Nural Ziebell v Land Baden-Württemberg.
Date: 2011-12-08
48. As the Court has held on numerous occasions, first, the first paragraph of Article 7 has direct effect in the Member States and, second, the employment-related rights that that provision confers on Turkish nationals necessarily mean that a concomitant right of residence in the host Member State must be acknowledged to exist (see, inter alia, Case C‑303/08 Bozkurt  [2010] ECR I-0000, paragraphs 31, 35 and 36, and also Case C‑484/07 Pehlivan  [2011] ECR I-0000, paragraphs 39 and 43).
49. According to equally consistent case-law, members of a Turkish worker’s family who fulfil the conditions laid down in the first paragraph of Article 7 of Decision No 1/80 can lose the rights conferred on them by that provision only in two cases, that is to say, either where the presence of the Turkish migrant in the host Member State constitutes, by reason of his personal conduct, a genuine and serious threat to public policy, public security or public health, within the terms of Article 14(1) of that decision, or where the person concerned has left the territory of that State for a significant length of time without legitimate reason (see, inter alia, Bozkurt , paragraph 42 and the case-law cited, and Pehlivan , paragraph 62).
52. After summarising the Court’s consistent case-law to the effect that both the very concept of public policy within the meaning of that provision and the relevant criteria in that regard and the guarantees on which the person concerned may rely in that context must be interpreted by analogy with the principles recognised for Union nationals in connection with Article 48(3) of the EEC Treaty (which became Article 48(3) EC, now Article 39(3) EC), as implemented and given specific expression in Directive 64/221 (see, inter alia, Case C‑340/97 Nazli  [2000] ECR I‑957, paragraphs 55, 56 and 63; Case C‑136/03 Dörr and Ünal  [2005] ECR I‑4759, paragraphs 62 and 63 and the case-law cited; and Bozkurt , paragraph 55 and the case-law cited), the Verwaltungsgerichtshof Baden-Württemberg asks the Court whether the rules laid down in that directive should be applied by analogy to Turkish nationals, as that directive has been repealed by Directive 2004/38 and the time-limit for transposition of the latter directive has expired.
58. It is true that, according to the Court’s consistent case-law referred to in paragraph 52 of this judgment, the principles enshrined in the Treaty articles relating to freedom of movement for workers must be extended, as far as possible, to Turkish nationals who enjoy rights under the EEC-Turkey Association. As the Court has held, such an interpretation by analogy must hold true not only for those Treaty articles themselves, but also for secondary legislation adopted on the basis of those articles which is intended to implement and give expression to them (see, regarding Directive 64/221, inter alia, Dörr and Ünal ).
61. It is settled case-law that an international treaty is to be interpreted not solely by reference to the terms in which it is worded but also in the light of its objectives (see, inter alia, Opinion 1/91 [1991] ECR I‑6079, paragraph 14, and Case C‑416/96 Eddline El-Yassini  [1999] ECR I‑1209, paragraph 47).
65. Moreover, according to Article 12 of the Association Agreement, ‘[t]he Contracting Parties agree to be guided by Articles [39 EC], [40 EC] and [41 EC] for the purpose of progressively securing freedom of movement for workers between them’. Article 36 of the Additional Protocol lays down the schedule for gradual implementation of free movement for workers between the Member States and the Republic of Turkey and provides that ‘the Council of Association is to decide on the rules necessary to that end’. Lastly, the third recital in the preamble to Decision No 1/80 states that it is aimed at improving the social treatment accorded to Turkish workers and members of their families.
66. It is precisely the wording of those provisions and the object pursued by them that has led consistent case-law since Case C‑434/93 Bozkurt [1995] ECR I‑1475, paragraphs 19 and 20, to hold that the principles enshrined in Articles 39 EC and 41 EC must be extended, as far as possible, to Turkish nationals who enjoy rights under the EEC-Turkey Association (see paragraph 58 of this judgment).
67. As regards, more specifically, the scope of the public policy exception provided for in Article 14(1) of Decision No 1/80, the Court has accordingly held that 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. The Court has further held that such an approach is all the more justified because Article 14(1) is formulated in almost identical terms to Article 39(3) EC (see, inter alia, Case C‑349/06 Polat  [2007] ECR I‑8167, paragraph 30 and the case-law cited).
68. It follows that, according to the Court’s case-law, such a transposition of the principles underlying the freedom of movement under European Union law may be justified only by the objective of progressively securing freedom of movement for Turkish workers pursued by the EEC-Turkey Association, as laid down in Article 12 of the Association Agreement (see, inter alia, Dörr and Ünal , paragraph 66). Yet Article 12, in referring to the Treaty articles relating to the free movement of workers, confirms that the purpose underpinning that association is solely economic in nature.
69. As regards, second, the European Union law at issue, it should be observed from the outset that Directive 2004/38 is based on Articles 12 EC, 18 EC, 40 EC, 44 EC and 52 EC. That directive, far from pursuing a purely economic objective, aims to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by the Treaty, and it aims in particular to strengthen that right (see Case C‑145/09 Tsakouridis [2010] ECR I‑0000, paragraph 23).
70. Thus, that directive establishes a considerably strengthened system of protection against expulsion measures, which provides for greater guarantees where the degree of integration of Union citizens in the host Member State is high ( Tsakouridis , paragraphs 25 to 28 and 40 and 41).
71. Moreover, the very concept of ‘imperative grounds’ of public security as set out in Article 28(3)(a) of Directive 2004/38, which is intended to cover a threat to public security presenting a particularly high degree of seriousness and allows for the adoption of an expulsion measure only in exceptional circumstances, has no equivalent in Article 14(1) of Decision No 1/80 ( Tsakouridis , paragraphs 40 and 41).
73. By contrast, the very concept of citizenship, as it results from the mere fact that a person holds the nationality of a Member State and not from the fact that that person has the status of a worker, and which, according to the Court’s settled case-law, is intended to be the fundamental status of nationals of the Member States (see, inter alia, Case C‑413/99 Baumbast and R  [2002] ECR I‑7091, paragraph 82, and Case C‑34/09 Ruiz Zambrano  [2011] ECR I-0000, paragraph 41), as described in Articles 17 EC to 21 EC, is a feature of European Union law at its current stage of development and justifies the recognition, for Union citizens alone, of guarantees which are considerably strengthened in respect of expulsion, such as those provided for in Article 28(3)(a) of Directive 2004/38.
81. It is, moreover, settled case-law that the public policy exception in the area of free movement of workers who are nationals of Member States of the European Union, as provided for by the Treaty and applicable by analogy under the EEC-Turkey Association, is a derogation from that fundamental freedom, which must be interpreted strictly, and that its scope cannot be determined unilaterally by the Member States (see, inter alia, Case C‑303/08 Bozkurt , paragraph 56 and the case-law cited).
82. Furthermore, measures on grounds of public policy or public security may be taken only following a case-by-case assessment by the competent national authorities showing that the personal conduct of the individual concerned constitutes at present a genuine and sufficiently serious threat to a fundamental interest of society.  In that assessment, those authorities are also required to observe both the principle of proportionality and the fundamental rights of the person concerned, in particular, the right to privacy and family life (see, to that effect, Case C‑303/08 Bozkurt , paragraphs 57 to 60 and the case-law cited).
83. Accordingly such measures cannot be ordered automatically on general preventive grounds following a criminal conviction or as a means of deterring other foreign nationals from committing offences (see Case C‑303/08 Bozkurt , paragraph 58 and the case-law cited). Although in that regard, the existence of several previous criminal convictions is, in itself, irrelevant for justifying an expulsion depriving a Turkish national of rights he derives directly from Decision No 1/80 (see Polat , paragraph 36), the same must hold all the more true for a justification relating to the duration of any prison terms to which the individual concerned was sentenced.
84. As regards the date to be used in determining whether the specific threat to public policy or security is present, it must also be borne in mind that national courts must take into consideration, in reviewing the lawfulness of the expulsion of a Turkish national, 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 the fundamental interest in question (see, inter alia, Case C‑467/02 Cetinkaya  [2004] ECR I‑10895, paragraph 47).