Selma Kadiman v Freistaat Bayern.
Date: 1997-04-17
27 In order to answer that question, it must first be noted that the first indent of Article 7 of Decision No 1/80, in the same way as Article 6(1) and the second paragraph of Article 7 of that decision, 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, 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.
28 Like Article 6(1) (see in particular Case C-192/89 Sevince [1990] ECR I-3461, paragraph 26) and the second paragraph of Article 7 (see Case C-355/93 Eroglu v Land Baden-Württemberg [1994] ECR I-5113, paragraph 17), the first paragraph of Article 7 of Decision No 1/80 thus 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.
29 Next, the specific periods of legal residence referred to in the first paragraph of Article 7 necessarily imply the existence, as regards the members of the family of a Turkish worker who are authorized to join him in the host Member State, of a right of residence during such periods, since the effect of withholding such a right would be to negate the possibility offered to the persons concerned of residing in that Member State. Moreover, without a right of residence, the authorization granted to the family members concerned in order to join the Turkish worker in the territory of the host Member State would itself be rendered entirely inoperative.
30 Finally, it must be emphasized that, although the social provisions of Decision No 1/80, which include the first paragraph of  Article 7, constitute a further stage in securing freedom of movement for workers on the basis of Articles 48, 49 and 50 of the Treaty, and although, therefore, the Court has held that it is essential to transpose, so far as possible, the principles enshrined in those Treaty articles to Turkish workers who enjoy the rights conferred by that decision (see Case C-434/93 Bozkurt v Staatssecretaris van Justitie [1995] ECR I-1475, paragraphs 14, 19 and 20, and Case C-171/95 Tetik [1997] ECR I-0000, paragraph 20), the fact nevertheless remains that, as the law stands at present, Turkish nationals are not entitled to move freely within the Community but benefit only from certain rights in the host Member State whose territory they have lawfully entered and where they have been in legal employment for a specified period (Tetik, cited above, paragraph 29) or, in the case of members of a Turkish worker's family, they have been authorized to join him and have been legally resident there for the period laid down in the two indents of the first paragraph of Article 7.
31 It is also apparent from settled case-law (see in particular Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781, paragraph 25) that Decision No 1/80 does not encroach upon the competence of the Member States to regulate both the entry into their territories of Turkish nationals and the conditions under which they take up their first employment, but merely regulates, in Article 6, the situation of Turkish workers already legally integrated into the labour force of the host Member State.
32 Similarly, as regards the first paragraph of Article 7, that decision 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 authorize any such persons to join the Turkish worker legally employed there, to regulate their stay until they become entitled to respond to any offer of employment and, if necessary, to allow them, under such conditions as it may specify, to take up employment before the expiry of the initial period of three years laid down by the first indent.
33 With regard more particularly to the residence of a family member during that initial period of three years, at issue in the main proceedings, it must be pointed out that, although, as is apparent from paragraph 29 of this judgment, a Member State which has authorized a person to enter its territory in order to join a Turkish worker cannot then withhold from that person the right to reside there in order to enable the family to be together, that Member State nevertheless retains the power to subject that right of residence to conditions of such a kind as to ensure that the presence of the family member in its territory is in conformity with the spirit and purpose of the first paragraph of Article 7 of Decision No 1/80.
34 In that connection, it must be emphasized that the purpose of that provision is to favour employment and residence of Turkish workers duly registered as belonging to the labour force of a Member State by ensuring that their family links are maintained there.
35 Accordingly, it provides, for the initial stage, that family members of a Turkish worker already duly registered as belonging to the labour force of a Member State may be authorized to join him and take up residence there so as to enable the family to be together. In order to deepen the integration of a migrant Turkish worker's family unit in the host Member State, it also grants those family members the right, after a specified time, to take up employment in that State.
36 Thus, the system established by the first paragraph of Article 7 is designed to create conditions conducive to family unity in the host Member State, first by enabling family members to be with a migrant worker and then by consolidating their position by granting them the right to obtain employment in that State.
37 In view of its meaning and purpose, that provision cannot therefore be interpreted as merely requiring the host Member State to have authorized a family member to enter its territory to join a Turkish worker without at the same time requiring the person concerned to continue actually to reside there with the migrant worker until he or she becomes entitled to enter the labour market.
40 Where, in circumstances such as those of the main proceedings, the Turkish national can rely only on his status as a member of the family of a migrant worker within the meaning of the first paragraph of Article 7 because he does not fulfil the conditions for claiming, in his own right, the rights provided for by Article 6(1), the practical effect of Article 7 requires, as emphasized in paragraph 37 of this judgment, that the unity of the family, in pursuit of which the person concerned entered the territory of the Member State concerned, should be evidenced for a specified period by actual cohabitation in a household with the worker.
41 It follows that Decision No 1/80 does not in principle prevent the authorities of a Member State from making extension of the residence permit of a family member authorized to join a Turkish worker in that Member State in order to enable the family to be together 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.
42 As the Commission has convincingly argued, the position would be different only if objective circumstances justified the failure of the migrant worker and the member of his family to live under the same roof in the host Member State. That would be the case in particular if the distance between the worker's residence and the place of employment of the member of his family or a vocational training establishment attended by that person required him or her to live in separate accommodation.
44 In view of the foregoing considerations, the answer to the first question must be that the first paragraph of Article 7 of Decision No 1/80 does not in principle preclude the competent authorities of a Member State from requiring that the family members of a Turkish worker, referred to by that provision, live with him for the period of three years prescribed by the first indent of that article in order to be entitled to reside in that Member State. There may however be objective reasons to justify the family member concerned living apart from the Turkish migrant worker.
The second and third questions
47 It thus follows from the meaning and purpose of that provision that the family member must in principle reside uninterruptedly during those three years with the Turkish worker.
48 However, that interpretation does not mean that the person concerned may not be absent from the family residence for a reasonable period and for legitimate reasons, for example in order to take holidays or visit his family in his country of origin. Such short interruptions of cohabitation, not intended to detract from residence together in the host Member State, must be treated as periods in which the family member concerned actually lived with the Turkish worker.
49 The same must apply, a fortiori, to a period of less than six months spent by the person concerned in his country of origin for reasons beyond his control.
50 In those circumstances, an intermediate stay of that kind must be taken into account for the purpose of calculating the three-year period of legal residence within the meaning of the first indent of the first paragraph of Article 7 of Decision No 1/80.
51 As regards the limitation of the period of validity of the residence permit held by the Turkish worker's family member in the host Member State, it must be observed that, whilst the Member States retain the power to lay down the conditions under which that family member may enter their territory and reside there until he or she becomes entitled to respond to any offer of employment (see paragraphs 32 and 33 of this judgment), the fact nevertheless remains that the rights conferred by the first paragraph of Article 7 on family members of a Turkish worker are granted by that provision to the persons concerned regardless of the issue by the authorities of the host Member State of a specific administrative document, such as a residence permit (see, by analogy with Article 6 of Decision No 1/80, Bozkurt, cited above, paragraphs 29 and 30).
54 In view of the foregoing, the answer to the second and third questions must be that the first indent of the first paragraph of Article 7 of Decision No 1/80 is to be interpreted as meaning that the family member concerned is in principle required to reside uninterruptedly for three years in the host Member State. However, account must be taken, for the purpose of calculating the three-year period of legal residence within the meaning of that provision, of an involuntary stay of less than six months by the person concerned in his country of origin. The same applies to the period during which the person concerned was not in possession of a valid residence permit, where the competent authorities of the host Member State did not claim on that ground that the person concerned was not legally resident within national territory, but on the contrary issued a new residence permit to him.