Ismail Derin v Landkreis Darmstadt-Dieburg.
Date: 2007-07-18
21. After arriving in Germany, Mr Derin attended primary school, from August 1982 until July 1988, and, from August 1988 to July 1990, a vocational school. He completed his schooling in the course of 1991 by passing the Lower Secondary Examination (‘mittlere Reife’).
42. In the light of the facts of the main proceedings, as described in the order for reference, it is in fact probable that Mr Derin, who, as a child of a Turkish father and mother who have lawfully worked in the host Member State for between 6 and 24 years respectively, completed a course of vocational training in that Member State, can rely on the rights of access to employment and of residence there pursuant to the second paragraph of Article 7 of Decision No 1/80, which constitutes a more favourable provision than the first paragraph of that article (see Cases C-210/97 Akman  [1998] ECR I-7519, paragraphs 35 and 38, and C-502/04 Torun [2006] ECR I-1563, paragraphs 22 to 24).
47. To give a useful answer to that question, it should be stated at the outset that there is no dispute that, first, like Article 6(1) and the second paragraph of Article 7 of Decision No 1/80, the first paragraph of Article 7 has direct effect in the Member States, with the result that Turkish nationals fulfilling the conditions which it lays down may directly rely on the rights it confers on them (see, inter alia, Torun , paragraph 19) and that, second, the rights granted by the first paragraph of Article 7 to the child of a Turkish worker with regard to employment in the Member State concerned necessarily imply the existence of a concomitant right of residence for that child, without which the right of access to the employment market and actually to take up paid employment would be rendered totally ineffective (see, inter alia, Case C-467/02 Cetinkaya [2004] ECR I-10895, paragraph 31).
48. The first paragraph of Article 7 of Decision No 1/80 applies to the situation of a Turkish national who, as a member of the family of a Turkish worker who is or was duly registered as belonging to the labour force of the host Member State, has either been authorised to join that worker there to reunite the family or was born and has always resided in that State (see, inter alia, Aydinli , paragraph 22).
49. In should be noted, first, that the Court has previously held that the applicability of that provision to such situations is independent of the fact that, at the material time, the person concerned is an adult no longer living with his family, but living independently of the worker in the relevant Member State (see, in particular, Aydinli , paragraph 22 and, by analogy, Torun , paragraphs 27 and 28).
50. Such a Turkish national cannot, therefore, lose a right acquired on the basis of the first paragraph of Article 7 of Decision No 1/80 as a result of circumstances arising of the kind referred to in the preceding paragraph. The right of access enjoyed by members of a Turkish worker’s family, after a certain period, to employment in the host Member State is in fact specifically intended to consolidate their position in that State by offering them the chance to become independent (see Aydinli , paragraph 23).
51. Furthermore, although the first indent of the first paragraph of Article 7 of Decision No 1/80 requires, as a rule, that the member of the family of a Turkish worker must actually reside with that worker for the three years during which he fails himself to satisfy the conditions for access to the labour market in the host Member State (see Case C-351/95 Kadiman  [1997] ECR I-2133, paragraph 33, 37, 40, 41 and 44; Case C-329/97 Ergat [2000] ECR I-1487, paragraphs 36 and 37; Case C-65/98 Eyüp  [2000] ECR I-4747, paragraphs 28 and 29; and Cetinkaya , paragraph 30), the fact remains that Member States are no longer entitled to attach conditions to the residence of a member of a Turkish worker’s family after that three-year period; this must a fortiori  be the case for a Turkish migrant who fulfils the conditions laid down in the second indent of the first paragraph of Article 7 (see Ergat , paragraphs 37 to 39; Cetinkaya , paragraph 30; and Aydinli , paragraph 24).
52. As noted by the Advocate General in points 30 and 31 and in points 120 to 123 of his Opinion, the Court has specifically held, as regards the members of a Turkish worker’s family who are covered by the first paragraph of Article 7 of Decision No 1/80 and, like Mr Derin, enjoy the right, after five years of legal residence, to free access to employment in the host Member State in accordance with the second indent of that provision, not only that the direct effect of that provision means that the persons concerned derive an individual employment right directly from Decision No 1/80, but also that to be effective that right necessarily implies a concomitant right of residence which does not depend on the continuing existence of the conditions for access to those rights (see, inter alia, Ergat , paragraph 40; Cetinkaya , paragraph 31; and Aydinli , paragraph 25).
53. Accordingly, the fact that the condition of eligibility for the right in question, in this case residence with the Turkish worker for a certain period, ceases to obtain after the family member of the worker has acquired the relevant right cannot affect the enjoyment of that right (see Aydinli , paragraph 26). A different interpretation of the first paragraph of Article 7 of Decision No 1/80 would not be consistent with the aim and broad logic of Decision No 1/80, which is intended to promote the gradual integration in the host Member State of Turkish nationals who satisfy the conditions laid down in one of the provisions of that decision and thus enjoy the rights conferred on them by the decision (see, in particular, Case C‑171/01 Wählergruppe Gemeinsam [2003] ECR I-4301, paragraph 79).
54. Secondly, as is evident from the settled case-law of the Court, there can be only two kinds of restrictions on the rights conferred by the first paragraph of Article 7 of Decision No 1/80 on members of a Turkish worker’s family who fulfil the conditions laid down in that paragraph, namely, either that based on the presence of the Turkish migrant in the host Member State where he constitutes, on account of his own conduct, a genuine and serious threat to public policy, public security or public health, in accordance with Article 14(1) of that decision, or that relating to the fact that the person concerned has left the territory of that State for a significant length of time without legitimate reason (see Ergat , paragraphs 45, 46 and 48; Cetinkaya , paragraphs 36 and 38; Aydinli , paragraph 27; and Torun , paragraph 21).
55. Given that Decision No 1/80 draws a clear distinction between the situation of Turkish workers who have been legally employed in the host Member State for a specified period (Article 6 of the decision) and that of members of the families of such workers legally resident in the territory of the host Member State (Article 7 of the decision) and that, within the scheme of the decision, Article 7 constitutes a lex specialis  in relation to the rights laid down in the three indents of Article 6(1), which are gradually extended according to the period of legal paid employment (see Joined Cases C-317/01 and C-369/01 Abatay and Others  [2003] ECR I‑12301, paragraph 78; Aydinli , paragraph 19; and Torun , paragraph 17), the rights conferred by Article 7 of Decision No 1/80 cannot be limited in the same situations as those granted by Article 6 of the decision (see Aydinli , paragraph 31, and Torun , paragraph 26).
56. In particular, a Turkish national accorded rights under Article 7 cannot be deprived of them either because he was unemployed on account of being sentenced to a term of imprisonment, even one of several years’ duration which was not suspended, or because he never acquired rights relating to employment and residence pursuant to Article 6(1) (see, to that effect, Aydinli , paragraph 28, and Torun , paragraph 26). In contrast to Turkish workers to whom Article 6(1) applies, the status of members of their family referred to in Article 7 of that decision does not depend on paid employment.
57. It must therefore be concluded from the foregoing that it follows from both the scheme and the objective of Decision No 1/80 that a Turkish national in a situation such as that of the applicant in the main proceedings, who enjoys the right of free access to any paid employment of his choice in accordance with the second indent of the first paragraph of Article 7 of that decision, loses the right of residence which is a corollary of that right of free access only in two situations, that is to say, in the circumstances provided for in Article 14 (1) of that decision or if he leaves the territory of the host Member State for a significant length of time without legitimate reason. Such a Turkish national does not, on the other hand, lose that right of residence on account of a prolonged absence from the labour market owing to imprisonment, even if of several years’ duration and not suspended, or owing to the fact that, on the date of the decision to expel him, he was over 21, no longer resident with the Turkish worker from whom he derived his right of residence and no longer dependent on him, but lived independently of that worker (see Aydinli , paragraph 32, and, by analogy, Torun , paragraph 29).
62. In that regard, it must be stated first that, in accordance with Article 10(1) of Regulation No 1612/68, children who are under the age of 21 years or are dependants of a worker who is a national of one Member State and is employed in the territory of another Member State enjoy the unconditional right to install themselves with that migrant Community worker.
63. By contrast, the first paragraph of Article 7 of Decision No 1/80 provides expressly that the family member’s right to join the migrant Turkish worker is subject to the authorisation to that effect granted in accordance with the conditions laid down by the legislation of the host Member State (see Case C-275/02 Ayaz  [2004] ECR I-8765, paragraphs 34 and 35).
64. In the context, therefore, of the EEC-Turkey Association − save in the specific case where the Turkish national was born and has always resided in the host Member State − the members of the family of the migrant Turkish worker do not have a right to join him to live as a family; their ability to join him depends rather on a decision of the national authorities taken solely on the basis of the law of the Member State concerned, subject to the requirement of observance of fundamental rights as laid down, in particular, by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (see, by analogy, C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 72).
65. Second, pursuant to Article 11 of Regulation No 1612/68, the children who have the right to install themselves with the worker who is a national of one Member State and is employed in the territory of another Member State enjoy, by virtue of that fact alone, the right to take up any activity as an employed person in the host Member State, whereas the right of the children of a migrant Turkish worker to be employed is specifically regulated by the first paragraph of Article 7 of Decision No 1/80, a provision which lays down conditions which vary according to the length of legal residence with the migra nt worker from whom they derive rights. Thus, during the first three years of residence, no right of that kind is accorded to Turkish nationals, whereas, after three years of legal residence with their family, they have the right to respond to an offer of employment, subject to the priority to be given to workers from the Member States. It is only after five years of legal residence that they enjoy free access to any paid employment of their choice.
66. Finally, the Court has repeatedly held that, unlike workers from the Member States, Turkish nationals are not entitled to freedom of movement within the Community but can rely only on certain rights in the territory of the host Member State alone (see, in that regard, in particular, Case C-171/95 Tetik  [1997] ECR I‑329, paragraph 29; Case C-37/98 Savas  [2000] ECR I-2927, paragraph 59; and Wählergruppe Gemeinsam , paragraph 89).
67. Moreover, the case-law of the Court relating to the conditions under which rights derived from Article 7 of Decision No 1/80 can be restricted lays down, in addition to the exception based on public policy, public security and public health, which is applicable in the same way to Turkish nationals and to Community nationals (see, inter alia, Case C- 340/97 Nazli  [2000] ECR I-957, paragraphs 55, 56 and 63), a second ground of loss of those rights which is applicable only to Turkish migrants, namely if they leave the territory of the host Member State for a significant length of time without legitimate reason (see paragraphs 54 and 57 of this judgment). In such a case, the authorities of the Member State concerned are entitled to require that, should the person concerned subsequently wish to resettle in that State, he must make a fresh application either for authorisation to join the Turkish worker if he is still dependent on that worker, or to be admitted with a view to being employed there on the basis of Article 6 of that decision (see Ergat , paragraph 49).
68. Accordingly, the situation of a child of a migrant Turkish worker cannot usefully be compared to that of a descendant of a national of a Member State, having regard to the significant differences between their respective legal situations. The more favourable situation enjoyed by Member State nationals results, moreover, from the very wording of the applicable legislation.
71. Additionally, such an interpretation would inevitably render the legal status of the children of migrant Turkish workers more precarious the further they integrated in the host Member State, whereas Article 7 of Decision No 1/80 pursues on the contrary the objective of a progressive consolidation of the situation of the family members of those workers in the Member State concerned, by permitting them, after a certain period of time, to live independently there.
74. Finally, with regard to a situation such as that in the main proceedings, in which a decision has been taken by the competent authorities of the host Member State to expel a Turkish national after his conviction there for several offences under national legislation, it must be pointed out that it is Article 14(1) of Decision 1/80 which establishes the relevant legal framework authorising the Member States to take the necessary measures. Those authorities are, however, obliged to assess the personal conduct of the offender and whether it constitutes a present, genuine and sufficiently serious threat to public policy and security, and in addition they must observe the principle of proportionality (see, to that effect, Nazli , paragraphs 57 to 61, and, by analogy, Case C-100/01 Oteiza Olazabal  [2002] ECR I-10981, paragraphs 39, 43 and 44). In particular, a measure ordering expulsion based on Article 14(1) of that decision may be taken only if the personal conduct of the person concerned indicates a specific risk of new and serious prejudice to the requirements of public policy. Consequently, such a measure cannot be ordered automatically following a criminal conviction and with the aim of general deterrence (see Case C-383/03 Dogan  [2005] ECR I-6237, paragraph 24).