Case C-349/06: Judgment of the Court (Seventh Chamber) of 4 October 2007 (reference for a preliminary ruling from the Verwaltungsgericht Darmstadt — Germany) — Murat Polat v Stadt Rüsselsheim (EEC-Turkey Association Agreement — Article 59 of the Additional Protocol — First paragraph of Article 7 and Article 14 of Decision No 1/80 of the Association Council — Directive 2004/38/EC — Right of residence of a Turkish worker's child — Adult child who is no longer dependent on his parents — Numerous criminal convictions — Lawfulness of an expulsion order)
Date: 2007-12-08
Institutions: Court of Justice
Subjects: Türkiye, association agreement (EU), family migration, foreign national, interpretation of the law, residence permit, rights of aliens

C 297/14

EN

Official Journal of the European Union

8.12.2007

Other party to the proceedings: Commission of
the European
Communities (represented by: M. Condou-Durande and H.
Tserepa-Lacombe, Agents)

Defendant: Stadt Rüsselsheim

Re:

Re:

the Court of First
Appeal brought against the judgment of
Instance (Second Chamber) of 20 June 2006 in Case T-251/04
Greece v Commission by which the Court dismissed an action
seeking annulment of Commission Decision 2004/457/EC of
29 April 2004 excluding from Community financing certain
expenditure incurred by the Member States under the Guarantee
Section
and
Guarantee Fund (EAGGF)
(notified under document number
C(2004) 1706) (OJ 2004 L 156, p. 47)

European Agricultural Guidance

the

of

Operative part of the judgment

The Court:

1. Dismisses the appeal;

2. Orders the Hellenic Republic to pay the costs.

(1) OJ C 224, 16.9.2006.

Judgment of the Court (Seventh Chamber) of 4 October
2007 (reference
a preliminary ruling from the
Verwaltungsgericht Darmstadt — Germany) — Murat Polat
v Stadt Rüsselsheim

for

(Case C-349/06) (1)

(EEC-Turkey Association Agreement — Article 59 of the
Additional Protocol — First paragraph of Article 7 and
Article 14 of Decision No 1/80 of the Association Council —
Directive 2004/38/EC — Right of residence of a Turkish
worker's child — Adult child who is no longer dependent on
his parents — Numerous criminal convictions — Lawfulness
of an expulsion order)

(2007/C 297/21)

Language of the case: German

Referring court

Verwaltungsgericht Darmstadt

Parties to the main proceedings

Applicant: Murat Polat

Preliminary ruling — Verwaltungsgericht Darmstadt — Interpre-
tation of the second indent of the first sentence of Article 7 of
Decision No 1/80 of the EEC/Turkey Association Council, of
Article 59 of the Additional Protocol relating to the transitional
phase provided for in the Agreement establishing an Association
between the European Economic Community and Turkey,
signed on 23 November 1970 (OJ 1977 L 361, p. 60), and of
Article 28 of 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
(EEC) 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) — Right of residence of a Turkish national who entered
the national territory as a minor by way of family reunification
and who was financially independent after his majority —
Return to the national territory in a position of financial depen-
dence vis-à-vis his parents — Acquisition of the right of resi-
dence for adults financially dependent on their parents —
Conditions under which the right of
residence is lost —
Criminal convictions — Lawfulness of a decision to expel.

Operative part of the judgment

1) A Turkish national, who was authorised while he was a child to
enter the territory of a Member State in order to join his family
and who has acquired the right of free access to any paid employ-
ment of his choice under the second indent of the first paragraph of
Article 7 of Decision No 1/80 of 19 September 1980 on the
development of
the Association
the Association, adopted by
Council set up by the Association Agreement between the European
Economic Community and Turkey, loses the right of residence in
the host Member State which is a corollary of that right of free
access only in two situations, that is:

— in the circumstances provided for in Article 14(1) of that deci-

sion, or

— if he leaves the territory of the Member State concerned for a

significant length of time without legitimate reason,

even though he is over 21 years of age, is no longer dependent on
his parents, but lives independently in the Member State concerned,
and was not available to join the labour force for several years
because he was during that period serving an unsuspended sentence
of imprisonment.

Such an interpretation is not inconsistent with the requirements of
the Additional Protocol signed at Brussels on
Article 59 of
23 November 1970 and concluded, approved and confirmed on
behalf
(EEC)
No 2760/72 of 19 December 1972;

by Council Regulation

the Community

of

8.12.2007

EN

Official Journal of the European Union

C 297/15

2) Article 14(1) of Decision No 1/80 must be interpreted as not
precluding the taking of an expulsion measure against a Turkish
national who has been the subject of several criminal convictions,
provided that his behaviour constitutes a genuine and sufficiently
serious threat to a fundamental
interest of society. It is for the
national court to determine whether that is the case in the main
proceedings.

(1) OJ C 281, 18.11.2006.

2. Orders the Grand Duchy of Luxembourg to pay the costs.

(1) OJ C 249 of 14.10.2006.

Judgment of the Court (Fourth Chamber) of 11 October
2007 (reference for a preliminary ruling from the Supremo
Tribunal Administrativo — Portugal) — Erika Hollmann v
Fazenda Pública

(Case C-443/06) (1)

Judgment of the Court (Fifth Chamber) of 27 September
the European Communities v
2007 — Commission of

Grand Duchy of Luxembourg

(Direct taxation — Taxation of capital gains on immovable
property — Free movement of capital — Basis of assessment
— Discrimination — Cohesion of the tax system)

(Case C-354/06) (1)

(Failure of Member State to fulfil obligations — Protection of
the environment — Access to justice)

(2007/C 297/23)

Language of the case: Portuguese

(2007/C 297/22)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: J. Hottiaux and F. Simonetti, agents, acting as Agent
(s))

Defendant: Grand Duchy of Luxembourg (represented by: C.
Schiltz, agent.)

Re:

Failure of Member State to fulfil obligations — Failure to take
within the prescribed period the measures necessary to comply
with Directive 2003/35/EC of the European Parliament and of
the Council of 26 May 2003 providing for public participation
in respect of the drawing up of certain plans and programmes
relating to the environment and amending with regard to public
participation
justice Council Directives
to
access
85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17)

and

Operative part of the judgment

The Court:

1. Declares that by failing to take in the prescribed period all the
legislative regulatory and administrative measures necessary to
comply with Directive 2003/35/EC of the European Parliament
and of the Council of 26 May 2003 providing for public partici-
pation in respect of
certain plans and
programmes relating to the environment and amending with regard
to public participation and access to justice Council Directives
85/337/EEC and 96/61/EC, the Grand Duchy of Luxembourg
has failed to fulfil its obligations under that directive;

the drawing up of

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Erika Hollmann

Defendant: Fazenda Pública

Intervener: Ministério Público

Re:

Reference for a preliminary ruling — Supremo Tribunal Admin-
istrativo — Interpretation of Articles 12 EC, 18 EC, 39 EC,
43 EC and 56 EC — Taxation of capital gains realised on the
transfer for valuable consideration of real property — Exclusion
from the part exemption provided for for persons residing in
Portugal of capital gains realised on such transfers made by
persons residing in another Member State

Operative part of the judgment

Article 56 EC must be interpreted as precluding national legislation,
such as that in dispute in the main proceedings, which subjects capital
gains resulting from the transfer of immovable property situated in a
Member State, in this case Portugal, where that transfer is made by a
resident of another Member State, to a tax burden greater than that
which would be applicable for the same type of transaction to capital
gains realised by a resident of the State in which that immovable prop-
erty is situated.

(1) OJ C 326, 30.12.2006.