Sezgin Ergat v Stadt Ulm.
Date: 2000-03-16
26 As regards the first paragraph of Article 7 of Decision No 1/80, which is the subject of the question referred for a preliminary ruling, the German Government, at the hearing, first disputed whether a Turkish national in Mr Ergat's position had the status of a member of a Turkish worker's family, on the ground that, on the date when he made his application to extend his residence permit, he was an adult living independently in Germany
27 On that point, it is sufficient to point out that, in the case in the main proceedings, it is common ground that Mr Ergat was authorised, at the age of eight, to join his parents in Germany who were in paid legal employment there at the time, so that he must be considered to be a member of a Turkish worker's family within the meaning of the aforesaid provision. That being so, the national court was right to start from the premiss that Mr Ergat had the status of member of the family of a Turkish worker belonging to the legal labour force of the host Member State.
29 The fact that between 1985 and 1989 Mr Ergat had applied three times for extension of his temporary residence permit after it had expired, so that he was not in possession of a valid residence permit for brief periods, is, in any event, irrelevant in that connection, since the competent authorities of the host Member State did not claim that he was not legally resident within national territory on that ground, but on the contrary issued a new residence permit to him (see, to this effect, Case C-351/95 Kadiman [1997] ECR I-2133, paragraph 54, and Case C-98/96 Ertanir [1997] ECR I-5179, paragraph 69).
34 For the purpose of answering that question, it must first be noted that, according to the case-law of the Court, 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 have the right, under the first indent of that provision, 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, and, under the second indent, 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 (Kadiman, cited above, paragraphs 27 and 28).
35 Moreover, the Court has also held that the first paragraph of Article 7 provides that the members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State are entitled to take up employment in that country after being legally resident there for a specified period, without thereby affecting the power of the Member State concerned to authorise any such persons 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, cited above, paragraphs 32 and 51).
36 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 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 (Kadiman, cited above, paragraphs 33, 37 and 40).
37 Consequently, the Court has construed Decision No 1/80 as meaning that it does not in principle prevent the authorities of a Member State from making the extension of the residence permit of a family member authorised to join a Turkish worker in that Member State 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, cited above, paragraphs 41 and 44).
38 However, it follows logically from the judgment in Kadiman, cited above, that Member States are no longer entitled to attach conditions to the residence of a member of a Turkish worker's family after that period of three years.
39 This must a fortiori be the case for a migrant Turk who, like Mr Ergat, fulfils the conditions laid down in the second indent of the first paragraph of Article 7 of Decision No 1/80.
40 Thus, at the very least from the time when a Turkish national covered by the first paragraph of Article 7 enjoys, after five years' legal residence for the purpose of re-uniting a worker's family, the right of free access to employment in the host Member State under the second indent of that provision, not only does the direct effect of that provision mean that the person concerned derives an individual employment right directly from Decision No 1/80 but also the effectiveness of that right necessarily implies a concomitant right of residence which is also founded on Community law and is independent of the continuing existence of the conditions for access to those rights (see, by analogy, as regards the third indent of paragraph 1 of Article 6 of Decision No 1/80, Case C-192/89 Sevince [1990] ECR I-3461, paragraphs 29 and 31, and Case C-171/95 Tetik [1997] ECR I-329, paragraphs 26, 30 and 31; as regards the second paragraph of Article 7 of that decision, Case C-355/93 Eroglou [1994] ECR I-5113, paragraph 20, and Case C-210/97 Akman [1998] ECR I-7519, paragraph 24).
41 The unconditional right to take up any employment freely chosen by the person concerned, untramelled, moreover, by any priority for workers of Member States, provided for by the second indent of the first paragraph of Article 7 of Decision No 1/80 would be rendered wholly meaningless if the competent national authorities were able to impose conditions or restrictions of any sort on the application of the specific rights which were conferred on migrant workers by that decision (see inter alia, by analogy, Case C-36/96 Günaydin [1997] ECR I-5143, paragraphs 37 to 39 and 50).
42 Whilst, under Community law as it now stands, the Member States have retained the power to regulate both the entry into their territory of a member of the family of a Turkish worker and the conditions of his residence during the initial three-year period before he has the right to respond to any offer of employment, it is, on the other hand, no longer open to them to adopt measures relating to residence which are such as to impede the exercise of the rights expressly conferred by Decision 1/80 on a person who satisfies the conditions it lays down and who is therefore already legally integrated into the host Member State, given that the right of residence is essential to access to and the pursuit of any paid employment (see inter alia Eroglou, cited above, paragraph 20).
43 Thus, since the objective of Decision No 1/80, which is to improve, in the social field, the treatment accorded to workers and members of their families with a view to achieving gradually freedom of movement for workers (see, most recently, Case C-1/97 Birden [1998] ECR I-7747, paragraph 52), would not be attained if restrictions imposed by a Member State, particularly as regards residence, could have the effect of depriving the person concerned of the benefit of the rights which the second indent of the first paragraph of Article 7 of that decision confers on him unconditionally, precisely at the time when, by virtue of access to employment of his choosing, he has the prospect of becoming permanently integrated in his host Member State.
44 That interpretation is, moreover, confirmed by the judgment in Akman, cited above. In that judgment, which concerns the second paragraph of Article 7 of Decision No 1/80, regulating the right of access to employment of children of Turkish workers in the Member State where they have completed a course of vocational training, the Court ruled that once a child has completed his education and acquired the right, conferred directly by that decision, of access to the employment market of the host Member State and, as a result, the right to obtain a residence permit there for that purpose, it is not necessary for the parent of that child still to have the status of worker, or to continue to reside in that State, provided that, in the past, that parent was legally employed there for at least three years.
45 There are, admittedly, limits to that right of residence, which is the corollary of the right to have access to the employment market and take up employment.
46 First, Article 14(1) of Decision No 1/80 itself provides Member States with the possibility of placing restrictions on the presence of a migrant Turk in the host Member State in individual and appropriately justified cases, where, through his own conduct, he constitutes a genuine and serious threat to public policy, public security or public health.
48 Second, a family member, duly authorised to join a Turkish worker in a Member State, who leaves the territory of the host State for a significant length of time without legitimate reason (see, in that connection, Kadiman, cited above, paragraph 48), as a rule loses the legal status he acquired under the first paragraph of Article 7.
49 It follows, first, that the authorities of the Member State concerned are entitled to require that, should the person concerned subsequently wish to settle in that State again, he must make a fresh application either for authorisation to join the Turkish worker if he is still dependent on that worker, or to be admitted, with a view to work, on the basis of Article 6 of Decision No 1/80.
51 As regards, in this case, Mr Ergat's return to Turkey for about a year from August 1992, it must, however, be observed that, apart from the fact that this circumstance, which came about after the date of the application for extension of the residence permit, is not, in any event, such as to justify the rejection of that application and that it is therefore not necessary to raise the question whether he went of his own accord or in consequence of the threat of deportation with which he was faced, it is common ground that the competent German authorities did not make his readmission to Germany conditional upon the issue of a fresh authorisation to enter, with the result that he was able to take up a new job on the basis of the work permit of unlimited duration which he obtained in 1989.
54 Community law has not excluded the power of Member States to adopt measures enabling the national authorities to have an exact knowledge of population movements affecting their territory (see, by analogy, Case 118/75 Watson and Belmann [1976] ECR 1185, paragraph 17).
56 In that connection, it follows from settled case-law on the subject of failure to comply with the formalities required to establish the right of residence of an individual enjoying the protection of Community law that, whilst Member States are entitled to make failure to comply with such provisions subject to penalties comparable to those attaching to minor offences committed by their own nationals, they are not entitled to impose a disproportionate penalty that would create an obstacle to that right of residence (see, by analogy, Case 157/79 Regina v Pieck [1980] ECR 2171, paragraph 19, and Case C-265/88 Messner [1989] ECR 4209, paragraph 14).
57 That applies in particular to a sentence of imprisonment and, a fortiori, to deportation, which negates the very right of residence conferred and guaranteed by Decision No 1/80 (see, by analogy, Watson and Belman, paragraph 20, Pieck, paragraph 19, and Messner, paragraph 14, cited above).
61 Finally, it must be added that, in any event, the issue of a residence permit does not constitute the basis of the right of residence which is conferred directly by Decision No 1/80, and that is so irrespective of whether the authorities of the host Member State have issued that particular document, which is merely evidence of the existence of that right.
62 It is settled case-law that, for purposes of recognition of a right of residence, a residence permit can only have declaratory and probative value (see, to that effect, Case C-434/93 Bozkurt [1995] ECR I-1475, paragraphs 29 and 30, and Günaydin, paragraph 49, Ertanir, paragraph 55, and Birden, paragraph 65, cited above).
63 That being so, a document of that nature cannot be deemed equivalent, for foreigners deriving rights from Decision No 1/80, to an authorisation of residence implying a discretion on the part of the national authorities such as is provided for foreigners in general (see, by analogy, Case 8/77 Sagulo [1979] ECR 1495, paragraph 8).
67 In view of all the foregoing considerations, the answer to the question referred for a preliminary ruling must be that a Turkish national, who has been authorised to enter a Member State for the purpose of re-uniting the family of a Turkish worker belonging to the legal labour force of that State, has been legally resident there for more than five years and has been in legal employment of various kinds, with interruptions, does not lose the benefit of the rights conferred on him by the second indent of the first paragraph of Article 7 of Decision No 1/80 and, in particular, the right to extend his residence permit in the host Member State, even where his residence permit had expired before the date on which he lodged an application to extend it which was refused by the competent national authorities.