Safet Eyüp v Landesgeschäftsstelle des Arbeitsmarktservice Vorarlberg.
Date: 2000-06-22
25 In that respect, the Court has consistently held that the first paragraph of Article 7 of Decision No 1/80 has direct effect in the Member States, so that Turkish nationals fulfilling the conditions which it lays down may directly rely on the rights conferred on them by that provision. In particular, they are entitled under the first indent of that provision, subject to priority being granted to workers of the Member States, to respond to any offer of employment after being legally resident in the host Member State for at least three years, and, in accordance with the second indent, are to enjoy free access to any paid employment of their choice after they have been legally resident there for at least five years (Case C-351/95 Kadiman v Freistaat Bayern [1997] ECR I-2133, paragraphs 27 and 28; Case C-329/97 Ergat v Stadt Ulm [2000] ECR I-1487, paragraph 34).
26 The Court has also held that that first paragraph of Article 7 of Decision No 1/80 is designed to promote family unity in the host Member State, in order to facilitate the employment and residence of Turkish workers duly registered as belonging to the labour force of the Member State concerned, by first allowing family members who have been authorised to join the migrant worker to be present with him and by then consolidating their position with the right to work as employed persons in that State (Kadiman, paragraphs 34, 35 and 36).
27 Thus, whilst that provision lays down the right for members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State to work there as employed persons after being lawfully resident there for a certain time, it does not thereby affect the power of the Member State in question to authorise the persons concerned to join the Turkish worker legally employed there and to regulate their stay until they become entitled to respond to any offer of employment (Kadiman, paragraphs 32 and 51; Ergat, paragraph 35).
28 The Court has concluded from this that the first paragraph of Article 7 of Decision No 1/80 requires that the unity of the family, in pursuit of which the person concerned entered the territory of the host Member State, should be evidenced for a certain period by actual cohabitation in a household with the worker and that this must be so until he or she becomes entitled to enter the labour market in that State (Kadiman, paragraphs 33, 37 and 40; Ergat, paragraph 36).
29 Consequently, the Court has construed Decision No 1/80 as not in principle preventing the authorities of a Member State from making the benefit of the right of access to paid employment and the corresponding right of residence which it confers on members of a Turkish worker's family subject to the condition that the person concerned actually lives with that worker for the period of three years prescribed by the first indent of the first paragraph of Article 7 of that decision (Kadiman, paragraphs 41 and 44; Ergat, paragraph 37).
30 In paragraphs 47 to 50 and 54 of Kadiman, the Court also held that, although the spirit and purpose of the first indent of the first paragraph of Article 7 of Decision No 1/80 imply that the family member is in principle required to reside uninterruptedly with the Turkish migrant worker during the initial three-year period, account must nevertheless be taken, for the purpose of calculating the three-year period of legal residence within the meaning of that provision, of short interruptions in their living together which are not intended to call into question their joint home in the host Member State, such as an absence from the joint home for a reasonable time and legitimate reasons, or an involuntary stay of less than six months by the person concerned in his country of origin.
35 Moreover, it is undisputed that, during the period of cohabitation by the former spouses, the competent national authorities did not challenge Mrs Eyüp's right of residence in the host Member State.
36 In those circumstances, having regard to the particular facts of the case before the national court, and in particular the fact that the Eyüps' period of extra-marital cohabitation took place between their two marriages, that period cannot be regarded as an interruption of their joint family life in Austria, so that it must be taken into account in its entirety for the purposes of calculating periods of legal residence within the meaning of the first paragraph of Article 7 of Decision No 1/80.
37 Since, as has been noted in paragraph 30 of this judgment, the Court held in paragraphs 48 to 50 and 54 of Kadiman that the competent national authorities must take account of certain interruptions in the living together of the persons concerned in order to calculate the periods of lawful residence within the meaning of the first paragraph of Article 7 of Decision No 1/80, the interpretation of that provision given in the paragraph above applies even more in a case such as that at issue in the main proceedings, in which the cohabitation of the Turkish migrant worker with a person seeking the benefit of that provision has not been interrupted at all.
40 In view of the arguments raised by the parties in the main proceedings, it is important to add that as a result of the direct effect to be accorded to the first paragraph of Article 7 of Decision No 1/80 a Turkish national who, like Mrs Eyüp, fulfils the conditions laid down by that provision may directly rely on the individual rights which it confers in the matter of employment and, correspondingly, residence.
41 In that respect, it is settled case-law that a Member State cannot unilaterally modify the scope of the system of gradually integrating Turkish workers into the host Member State's labour force, so that that State no longer has the power to adopt measures such as to impede the exercise of the rights expressly granted by Decision No 1/80 (see, most recently, Case C-340/97 Nazli v Stadt Nürnberg [2000] ECR I-957, paragraph 30).
42 It is also settled case-law that every court of a Member State must apply Community law in its entirety and protect the rights which Community law confers on individuals, setting aside any provision of national law which may conflict with it (see, by analogy, Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629, paragraph 21).
45 In any event, it is settled case-law that the issue of a work or residence permit does not constitute the basis of a Turkish national's right to work or reside, such rights being conferred directly by Decision No 1/80, irrespective of whether the authorities of the host Member State have issued those particular documents, which are merely of declaratory and probative value, providing evidence of the existence of those rights (Ergat, paragraphs 61 and 62).
48 In view of all the considerations set out above, the answer to the first three questions must be that the first paragraph of Article 7 of Decision No 1/80 must be interpreted as covering the situation of a Turkish national who, like Mrs Eyüp, was authorised in her capacity as the spouse of a Turkish worker duly registered as belonging to the labour force of the host Member State to join that worker there, in circumstances where that spouse, having divorced before the expiry of the three-year qualification period laid down in the first indent of that provision, still continued in fact to live uninterruptedly with her former spouse until the date on which the two former spouses remarried. Such a Turkish national must therefore be regarded as legally resident in that Member State within the meaning of that provision, so that she may rely directly on her right, after three years, to respond to any offer of employment, and, after five years, to enjoy free access to any paid employment of her choice.
The fourth and fifth questions