Ceyhun Aydinli v Land Baden-Württemberg.
Date: 2005-07-07
19. Furthermore, Article 6(1) of Decision No 1/80 applies ‘subject to the provisions of Article 7 on free access to employment for members of [the] family’ of a Turkish worker. It follows that those provisions constitute a lex specialis  in relation to the rights which are gradually extended according to the period of stable paid employment, laid down in the three indents of Article 6(1).
22. In order to provide a useful reply to those questions it is necessary to consider, first of all, the case-law which provides that the first sentence 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 legal labour force of the host Member State, has either been authorised to join that worker to reunite the family or was born and has always resided in that State. The applicability of the first sentence of Article 7 to that type of situation is independent of the fact that, at the time of the proceedings, the person concerned is an adult no longer living with his family, but living independently and working in the Member State concerned (see, to that effect, Case C-329/97 Ergat  [2000] ECR I-1487, paragraphs 26 and 27, and Case C-467/02 Cetinkaya  [2004] ECR I‑0000, paragraph 34).
23. Such a Turkish national cannot, therefore, forfeit a right acquired on the basis of that provision as a result of circumstances arising such as those referred to in the previous paragraph. Furthermore, the right of access to employment in the host Member State by members of a Turkish worker’s family, after a certain period, is specifically intended to consolidate their position in that State by offering them the chance to become independent.
24. Furthermore, although the first indent of the first sentence of Article 7 of Decision No 1/80 requires, as a rule, that a member of the family of a Turkish worker must actually reside with him for the three years during which the person concerned fails to satisfy the conditions for access to the labour market in the host Member State (see Case C-351/95 Kadiman  [1997] ECR 2133, paragraph 33, 37, 40, 41 and 44, 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 sentence of Article 7 (see Ergat , paragraphs 37 to 39, and Cetinkaya , paragraph 30).
25. In that connection, the Court has specifically held, as regards family members covered by the first sentence of Article 7 of Decision No 1/80 who, like Mr Aydinli, enjoy the right to free access to employment in the host Member State after five years of legal residence in accordance with the second indent of that provision, not only that the direct effect of that provision means that the person concerned derives 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 Ergat , paragraph 40, Cetinkaya , paragraph 31, and, by analogy, Case C‑383/03 Dogan  [2005] ECR I-0000, paragraph 14).
26. 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 apply after the family member has acquired the relevant right cannot affect the enjoyment of that right.
27. Secondly, it is clear from the case-law that the limits on the right of residence, as a corollary of the right to access to the employment market and the right to take up employment which members of the family of a Turkish worker who satisfy the conditions laid down in the first sentence of Article 7 of Decision No 1/80 enjoy, are of two kinds. Either the presence of a Turkish migrant in the host Member State 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 Decision No 1/80, or the person concerned has left the territory of that State for a significant length of time without legitimate reason (see, to that effect, Ergat , paragraphs 45, 46 and 48, and Cetinkaya , paragraph 36).
28. On the other hand, the first sentence of Article 7 of Decision No 1/80 does not permit the rights conferred by that provision on a Turkish national in Mr Aydinli’s position to be limited following the imposition of a custodial sentence, even a sentence of several years which is initially unconditional followed by long-term drug therapy, on the ground of his prolonged absence from the labour market (see, by analogy, Cetinkaya , paragraph 39).
29. The interpretation set out in the preceding paragraph is borne out especially by the fact that under the first sentence of Article 7, unlike Article 6(1) of Decision No 1/80, which concerns Turkish workers, the creation of employment rights for family members is not conditional on those family members being duly registered as belonging to the labour force of the State concerned and having worked for a certain period, but simply to a requirement of actual residence with the worker from whom they derive their rights for an initial period of three years. In addition, the first and second indents of the first sentence of Article 7 grant family members of a Turkish worker a right to employment, but do not impose any obligation on them to work such as that set out in the first sentence of Article 1 of Decision No 1/80.
30. It follows that, first, the provisions of Article 6(2) of Decision No 1/80 are in no case applicable in the context of Article 7. It is solely for the purpose of calculating the periods of employment necessary to acquire the rights provided for in Article 6(1) that Article 6(2) sets out the effects, for the purposes of that calculation, of the various causes of interruption of employment (see Dogan , paragraph 15).
31. Secondly, a member of the family of a Turkish worker, who satisfies the conditions laid down in the first sentence of Article 7 of Decision No 1/80 and who wishes to work in the host Member State, does not have to comply with the more rigorous conditions laid down in that regard in Article 6(1) (see to that effect, by analogy, Case C-210/97 Akman  [1998] ECR I-7519, paragraphs 48 to 50).
32. Taking account of all of the foregoing considerations, the answer to the fifth, sixth and seventh questions must be that a Turkish national who enjoys the right of free access to any paid employment of his choice, pursuant to the second indent of the first sentence of Article 7 of Decision No 1/80, does not forfeit that right either as a result of his prolonged absence from the labour market due to imprisonment, even for a period of several years followed by long-term drug treatment, or on account of the fact that at the time of the decision to expel him he was an adult and no longer resided with the Turkish worker from whom he derived his right of residence but lived independently of him.
The first to fourth questions and the eighth and ninth questions