Fatma Pehlivan v Staatssecretaris van Justitie.
Date: 2011-06-16
39. In order to provide a useful response to the first question as defined in the two preceding paragraphs, it should be recalled that the first paragraph of Article 7 of Decision No 1/80 has direct effect, with the result that Turkish nationals to whom that provision applies have the right to rely on it directly before the courts of the Member States in order to obtain the disapplication of rules of national law which infringe that provision  (see, to that effect, inter alia, Case C-351/95 Kadiman  [1997] ECR I‑2133, paragraph 28, and Case C-303/08 Bozkurt  [2010] ECR I‑0000, paragraph 31).
40. As is apparent from the very wording of the first paragraph of Article 7 of Decision No 1/80, the acquisition of the rights provided for in that provision is made subject to two prior cumulative conditions, namely, first, that the person concerned must be a member of the family of a Turkish worker who is already duly registered as belonging to the labour force of the host Member State and, second, that he has been authorised by the competent authorities of that State to join that worker there ( Bozkurt , paragraph 26). As stated in paragraphs 21 to 23 of the present judgment, it is common ground that, in the present case, Ms Pehlivan satisfied those conditions.
41. Once those prior conditions are met, it remains to be established, for the purposes of the application of the first paragraph of Article 7 of Decision No 1/80, whether the Turkish resident concerned has been legally resident for a certain period on the territory of the host Member State (see, inter alia, Case C-373/03 Aydinli  [2005] ECR I‑6181, paragraph 29).
42. The periods of residence as set out in the two indents of the first paragraph of Article 7, if they are not to be rendered totally ineffective, require that a concomitant right of residence for the duration of those periods be acknowledged for the members of the family of a Turkish worker authorised to join him in the host Member State (see Kadiman , paragraph 29, and Bozkurt , paragraphs 31 and 36). The refusal to confer such a right would render meaningless the authorisation granted by the Member State concerned to a member of the family of a migrant Turkish worker to join that worker and would constitute the very negation of the opportunity thus provided to the person concerned to reside in the territory of the host Member State.
43. Consequently, the member of the family of a Turkish worker who, like Ms Pehlivan, satisfies the two prior conditions indicated in paragraph 40 of the present judgment and who has resided legally in the territory of the host Member State for more than three years, necessarily enjoys a right of residence in that State which is based directly on that provision.
44. With regard, more specifically, to the criterion of legal residence before expiry of the initial three-year period, set out in the first indent of the first paragraph of Article 7 of Decision No 1/80, it is settled case-law of the Court that the terms used in the various provisions of Decision No 1/80 are concepts of European Union law which must be defined uniformly at European Union level, in the light of the spirit and purpose of the provisions in question, and of their context, in order to ensure their consistent application in the Member States (see, inter alia, Case C‑98/96 Ertanir  [1997] ECR I‑5179, paragraph 59, and Case C-275/02 Ayaz  [2004] ECR I‑8765, paragraphs 39 and 40).
45. In that regard, in accordance with the general objective pursued by that decision, which is to improve, in the social field, the treatment accorded to Turkish workers and members of their families with a view to achieving gradually freedom of movement (see, inter alia, Case C‑329/97 Ergat  [2000] ECR I‑1487, paragraph 43), the system put in place by, in particular, the first paragraph of Article 7 of that decision is intended to create circumstances which will promote family reunification in the host Member State. First, that is to say, before the initial period of three years laid down in the first indent of that provision expires, that provision seeks to further the employment and residence of a Turkish worker who is already legally present on the territory of that State by means of the presence, with that worker, of members of his family. Thereafter, the second indent of that provision consolidates the position of the members of the Turkish migrant worker’s family by giving them the possibility of themselves gaining access to the labour force of that Member State, in order to establish a position which is independent of that of the worker and thus to deepen the family’s lasting integration in the host Member State ( Bozkurt , paragraphs 33 and 34 and the case-law cited).
46. The Court has concluded from that that the family member is, as a rule and unless he has good reason not to, required actually to reside with the migrant worker as long as he does not himself have the right of access to the labour market, that is to say, until the three-year period laid down in the first indent of the first paragraph of Article 7 of Decision No 1/80 has expired ( Bozkurt , paragraph 35). As the Court pointed out in paragraphs 42 and 44 of its judgment in Kadiman , the position would be different only if objective circumstances justified the failure of the family member concerned to live under the same roof as the Turkish migrant worker in the host Member State.
47. The Court has explained in that context that, in the light both of the essential purpose and of the spirit of the first paragraph of Article 7 of Decision No 1/80, the unity of the family, in pursuit of which the family member entered the territory of the host Member State, should be evidenced specifically by the continuous presence of that family member with the worker, such presence involving cohabitation of the persons concerned, until that family member acquires the right, after three years, to live independently of the parent who enabled him to integrate in the host Member State ( Ergat , point 36).
48. The Court has also interpreted the first indent of the first paragraph of Article 7 of Decision No 1/80 as not precluding the host Member State from subjecting that right of residence of the family member during the first three years to conditions of such a kind as to ensure that the presence of that family member in its territory is in conformity with the spirit and purpose of the first paragraph of Article 7 ( Kadiman , paragraph 33).
50. In that regard, it is clear from the case-law of the Court that, first, the first admission to the territory of a Member State of a member of the family of a Turkish worker already duly registered as belonging to the labour force of that State is, as a rule, a matter for that State’s national law, that competence being evident from the authorisation granted to the person concerned, by the competent national authorities, to join that worker ( Ayaz , paragraphs 34 and 35).
51. Second, once the initial three-year period provided for in the first indent of the first paragraph of Article 7 of Decision No 1/80 has expired, the Member State is no longer entitled to attach any conditions to the residence of a member of a Turkish worker’s family (see Ergat , paragraph 38, and Case C-467/02 Cetinkaya  [2004] ECR I‑10895, paragraph 30).
53. In particular, as is clear from the actual wording of paragraph 33 of the judgment in Kadiman , the host Member State may subject the residence of the member of the family of the Turkish worker only to conditions intended to guarantee full compliance with the objective pursued by the first paragraph of Article 7 of Decision No 1/80, by ensuring that the person concerned does not reside in its territory in disregard of the spirit and purpose of that provision, as stated in paragraph 45 of the present judgment.
56. By contrast, that Member State is not entitled to provide in that regard for rules which differ from those resulting from Decision No 1/80 or which impose conditions other than those provided for in that decision. According to the Court’s well-established case‑law, it follows both from the primacy of European Union law and from the direct effect of a provision such as the first paragraph of Article 7 of Decision No 1/80 that Member States are not permitted to modify unilaterally the scope of the system of gradually integrating Turkish nationals in the host Member State and do not, therefore, have the power to adopt measures which may undermine the legal status expressly conferred on those nationals by the law governing the EEC-Turkey Association (see, to that effect, Case C‑65/98 Eyüp  [2000] ECR I‑4747, paragraphs 40 and 41; Case C‑188/00 Kurz  [2002] ECR I‑10691, paragraphs 66 to 68; and Case C-14/09 Genc  [2010] ECR I-0000, paragraphs 36 to 38).
62. That interpretation is, moreover, consistent with the settled case-law of the Court according to which 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).
63. From this it follows that, in particular, that, as the Court has already held and contrary to the legislation at issue in the main proceedings, the fact that, at the time when the facts at issue occur, the person concerned has reached the age of majority, does not affect the rights which he has acquired on the basis of the first paragraph of Article 7 of Decision No 1/80 (see, to that effect, inter alia, Ergat , paragraphs 26 and 27, and Case C‑502/04 Torun  [2006] ECR I‑1563, paragraph 28 and case-law cited).
64. On the basis of all those considerations, it must be concluded that, in circumstances such as those at issue in the main proceedings, the marriage, entered into by the member of the family of a Turkish worker before expiry of the three-year period provided for under the first paragraph of Article 7 of Decision No 1/80, is irrelevant with regard to the retention of the right of residence enjoyed by the holder of that right, in so far as, during the whole of that period, that person actually lived under the same roof as that worker. The Member State concerned was therefore not justified in calling into question in the present case the right of residence which the applicant in the main proceedings derives from European Union law, and it is for the national courts to apply that law in its entirety and to protect the rights which it confers directly on individuals, setting aside any provision of the law of that State which may conflict with it (see Eyüp , paragraph 42, and Kurz , paragraph 69).
65. Lastly, it must be pointed out that the interpretation given in the preceding paragraph is not incompatible with the requirements of Article 59 of the Additional Protocol signed on 23 November 1970. On similar grounds to those set out by the Court in paragraphs 62 to 67 of its judgment in Case C-325/05 Derin [2007] ECR I-6495, in paragraph 21 of its judgment in Case C‑349/06 Polat [2007] ECR I-8167, and in paragraph 45 of its judgment in Bozkurt , the situation of a member of the family of a Turkish migrant worker cannot usefully be compared to that of a member of the family of a national of a Member State, having regard to the significant differences between their respective legal situations (see, to that effect, Case C‑462/08 Bekleyen  [2010] ECR I‑0000, paragraphs 37, 38 and 43).