Ibrahim Altun v Stadt Böblingen.
Date: 2008-12-18
20. According to settled case-law, the first paragraph of Article 7 of Decision No 1/80 has direct effect in the Member States, with the result that Turkish nationals fulfilling the conditions which it lays down may directly rely on the rights it confers on them (see, Case C-351/95 Kadiman  [1997] ECR I-2133, paragraph 28, and Case C-325/05 Derin  [2007] I-6495, paragraph 47).
21. The Court has also held that the rights granted by the first paragraph of Article 7 to the child of a Turkish worker with regard to employment in the Member State concerned necessarily imply the existence of a concomitant right of residence for that child, without which the right of access to the employment market and actually to take up paid employment would be rendered totally ineffective (see, in particular, Derin , paragraph 47).
22. As is apparent from the wording of the first indent of the first paragraph of Article 7 itself, the right granted to the child of a Turkish worker to respond to any offer of employment in the host Member State is subject to two conditions: the worker must be duly registered as belonging to the labour force of that State and the child must have been legally resident there for at least three years. It must be pointed out that the first condition does not refer to the concept of ‘legal employment’ which appears in Article 6(1) of Decision No 1/80, but relates solely to the notion of being ‘duly registered as belonging to the labour force’.
23. As regards the concept of a Turkish worker being duly registered as belonging to the labour force, the Court has held, in the context of the interpretation of Article 6(1) of Decision No 1/80, that it embraces all workers who have met the conditions laid down by law or regulation in the host Member State and who are thus entitled to pursue an occupation in its territory (see, Case C-1/97 Birden  [1998] ECR I-7747, paragraph 51, and Case C-294/06 Payir and Others  [2008] ECR I-203, paragraph 29).
24. Furthermore, notwithstanding a temporary interruption of the employment relationship a Turkish worker continues to be duly registered as belonging to the labour force in the host Member State, for the purposes of Article 6(1) of Decision No 1/80, during the period which is reasonably necessary for him to find other paid employment, regardless of the cause of the absence of the person concerned from the labour force provided that that absence is temporary (Case C-383/03 Dogan  [2005] ECR I-6237, paragraphs 19 and 20).
25. A Turkish worker is excluded from the labour force only if objectively he no longer has any chance of rejoining the labour force or has exceeded a reasonable time-limit for finding new employment after the end of the period of inactivity (see, to that effect, Case C-340/97 Nazli [2000] ECR I-957, paragraph 44, and Dogan , paragraph 23).
28. A different interpretation of that concept, according to whether it is considered in the context of Article 6 of Decision No 1/80 or Article 7, would upset the coherence of the system put in place by the Association Council in order gradually to consolidate the situation of Turkish workers in the host Member State.
29. It must be recalled that Decision No 1/80 aims to promote the gradual integration in the host Member State of Turkish nationals who satisfy the conditions laid down in one of the provisions of that decision and thus enjoy the rights conferred on them by the decision ( Derin , paragraph 53).
30. As regards the residency condition, the first indent of the first paragraph of Article 7 of Decision No 1/80 imposes on the family member of a Turkish worker the obligation to reside with the latter for a continuous period of at least three years.
31. The settled case-law of the Court requires, in that regard, that the unity of the family, in pursuit of which the family member of a Turkish worker 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 (see Case C-329/97 Ergat  [2000] ECR I‑1487, paragraph 36, and Derin , paragraph 51).
35. The Court has held that the rights conferred by the first paragraph of Article 7 of Decision No 1/80 may be exercised by the family member after the period of residence with the Turkish worker duly registered as belonging to the labour force of the host Member State, even if, after that period of residence, the worker himself no longer belongs to the labour force of that Member State (Case C-467/02 Cetinkaya  [2004] ECR I-10895, paragraph 32).
36. The fact that the condition of eligibility for the right of access to employment in the host Member States disappears with respect to the worker after a family member has himself acquired that right is not therefore capable of calling into question the right acquired by that family member.
37. It must be held that, for the purposes of the acquisition, in accordance with the first paragraph of Article 7 of Decision No 1/80, of the right of access to employment in the host Member State by the family member of a Turkish worker, the condition that the latter be duly registered as belonging to the labour force must have been fulfilled for at least the three-year period of cohabitation.
42. According to settled case-law, the exercise of the rights that Turkish nationals derive from Decision No 1/80 is not subject to any condition relating to the ground on which the right of entry and of residence was originally granted in the host Member State (see, to that effect, with respect to Article 6 of Decision No 1/80, Case C-237/91 Kus  [1992] ECR I-6781, paragraphs 21 and 22, and Payir and Others , pargraph 40; and, with respect to Article 7, Case C-335/93 Eroglu  [1994] ECR I-5113, paragraph 22).
43. Thus, the first paragraph of Article 7 of Decision No 1/80 does not make the recognition of the right of access to employment in the host Member State and, concomitantly, the right of residence in that State of family members of a Turkish worker, dependent on the circumstances in which the right of entry and residence were obtained by the latter.
48. It is true that Decision No 1/80 does not encroach upon the competence retained by the Member States to regulate both the entry into their territory of Turkish nationals and the conditions under which they may take up their first employment (see, in particular, Payir and Others , paragraph 36).
53.  According to the case-law of the Court, the legality of the employment of a Turkish national in the host Member State presupposes a stable and secure situation as a member of the labour force of that Member State and implies, by virtue of that situation, an undisputed right of residence (Case C-192/89 Sevince  [1990] ECR I-3461, paragraph 30, and Case C-4/05 Güzeli  [2006] ECR I-10279, paragraph 38).
54. In this context, the Court has held that periods in which a Turkish national is employed under a residence permit which was issued to him only as a result of fraudulent conduct which has led to a conviction are not based on a stable situation and such employment cannot be regarded as having been secure in view of the fact that, during the periods in question, the person concerned was not legally entitled to a residence permit (see, in particular, Case C-285/95 Kol  [1997] ECR I-3069, paragraph 27, and Case C-37/98 Savas  [2000] ECR I-2927, paragraph 61).
55. The employment of a Turkish national under a residence permit issued as a result of fraudulent conduct which has led to a conviction, cannot give rise to any rights in favour of the Turkish worker, or arouse any legitimate expectation on his part ( Kol , paragraph 28).
56. Furthermore, given the connection which exists between the rights which the Turkish worker has by virtue of Decision No 1/80 and those on which his family members who have been allowed to join him may rely on the basis of Article 7 thereof, such fraudulent conduct by that worker is capable of having effects as regards legal rights of his family members.
57. Those effects must, however, be determined with regard to the date on which the national authorities of the host Member State adopted a decision to withdraw the residence permit of that worker.
59. However, if the latter have acquired an autonomous right of access to the employment market of the host Member State and, as a corollary, a right of residence there, those rights may no longer be called into question on account of irregularities which, in the past, affected the Turkish worker's right of residence.
60. Any other solution would be contrary to the principle of legal certainty which, as is clear from settled case-law, requires, particularly, that rules of law be clear, precise and predictable in their effects, in particular where they may have negative consequences on individuals (see, to that effect, Case C-143/93 Van Es Douane Agenten  [1996] ECR I-431, paragraph 27, and Case C-158/07 Förster  [2008] ECR I-0000, paragraph 67).
61. The right of family members of a Turkish worker to take up employment pursuant to the first paragraph of Article 7 of Decision No 1/80 would, furthermore, 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 conferred on Turkish migrants by that decision (see Ergat , paragraph 41, and Case C-453/07 Er  [2008] ECR I-0000, paragraph 27).
62. There can be only two kinds of restrictions on 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, namely, either a restriction based on the presence of the Turkish migrant in the host Member State where he 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 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, in particular, Cetinkaya , paragraphs 36 and 38 and Er , paragraph 30).
63. The exhaustive nature of the restrictions set out in the preceding paragraph would be undermined if the national authorities were able to make subject to conditions, limit or disregard the autonomous rights acquired by the family members of migrant workers by means of a re-examination or a fresh assessment of the circumstances in which the right to enter and right of residence were granted to the latter.