
or is maintained by them?

In the event that the answer to Question 1 is negative:

2. Does a Turkish national, whose legal status under the
second indent of the first sentence of Article 7 of Decision
No 1/80 has been terminated on the basis of the conditions
set out in Question 1, reacquire that legal status if, after
reaching the age of 21, he returns to live in his parents'
is
household for a period of more than three years,
permitted to live there free of charge and is given lodging,
and the mother has minimal employment (as a cleaning
lady generally for 30 to 70 hours per month and at times
20 hours per month) during that period?

In the event that the answer to Question 2 is affirmative:

3. Does the position in law change if the family member has a
number of courses of residential treatments (30.8.2001 to
20.6.2002, 2.10.2003 to 8.1.2004) during the period of
residence with the worker?

4. Does the position in law change if the Turkish national has
regular personal income of at least EUR 400 to EUR 1 400
per month during the period of residence with the worker?

In the event that the continuance of a legal status under the
second indent of the first sentence of Article 7 of Decision No
1/80 is to be assumed (if the answer to Question 1 is affirma-
tive or the answer to Question 2 is affirmative and the answers
to Questions 3 and 4 are negative):

5. May a Turkish national, whose legal status derives from the
second indent of the first sentence of Article 7 of Decision
No 1/80 and who has lived in the federal territory since
1972, rely on the special protection against expulsion under
Article 28(3)(a) of Directive 2004/38/EC of 29 April 2004
(OJ 2004 L 158, p. 77; corrigendum at OJ 2004 L 229, p.
35)?

6. Does the position in law change if the Turkish national,
within the ten years prior to the issue of the expulsion
order, resided in Turkey from 1 February 1996 to 28
November 1997 for the purpose of performing his military
service?

1. Is it compatible with Article 59 of the Additional Protocol
to the Agreement of 12 September 1963 establishing an
Association between the European Economic Community
and Turkey (1) for the transitional phase if a Turkish national
who, as a child, joined his parents who were employed as
workers in the Federal Republic of Germany, does not lose
his right of residence derived from the right under the
second [indent] of the first sentence of Article 7 of Decision

In the event that the answer to Question 5 is negative or the
answer to Question 6 is affirmative:

7. May a Turkish national, whose legal status derives from the
second indent of the first sentence of Article 7 of Decision
No 1/80 and who has lived in the federal territory since
1972, rely on the special protection against expulsion under
Article 28(2) of Directive 2004/38?

18.11.2006

EN

Official Journal of the European Union

C 281/21

In the event that the answer to Question 7 is negative:

8. May a Turkish national, whose legal status derives from the
second indent of the first sentence of Article 7 of Decision
No 1/80, rely on the special protection against expulsion
under Article 28(1) of Directive 2004/38?

In the event that the continuance of a legal status under the
second indent of the first sentence of Article 7 of Decision No
1/80 is to be assumed (if the answer to Question 1 is affirma-
tive or the answer to Question 2 is affirmative and the answers
to Questions 3 and 4 are negative), a further question requires
an answer:

9. Can a number of minor offences (essentially offences against
property), which, taken individually, are not sufficient to
form the basis of an actual and sufficiently serious danger to
a fundamental interest of society, justify expulsion because
of their great number, if further offences are likely and no
measures are taken against German nationals in the same
circumstances?

(1) OJ 1977 L 361, p. 60.

authorised at a later date, or can national legal provisions
and/or national practice stipulate that an entitlement
to
annual paid leave is extinguished if workers become incapa-
citated for work during the leave year before leave is
authorised and do not recover their capacity for work
before the end of the leave year or the carry-over period
laid down by statute, collective agreement or individual
agreement?

2. Is Article 7(2) of Directive 2003/88/EC to be understood as
meaning that at the end of the employment relationship
workers have, in any event, a claim to financial compensa-
tion in respect of leave accrued but not taken (an allowance
in lieu of leave), or can national legislation and/or national
practice stipulate that workers will not receive an allowance
in lieu of leave if, up to the end of the leave year or the rele-
vant carry-over period, they are incapacitated for work and/
or if after the ending of the employment relationship they
draw a disability or invalidity pension?

3. In the event that the Court of Justice answers Questions 1

and 2 in the affirmative:

Is Article 7 of Directive 2003/88/EC to be understood as
meaning that the entitlement to annual leave or an allow-
ance in lieu requires the worker actually to have worked
during the leave year, or does the entitlement arise also in
the case of excusable absence (by reason of illness) or inex-
cusable absence in the same leave year?

Reference for a preliminary ruling from the Landesarbeits-
gericht Düsseldorf (Germany) lodged on 21 August 2006
— Gerhard Schultz-Hoff v Deutsche Rentenversicherung
Bund

(1) OJ L 299, p. 9.

(Case C-350/06)

(2006/C 281/33)

Language of the case: German

Referring court

Landesarbeitsgericht Düsseldorf

Parties to the main proceedings

Appellant: Gerhard Schultz-Hoff

Respondent: Deutsche Rentenversicherung Bund

Questions referred

1. Is Article 7(1) of Directive 2003/88/EC (1) (= Article 7 of
Directive 93/104/EC) to be understood as meaning that
workers must in any event receive minimum annual paid
leave of four weeks [and that] in particular leave not taken
by a worker because of illness during the leave year must be

Reference for a preliminary ruling from the Finanzgericht
Köln lodged on 25 August 2006 — Brigitte Bosmann v
Bundesagentur für Arbeit, Familienkasse Aachen

(Case C-352/06)

(2006/C 281/34)

Language of the case: German

Referring court

Finanzgericht Köln

Parties to the main proceedings

Applicant: Brigitte Bosmann

Defendant: Bundesagentur für Arbeit, Familienkasse Aachen