Land Baden-Württemberg v Metin Bozkurt.
Date: 2010-12-22
26. In order to answer that question, it must be observed, in the first place, that, as is apparent from the very wording of the first paragraph of Article 7 of Decision No 1/80, the acquisition of the rights provided for in that provision is made subject to two prior cumulative conditions, namely, first, that 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 and, secondly, that he has been authorised by the competent authorities of that State to join that worker there. It is common ground that, in the present case, those conditions were met both by Mr Bozkurt and by his spouse.
30. It must be pointed out in that connection that, unlike the scheme provided for under Article 6(1) of Decision No 1/80, which is based on legal employment for certain periods, the relevant criterion for the first paragraph of Article 7 of that decision to apply is thus lawful residence with the Turkish migrant worker. After so residing for a certain period of time, the person concerned receives the right to work, but the first paragraph of Article 7 does not, however, impose an obligation to do so or make it a condition for the acquisition of a right guaranteed by Decision No 1/80 (see, to that effect, inter alia, Case C-373/03 Aydinli  [2005] ECR I-6181, paragraphs 29 and 31; Case C-325/05 Derin  [2007] ECR I-6495, paragraph 56; and Case C‑453/07 Er  [2008] ECR I-7299, paragraphs 31 to 34). The situation of a Turkish national such as the person at issue in the main proceedings with regard to employment is therefore irrelevant.
31. In the third place, the Court has already held on numerous occasions, first, that the first paragraph of Article 7 of Decision No 1/80 has direct effect and, secondly, that the periods of residence as set out in that provision mean that a concomitant right of residence must be acknowledged to exist, without which those periods of residence would be rendered totally ineffective (see, inter alia, Er , paragraphs 25 and 26, and Case C-337/07 Altun  [2008] ECR I‑10323, paragraphs 20 and 21).
33. 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 into the host Member State (see, inter alia, Case C-351/95 Kadiman [1997] ECR I-2133, paragraphs 35 and 36; Case C‑65/98 Eyüp  [2000] ECR I‑4747, paragraph 26; and Case C-467/02 Cetinkaya  [2004] ECR I‑10895, paragraph 25).
34. Thereafter, the same provision seeks to deepen the lasting integration of the Turkish migrant worker’s family into 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 into the host Member State, by giving him the means to earn his own living in that State and therefore to establish a position which is independent of that of the migrant worker (see, inter alia, Eyüp , paragraph 26; Cetinkaya , paragraph 25; Aydinli , paragraph 23; and Derin , paragraphs 50 and 71).
35. The Court has concluded from this that, although the family member is, as a rule and unless he has good reason not to, required actually to reside with the migrant worker as long as he does not himself have the right of access to the labour market – in other words, until the three-year period has expired –, by contrast that no longer applies where the person concerned has legally acquired that right pursuant to the first indent of the first paragraph of Article 7 of Decision No 1/80, and that must a fortiori be the case when, after five years, he has an unconditional right to employment (see Derin , paragraph 51 and the case-law cited).
36. Once the conditions set out in the first paragraph of Article 7 of Decision No 1/80 are satisfied, that provision confers on the family member of a Turkish worker a right of his own of access to the labour market in the host Member State and, concomitantly, the right to continue to reside in that State.
38. However, as the Commission of the European Communities correctly submits in its written observations, where the family member of such a worker has himself secured an individual right under to the first paragraph of Article 7 of Decision No 1/80, he has achieved a sufficient level of integration in the host Member State for his position to be regarded as separable from that of his relative which made possible his access to the territory of that State, and therefore as independent of the position of that relative (see, to that effect, Derin , paragraphs 50 and 71, and Altun , paragraphs 59 and 63).
39. That interpretation is also dictated in the light of the purpose of Decision No 1/80 taken a whole, regarding which it has repeatedly been held that it seeks to improve the situation of Turkish migrants in the host State by promoting the gradual integration in that State of Turkish nationals who satisfy the conditions laid down in one of the provisions of that decision and therefore enjoy the rights conferred on them by the decision (see, inter alia, Case C‑329/97 Ergat [2000] ECR I-1487, paragraphs 43 and 44; Derin , paragraph 53; and Altun , paragraphs 28 and 29).
40. It is on this view that the Court has held that rights such as those legally acquired by Mr Bozkurt on the basis of the first paragraph of Article 7 of Decision No 1/80 exist regardless of the continuing existence of the conditions which were necessary to give rise to those rights (see Ergat , paragraph 40; Cetinkaya , paragraph 31; Aydinli , paragraph 26; Derin , paragraph 53; and Altun , paragraph 36), with the result that the family member who already has rights pursuant to that decision is in a position to consolidate gradually his position in the host Member State and to become permanently integrated in that State by leading a life independent of that of the person through whom he secured those rights (see, to that effect, inter alia, Ergat , paragraphs 43 and 44).
41. The interpretation referred to in the preceding paragraph is merely the expression of the more general principle of respect for acquired rights, set out in the judgment in Case C-237/91 Kus  [1992] ECR I‑6781, paragraphs 21 and 22, a principle according to which, where the Turkish national may legitimately rely on rights pursuant to a provision of Decision No 1/80, those rights are no longer dependent on the continuing existence of the circumstances which gave rise to them, as no condition of that nature is laid down by that decision. In the Kus  case, the circumstance in question was, as a matter of fact, a marriage which had allowed the Turkish national concerned to enter the territory of the host Member State and was followed by a divorce which took place at a time when the person concerned had already acquired rights, in that case under Article 6(1) of Decision No 1/80. It should be noted that, by means of paragraph 22 of the judgment in Case C‑355/93 Eroglu  [1994] ECR I‑5113, that same principle was made applicable in the context of Article 7 of Decision No 1/80 (see, to the same effect, inter alia, Ergat , paragraph 40; Aydinli , paragraph 26; Derin , paragraph 50; and Altun , paragraphs 42 and 43).
42. As regards, in the fifth place, the circumstances which result in the loss of 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, it is also settled case-law that there can be only two kinds of restrictions on those rights, namely, either a restriction based on the fact that the presence of the Turkish migrant in the host Member State constitutes, on account of his personal conduct, a genuine and serious threat to public policy, public security or public health, in accordance with Article 14(1) of that decision, or a restriction based on the fact that the person concerned has left the territory of that State for a significant length of time without legitimate reason (see, inter alia, Er , paragraph 30, and Altun , paragraph 62).
43. The exhaustive nature of the restrictions set out in the preceding paragraph has been reaffirmed consistently by the Court (see, inter alia, Cetinkaya , paragraph 38; Derin , paragraph 54; Er , paragraph 30; and Altun , paragraph 62).
45. Lastly, it must be pointed out that the interpretation given in the preceding paragraph is not incompatible with the requirements of Article 59 of the Additional Protocol signed on 23 November 1970. As the Advocate-General stated at points 50 to 52 of her Opinion, on similar grounds to those set out on by the Court in paragraphs 62 to 67 of Derin  and in paragraph 21 of the judgment in Case C‑349/06 Polat [2007] ECR I-8167, the situation of a member of the family of a Turkish migrant worker cannot usefully be compared to that of a member of the family of a national of a Member State, having regard to the significant differences between their respective legal situations (see, to that effect, Case C‑462/08 Bekleyen  [2010] ECR I-0000, paragraphs 35 to 38 and 43).
46. In view of the foregoing, the answer to the first question is therefore that the first paragraph of Article 7 of Decision No 1/80 is to be interpreted as meaning that a Turkish national such as the applicant in the main proceedings who, as a member of the family of a Turkish worker who is duly registered as belonging to the labour force of a Member State and as a result of his residing with his spouse for a continuous period of at least five years, enjoys the rights relating to the legal status conferred on the basis of the second indent of that provision, does not lose those rights on account of his divorce, which took place after those rights were acquired.
The second question
47. It is settled case-law that European Union law cannot be relied on for abusive or fraudulent ends and that the national courts may, case by case, take account – on the basis of objective evidence – of abuse or fraudulent conduct on the part of the persons concerned in order, where appropriate, to deny them the benefit of the provisions of that law (see, inter alia, Case C-212/97 Centros [1999] ECR I-1459, paragraph 25; Case C-255/02 Halifax and Others  [2006] ECR I-1609, paragraph 68; and Case C-16/05 Tum and Dari  [2007] ECR I-7415, paragraph 64).
48. Thus the Court has ruled that periods in which a Turkish national was employed only as a result of fraudulent conduct which led to a conviction cannot be regarded as legal in respect of the application of Article 6(1) of Decision No 1/80, as the person concerned did not, in actual fact, satisfy the conditions laid down by that provision and did not therefore legally have a right under that decision (see Case C‑285/95 Kol  [1997] ECR I-3069, paragraphs 26 and 27, and Case C‑37/98 Savas  [2000] ECR I-2927, paragraph 61).
54. In that regard, it must be pointed out that it is Article 14(1) of Decision 1/80 which establishes the relevant legal framework for assessing to what extent a Turkish national who has been convicted of criminal offences may be deprived, by means of expulsion from the host Member State, of the rights which he derives directly from that decision (see, inter alia, Derin , paragraph 74).
55. When determining the scope of the public policy exception provided for in that provision, reference should, according to settled case-law, be made to the interpretation given to that exception in the field of freedom of movement for workers who are nationals of a Member State of the European Union (see, inter alia, Polat , paragraph 30).
56. The Court has always emphasised that that exception is a derogation from the fundamental principle of freedom of movement for persons, which must be interpreted strictly, and that its scope cannot be determined unilaterally by the Member States (see, inter alia, Polat , paragraph 33 and the case-law cited).
57. According to the settled case-law of the Court, reliance by a national authority on the concept of public policy presupposes the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to a fundamental interest of society ( Polat , paragraph 34 and the case-law cited).
58. Furthermore, measures taken on grounds of public policy or of public security are to be based exclusively on the personal conduct of the individual concerned. Such measures can thus not be ordered automatically on general preventive grounds following a criminal conviction ( Polat , paragraphs 31 and 35).
59. The existence of a previous criminal conviction can, therefore, only be taken into account in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy ( Polat , paragraph 32 and the case-law cited).
60. It is therefore for the national authorities concerned to assess on a case-by-case basis the personal conduct of the offender and whether it constitutes a present, genuine and sufficiently serious threat to public policy and security, and those authorities are also required to observe both the principle of proportionality and the fundamental rights of the person concerned. In particular, a measure ordering expulsion based on Article 14(1) of Decision No 1/80 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 (see Derin , paragraph 74).