Sidika Ucar and Recep Kilic v Land Berlin.
Date: 2016-12-21
51


As a preliminary point, it must be recalled that, according to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the question referred to it (judgment of 8 December 2011, Banco Bilbao Vizcaya Argentaria, C‑157/10, EU:C:2011:813, paragraph 18).
54


As a preliminary point, it must be recalled that the provisions of Article 7, first paragraph, of Decision No 1/80 confer, in clear, precise and unconditional terms, the right on the members of the family of a Turkish worker duly registered as belonging to the labour force of the host Member State to respond, subject to priority being granted to workers of the Member States, to any offer of employment after being legally resident there for at least three years (first indent), and the right freely to take up paid employment of their choice in the Member State in whose territory they have been legally resident for at least five years (second indent) (judgment of 17 April 1997, Kadiman, C‑351/95, EU:C:1997:205, paragraph 27).
55


Thus, under that provision, the family members of a Turkish worker have, subject to compliance with the conditions set out therein, a right of their own of access to the labour force in the host Member State. In that regard, the Court has repeatedly held that the rights granted by the first paragraph of Article 7 to the family members of a Turkish worker with regard to employment in the Member State concerned necessarily imply the existence of a concomitant right of residence for the person concerned, without which the right of access to the labour force and actually to take up paid employment would be rendered totally ineffective (judgment of 19 July 2012, Dülger, C‑451/11, EU:C:2012:504, paragraph 28 and the case-law cited).
56


It is clear from the wording of that provision that the acquisition of the rights set out in that provision is subject to three cumulative conditions: the person concerned must be a member of the family of a Turkish worker who is already duly registered as belonging to the labour force of the host Member State; that person has been authorised by the competent authorities of that State to join that worker there, and he has been legally resident in that Member State for three or five years (see, to that effect, judgment of 19 July 2012, Dülger, C‑451/11, EU:C:2012:504, paragraph 29).
57


First of all, as regards the condition that the Turkish worker must be duly registered as belonging to the labour force in the host Member State, the Court has held that that condition relates to the concept of ‘legal employment’ which appears in Article 6(1) of Decision No 1/80, embraces all workers who have met the conditions laid down by law or regulation in the host Member State and who are thus entitled to pursue an occupation in its territory (see, to that effect, judgment of 18 December 2008, Altun, C‑337/07, EU:C:2008:744, paragraphs 22, 23 and 28).
58


Next, as far as concerns the condition requiring that the family member concerned is authorised to join the Turkish worker, the Court has stated that that condition seeks to exclude from the scope of Article 7, first paragraph, of Decision No 1/80, family members of a Turkish worker who have entered the host Member State and reside there in breach of that Member State’s legislation (see, to that effect, judgment of 11 November 2004, Cetinkaya, C‑467/02, EU:C:2004:708, paragraph 23).
59


In that context, the Court has held that that provision covers 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 (judgment of 18 July 207, Derin, C‑325/05, EU:C:2007:442, paragraph 48 and the case-law cited).
60


Finally, as regards the condition of residence, the Court has decided that Article 7, first paragraph, first indent, of Decision No 1/80 imposes on the family member of a Turkish worker the obligation to reside with the latter for a continuous period of at least three years (judgment of 18 December 2008, Altun, C‑337/07, EU:C:2008:744, paragraph 30).
61


It is clear from the settled case-law of the Court that that provision 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 specified 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 (see, in particular, judgment of 16 March 2000, Ergat, C‑329/97, EU:C:2000:133, paragraph 36).
62


In that connection, the Court states that, for the purposes of the acquisition, in accordance with Article 7, first paragraph, of Decision No 1/80, of the right of access to employment in the host Member State by the family member of a Turkish worker, the condition that the latter be duly registered as belonging to the labour force must have been fulfilled for at least the three-year period of cohabitation (judgment of 18 December 2008, Altun, C‑337/07, EU:C:2008:744, paragraph 37).
68


In that connection, it must be recalled that the scheme of gradual acquisition of rights which is provided for in Article 7, first paragraph, of Decision No 1/80 pursues a dual objective. First, before the initial period of three years expires, that provision seeks to enable family members to be with a migrant worker, with a view to thus furthering, by means of family reunification, the employment and residence of the Turkish worker who is already legally integrated in the host Member State. Secondly, that provision seeks to deepen the lasting integration of the Turkish migrant worker’s family in the host Member State by granting to the family member concerned, after three years of legal residence, the possibility of himself gaining access to the labour force. The fundamental objective thus pursued is that of consolidating the position of that family member, who is, at that stage, already legally integrated in the host Member State, by giving him the means to support himself in that State and therefore to establish a position which is independent of that of the migrant worker (judgment of 19 July 2012, Dülger, C‑451/11, EU:C:2012:504, paragraphs 38 to 40 and the case-law cited).
69


In the light of the general objective pursued by Decision No 1/80, which is to improve, in the social field, the treatment accorded to Turkish workers and members of their families with a view to achieving gradually freedom of movement, the system put in place by, in particular, the first paragraph of Article 7 of that decision is thus intended to create conditions which will promote family reunification in the host Member State (judgment of 29 March 2012, Kahveci, C‑7/10 and C‑9/10, EU:C:2012:180, paragraph 34).
73


Furthermore, it must be recalled that, according to settled case-law, the exercise of the rights that Turkish nationals derive from Decision No 1/80 is not subject to any condition relating to the ground on which the right of entry and of residence was originally granted in the host Member State (judgment of 18 December 2008, Altun, C‑337/07, EU:C:2008:744, paragraph 42 and the case-law cited).
74


In that context, the Court has already held that Article 6(1) of Decision No 1/80 thus covers Turkish nationals who have the status of workers in the host Member State without, however, requiring that they have entered the European Union as workers. They can have acquired that status after their entry into the European Union (see, to that effect, judgment of 24 January 2008, Payir and Others, C‑294/06, EU:C:2008:36, paragraph 38).