Inan Cetinkaya v Land Baden-Württemberg.
Date: 2004-11-11
22. The requirement that family members obtain authorisation to join the Turkish worker is explained by the fact that the provisions concerning the Association between the European Economic Community and the Republic of Turkey (‘the EEC-Turkey Agreement’) do not encroach upon the competence retained by the Member States to regulate both the entry into their territories of Turkish nationals and the conditions under which they may take up their first employment, so that the first admission of such nationals to the territory of a Member State is, as a rule, governed exclusively by that State’s own domestic law (see, inter alia, Case C 275/02 Ayaz  [2004] ECR I-0000, paragraph 35).
23. Inasmuch as that requirement is thus intended to exclude from the scope of the first paragraph of Article 7 of Decision No 1/80 members of a Turkish worker’s family who have entered and reside in the host Member State in breach of that Member State’s legislation, it cannot validly be raised as against a member of that family who, as in the case before the national court, was born and has always lived in that Member State and who therefore did not require authorisation to join the worker concerned.
25. That interpretation is the only one to ensure the coherence of the system and to permit the unqualified realisation of the objective pursued by the first paragraph of Article 7, which is to create conditions conducive to family reunification in the host Member State, first by enabling family members to be with a migrant worker and then after some time by consolidating their position there by granting them the right to obtain employment in that State (see, in particular, Case C-351/95 Kadiman  [1997] ECR I-2133, paragraphs 34 to 36, and Ayaz , paragraph 41).
30. As the Court has observed, Member States are no longer entitled to attach conditions to the residence of a member of a Turkish worker’s family beyond the period of three years provided for in the first indent of the first paragraph of Article 7 of Decision No 1/80 during which the person concerned must, in principle, actually live with that worker; and that must a fortiori be the case for a migrant Turkish person who satisfies the conditions laid down in the second indent of the first paragraph of Article 7 of Decision No 1/80 (see, in particular, Case C‑329/97 Ergat  [2000] ECR I-1487, paragraphs 37 to 39).
31. Thus, as regards family members covered by the first paragraph of Article 7 of Decision No 1/80 who, like Mr Cetinkaya, enjoy, after five years’ legal residence with the worker, 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 persons concerned derive 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, in particular, Ergat , paragraph 40).
32. In those circumstances, 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, of three and five years respectively, with the Turkish worker duly registered as belonging to the labour force of the host Member State, even if, after those periods of residence, the worker himself no longer belongs to the labour force of that Member State, inter alia because he has exercised his retirement rights.
34. In those circumstances, the answer to the first question must be that the first paragraph of Article 7 of Decision No 1/80 must be interpreted as applying to a person who has attained his majority and is the child of a Turkish worker duly registered as belonging to the labour force of the host Member State, even though that person was born in and has always resided in the host State.
Second question
36. The Court has already held that the limits to the right of residence, as the corollary of the right to have access to the employment market and take up employment, are of two kinds. 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 order, public security or public health. 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 as a rule loses the legal status he acquired under the first paragraph of Article 7 of Decision No 1/80 (see Ergat , paragraphs 45, 46 and 48).
38. It follows that the first paragraph of Article 7 of Decision No 1/80 must be interpreted as meaning that the rights which that provision confers on members of the family of a Turkish worker who fulfils the minimum residence condition may be limited only on the basis of Article 14 of Decision No 1/80, namely on grounds of public policy, public security or public health, or because the person concerned has left the host State for a significant length of time without legitimate reason.
42. The Court has deduced from, first, the very wording of Article 12 of the Association Agreement and Article 36 of the Additional Protocol, which was signed in Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1973 C 113, p. 18) and, second, the objective of Decision No 1/80, that the principles laid down in Article 48 of the EC Treaty (now, after amendment, Article 39 EC), Article 49 of the EC Treaty (now, after amendment, Article 40 EC) and Article 50 of the EC Treaty (now Article 41 EC) must be extended, so far as possible, to Turkish nationals who enjoy the rights conferred by that decision (see, in particular, Ayaz , paragraph 44).
43. It follows that, when determining the scope of the public policy exception provided for in Article 14(1) of Decision No 1/80, reference should be made to the interpretation given to that exception in the field of freedom of movement for workers who are nationals of a Member State of the Community. Such an approach is all the more justified because Article 14(1) is formulated in almost identical terms to Article 48(3) of the Treaty (Case C-340/97 Nazli  [2000] ECR I‑957, paragraph 56).
44. As regards, more specifically, Article 3 of Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1963‑64, p. 117), the Court has held that, for the purpose of deciding whether the national of another Member state may be expelled in application of the exception on grounds of public policy, the competent national authorities must assess, on a case-by-case basis, whether the measure or the circumstances which gave rise to that expulsion order prove the existence of personal conduct constituting a present threat to the requirements of public policy. No more specific information as to the date to be used as a reference when determining the ‘presence’ of the threat is evident from the wording of Article 3 of Directive 64/221 or the Court’s case-law (Joined Cases C‑482/01 and C-493/01 Orfanopoulos and Oliveri  [2004] ECR I‑0000, paragraph 77).
45. In Orfanopoulos and Oliveri  (paragraph 82), the Court held that Article 3 of Directive 64/221 precludes a national practice whereby the national courts may not take into consideration, in reviewing the lawfulness of the expulsion of a national of another Member State, factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constitutes to the requirements of public policy.
47. Therefore, having regard to the principles applicable in relation to freedom of movement for workers and extended to Turkish workers who enjoy the rights recognised by Decision No 1/80, national courts must take into consideration, in reviewing the lawfulness of the expulsion of a national of another Member State, factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constitutes to the requirements of public policy.