Staatssecretaris van Justitie v Tayfun Kahveci and Osman Inan.
Date: 2012-03-29
23. It must be noted, as a preliminary point, that Article 7 of Decision No 1/80 forms an integral part of European Union law (see Case C‑192/89 Sevince  [1990] ECR I‑3461, paragraphs 8 and 9). The Member States are thus bound by obligations arising under that provision in precisely the same way as they are under a duty to observe rights established by European Union legislation.
24. Next, it must be borne in mind that, in accordance with settled case-law, the first paragraph of Article 7 of Decision No 1/80 has direct effect, so that Turkish nationals to whom that provision applies have the right to rely on it directly before the courts of the Member States in order to have rules of national law which are contrary to it disapplied (see, to that effect, inter alia, Case C‑351/95 Kadiman [1997] ECR I‑2133, paragraph 28; Case C-303/08 Bozkurt  [2010] ECR I‑0000, paragraph 31; and Case C‑484/07 Pehlivan  [2011] ECR I‑0000, paragraph 39).
25. That having been said, in order to answer the questions posed, that provision should be interpreted in the light of its wording, the objective which it pursues and the system it establishes (see, to that effect, Case C-465/04 Honyvem Informazioni Commerciali  [2006] ECR I-2879, paragraph 17).
26. 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 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, second, that he has been authorised by the competent authorities of that State to join that worker there (see Bozkurt , paragraph 26).
27. Where those conditions are met, it remains to be established, for the purposes of the application of the first paragraph of Article 7 of Decision No 1/80, whether the Turkish worker concerned has been legally resident for a certain period on the territory of the host Member State with the worker from whom he derives his rights (see, inter alia, Case C-373/03 Aydinli  [2005] ECR I‑6181, paragraph 29).
28. Consequently, the Court has already held that a member of the family of a worker holding only Turkish nationality necessarily enjoys, if he satisfies the conditions indicated in paragraphs 26 and 27 of the present judgment, a right of residence in that State which is based directly on the first paragraph of Article 7 of Decision No 1/80 ( Pehlivan , paragraph 43).
32. 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 (see, inter alia, Case C‑65/98 Eyüp  [2000] ECR I‑4747, paragraph 26; Case C-467/02 Cetinkaya  [2004] ECR I‑10895, paragraph 25; and Bozkurt , paragraph 33).
33. Thereafter, 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 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; Case C‑325/05 Derin  [2007] ECR I‑6495, paragraphs 50 and 71; and Bozkurt , paragraph 34).
34. In the light of the general objective pursued by Decision No 1/80, which is, unlike that of a cooperation agreement such as the agreement concluded between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 27 April 1976 and approved on behalf of the Community by Council Regulation (EEC) No 2211/78 of 26 September 1978 (OJ 1978 L 264, p. 1), 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 (see, inter alia, Case C‑179/98 Mesbah  [1999] ECR I‑7955, paragraph 36, and Case C‑329/97 Ergat  [2000] ECR I‑1487, paragraph 43), 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 (see Pehlivan , paragraph 45).
36. In addition, it must be pointed out that the Court has held that Turkish nationals who satisfy the conditions laid down in one of the provisions of Decision No 1/80 accordingly enjoy the rights conferred on them by that decision (see, inter alia, Case C‑337/07 Altun  [2008] ECR I‑10323, paragraphs 28 and 29, and Bozkurt , paragraph 39) and that Member States are not entitled to provide for rules which differ from those resulting from Decision No 1/80 or which impose conditions other than those provided for in that decision (see Pehlivan , paragraph 56).
37. According to the Court’s settled case‑law, it follows both from the primacy of European Union law and from the direct effect of a provision such as the first paragraph of Article 7 of Decision No 1/80 that Member States are not permitted to modify unilaterally the scope of the system of gradually integrating Turkish nationals in the host Member State and therefore no longer have the power to adopt measures which may undermine the legal status expressly conferred on such nationals by the law resulting from the EEC-Turkey Association Agreement (see Pehlivan , paragraph 56 and the case-law cited).
39. Accordingly, it must be stated that, as regards Turkish nationals such as Mr Kahveci and Mr Inan, 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, and Bozkurt , paragraph 54).
40. In that regard, the Court has held that it is 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 that 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, and Bozkurt , paragraph 60).