Conclusions04/05/2012 13:21:14.138C04512011IIENL_Cnc_Mess_Fr.xmlTRA-DT-FR-CONCL-C-0451-2011-201203993-01_00.xmlCNCRPLitige0DEFÉDITION PROVISOIRE DU 30/04/20121Texte pour publication00-0Document20C:\TEMP\canevas\Litige.xml5/22/20120CNC§92;pos=36243:lng=EN§CONVERSION§rv@TRA-DOC-EN-CONCL-C-0451-2011-201203993-06_90Doc2XML SUIVI2 TRAD Prod 2003C:\Program Files\Doc2XML\XML\Serveur_SUIVI2_TRAD.xmlO:\Flux\Suivi_II\conversion\doc2xml_trad\In\UNCLASSIFIEDNormalIRECFalseFalse()Doc2XML_2003_PC_TRAD SV2_PUBC:\Program Files\Doc2XML\XML\PR_Doc2XML_2003_SV2_PUB.xmlP:\GTiWebTools\Automates\Suivi_II\conversion\doc2xml_pub\In\OPINION OF ADVOCATE GENERAL

BOT

delivered on 7 June 2012  (2)

Case C‑451/11

Natthaya Dülger

v

Wetteraukreis

(Reference for a preliminary ruling from the Verwaltungsgericht Giessen (Germany))

(EEC-Turkey Association Agreement — Interpretation of Association Council Decision No 1/80 — Right of residence of members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State — Thai national who has lived with the Turkish worker for at least five years — Rights acquired before delivery of the decree of divorce from the Turkish worker)

1.       This case provides the Court with an opportunity to clarify the scope of Article 7 of Decision No 1/80 of the Association Council  (3) of 19 September 1980 on the development of the Association.  (4) That article provides that a member of the family of a Turkish worker who has been authorised to join that worker in the territory of the host Member State is to be entitled to respond to any offer of employment in that territory after he has been resident there for at least three years and is to enjoy free access to any paid employment of his choice provided he has been legally resident there for at least five years.

2.       In particular, the Court must give a ruling on whether a third-country national who does not hold Turkish nationality may be considered to be a member of the family of a Turkish worker within the meaning of that provision and thus rely on the rights which that provision confers on him.

3.       In this Opinion, I shall set out the reasons why I consider that the second indent of the first paragraph of Article 7 of Decision No 1/80 is to be interpreted as meaning that a third-country national who does not hold Turkish nationality and who has lived for a period of at least five years with his spouse, a Turkish worker duly registered as belonging to the labour force, may be classified as ‘a member of the family’ of a Turkish worker.

4.       I shall then propose that the Court give a ruling to the effect that such a national, who, as a member of the family of a Turkish worker, enjoys the rights which he derives from that provision, does not cease to qualify for those rights by reason of having been divorced from that Turkish worker pursuant to a decree delivered after those rights were acquired.

I –  Legal context

A – EU law

1.     The Association Agreement

5.       With the aim of regulating freedom of movement for Turkish workers in the territory of the Community, an Association Agreement was concluded on 12 September 1963 between the Community and the Republic of Turkey. The aim of that Agreement is ‘to promote the continuous and balanced strengthening of trade and economic relations between the parties, while taking full account of the need to ensure the accelerated development of the Turkish economy and to improve the level of employment and the living conditions of the Turkish people’.  (5)

6.       The freedom of movement for Turkish workers sought by that Agreement must be secured in accordance with the procedures decided upon by the Association Council, which has the task of ensuring the implementation and the progressive development of the Association.  (6)

2.     The Additional Protocol to the Association Agreement

7.       The Additional Protocol to the Association Agreement  (7) lays down the conditions, procedures and timetable for the transitional phase of the Association. Title II contains several articles on the movement of persons and services.

8.       Thus, Article 59 provides that ‘the treatment of Turkey in the areas governed by this Protocol may not be more favourable than that which the Member States accord each other under the Treaty establishing the European Community’.

3.     Decision No 1/80

9.       The Association Council thus adopted Decision No 1/80, which is intended, inter alia, to improve the legal position of workers and the members of their families in relation to the arrangements introduced by Decision No 2/76 of the Association Council of 20 December 1976. The latter decision granted Turkish workers an increasing right of access to employment in the host Member State and also gave the children of such workers a right to education in that State.

10.     The provisions applicable to the rights of the members of the family of a Turkish worker are set out in Article 7 of Decision No 1/80, which reads as follows:

‘The members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State, who have been authorised to join him:

shall be entitled — subject to the priority to be given to workers of Member States of the Community — to respond to any offer of employment after they have been legally resident for at least three years in that Member State;

shall enjoy free access to any paid employment of their choice provided they have been legally resident there for at least five years.

Children of Turkish workers who have completed a course of vocational training in the host country may respond to any offer of employment there, irrespective of the length of time they have been resident in that Member State, provided one of their parents has been legally employed in the Member State concerned for at least three years.’

B – National law

11.     Article 4(5) of the Law on the Residence, Employment and Integration of Foreign Nationals in Federal Territory (Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet) of 30 July 2004  (8) provides that a foreign national who possesses a right of residence in accordance with the Association Agreement is required to prove the existence of that right by furnishing evidence of his possession of a residence permit, if he does not possess a settlement permit or a permit for permanent residence in the European Union. The residence permit is issued on request.

II –  Facts of the dispute in the main proceedings and the question referred for a preliminary ruling

12.     The claimant in the main proceedings, Mrs Dülger, is a Thai national born in Buri Ram (Thailand) on 26 July 1973. She entered Germany territory on a tourist visa on 30 June 2002.

13.     On 12 September 2002, she married, in Denmark, Mr Dülger, a Turkish national born in Turkey on 1 December 1960. Since 1998, he has held a permit for unlimited residence in Germany. He worked in Germany, for various employers, from 1 October 2002 to 30 June 2004, from 1 August 2004 to 8 June 2005, from 1 March 2006 to 15 March 2008, and from 1 June 2008 to 31 December 2009. It is common ground in this regard that, in the relevant period, Mr Dülger was a Turkish national duly registered as belonging to the labour force within the meaning of Article 7 of Decision No 1/80.  (9)

14.     On 18 September 2002, the claimant in the main proceedings applied to the German authorities for a residence permit, stating in this regard that she was married and had two children born in Thailand in 1996 and 1998. She was granted a residence permit of limited duration so that she and her husband could live together as a married couple. Since then, that permit has regularly been extended, most recently from 10 September 2008 to 26 June 2011. Since 21 June 2011, the claimant has been in possession of a certificate creating a legal fiction as to the continuing existence of a right of residence.

15.     The Verwaltungsgericht Giessen (Administrative Court, Giessen) (Germany) states that the claimant in the main proceedings lived with Mr Dülger without interruption from their marriage in September 2002 to their separation in June 2009.

16.     On 30 June 2009, the claimant in the main proceedings separated from her spouse and moved into a women’s hostel in Friedberg (Germany) with her two daughters, who had arrived in Germany territory on 1 July 2006. Since then, she has been in receipt of social security benefits for herself and her daughters. The divorce from her husband became final on 3 February 2011.

17.     By letter of 9 September 2009, the Wetteraukreis (Wetterau district) immigration authority drew the attention of the claimant in the main proceedings to the fact that she had acquired an independent right of residence after separating from her husband, but that that right was exempt for only one year from the obligation incumbent upon her to prove that she was able to support herself and her children. If she were to continue to be reliant on social security after 4 June 2010, her right of residence, and that of her children, would have to be limited a posteriori and she would have to leave German territory. Only if she and her children were able to support themselves by that date would she continue to qualify for her right of residence.

18.     On 18 September 2009, the claimant in the main proceedings applied to the Wetteraukreis for a residence permit on the basis of Paragraph 4(5) of the Law on the Residence, Employment and Integration of Foreign Nationals in Federal Territory, on the ground that she had acquired rights under Article 7 of Decision No 1/80. In her view, she is a member of the family of a Turkish worker duly registered as belonging to the labour force of a Member State with whom she was legally resident for at least three years; the question whether the member of the family held Turkish nationality is irrelevant.

19.     By decision of 15 March 2010, the Wetteraukreis refused to grant the application made by the claimant in the main proceedings. It considers that the claimant has not acquired any rights under that provision, since only the Turkish members of a Turkish worker’s family are able to rely on that provision. Furthermore, her Turkish spouse has not furnished proof that he was duly registered as a member of the labour force, since he was employed only for short periods during the time that they lived together.

20.     The claimant in the main proceedings brought an appeal against that decision before the referring court. That court is uncertain how to interpret Article 7 of Decision No 1/80. The Verwaltungsgericht Giessen therefore decided to stay the proceedings and refer the following question to the Court for a preliminary ruling:

‘May a Thai national, who was married to a Turkish worker duly registered as belonging to the labour force of a Member State and who, after receiving authorisation to join him, lived with him without interruption for more than three years, rely on the rights arising from the first indent of the first paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council, with the consequence that she has a right of residence because of the direct effect of that provision?’

III –  My analysis

21.     The first point to make is that it is established that the claimant lived with the Turkish worker without interruption from their marriage in September 2002 until their separation on 3 June 2009.  (10) The claimant’s situation would therefore be such as to fall within the scope not of the first indent of the first paragraph of Decision No 1/80 but of the second indent of the first paragraph of that decision, since she has been legally resident in the territory of the host Member State for at least five years.

22.     Consequently, in order to provide the referring court with a useful answer, consideration must be given to whether the second indent of the first paragraph of Decision No 1/80 is to be interpreted as meaning that a third-country national who does not hold Turkish nationality and who has lived for a period of at least five years with his spouse, a Turkish worker duly registered as belonging to the labour force, can be classified as a ‘member of the family’ of a Turkish worker. If the answer to that question is in the affirmative, does that national lose the rights which he derives from that provision by reason of having been divorced from that Turkish worker pursuant to a decree delivered after those rights were acquired?

A – ‘Member of the family’

23.     The Court has already been called upon to interpret the term ‘member of the family’ of a Turkish worker within the meaning of the first paragraph of Article 7 of Decision No 1/80. It has held, inter alia, that the child of a Turkish worker retains that status even after reaching the age of majority and even if he lives independently of his parents in the host Member State.  (11) Similarly, the Court has taken the view that classification as a ‘member of the family’ is not limited to the worker’s blood relations. A stepson who is under the age of 21 or is a dependant of a Turkish worker duly registered as belonging to the labour force of a Member State is a member of the family of that worker.  (12)

24.     This is, however, the first time that the Court has been called upon to answer the question as to whether a third-country national who does not hold Turkish nationality may be classified as a ‘member of the family’ of a Turkish worker, within the meaning of the first paragraph of Article 7(1) of Decision No 1/80, and may thus qualify for the rights which that provision confers. In this regard, the fact that, in several of its judgments in matters relating to that provision, the Court has referred to the rights of Turkish members of the family of a Turkish worker,  (13) as the referring court points out, does not seem to me to be relevant to the resolution of the dispute in the main proceedings. After all, in those cases, the member of the Turkish worker’s family did hold Turkish nationality, unlike in the situation at issue here.

25.     It is clear simply from reading the first paragraph of Article 7 of Decision No 1/80 that it makes eligibility for the rights for which it provides subject to four conditions, namely that the person concerned must be a member of the family of a Turkish worker, that that worker must be duly registered as belonging to the labour force, that the member of the family must have been authorised to join that worker, and, finally, that he must have been living in the host Member State for at least three years or at least five years. Consequently, there is nothing in the wording of that provision to indicate that the status of member of the family is subject to a nationality condition. The same is not true of the worker through whom the member of the family obtains those rights, who must indisputably hold Turkish nationality.

26.     However, since the purpose of the Association Agreement is to regulate the free movement of Turkish workers in the territory of the European Union, there is some doubt as to whether a third-country national who does not hold Turkish nationality can be classified as a ‘member of the family’ of a Turkish worker and thus rely on the rights provided for in the first paragraph of Article 7 of Decision No 1/80.

27.     As the Court held in Ayaz, the term ‘member of the family’ as it is used in that provision must be construed in a uniform manner at the level of the European Union, in order to ensure consistent application in the Member States.  (14) Accordingly, its scope must be determined in terms of the objective it pursues and the context in which it is placed.  (15)

28.     In this regard, it should be pointed out that the first paragraph of Article 7 of Decision No 1/80 pursues a dual objective. First, before the initial period of three years expires, that provision seeks to enable family members to be with a migrant worker, with a view to thus furthering, by means of family reunification, the employment and residence of the Turkish worker who is already legally integrated in the host Member State.  (16)

29.     Thereafter, the same provision seeks to deepen the lasting integration of the Turkish migrant worker’s family into the host Member State by granting to the family member concerned, after three years of legal residence, the possibility of himself gaining access to the labour force. The fundamental objective thus pursued is that of consolidating the cohesion of the family, the essential component of which, the couple, is already legally integrated in the host Member State.  (17) By giving the spouse the means to earn his own living in the State in question, that provision consolidates the family’s potential economic position, which is an indisputable aspect of integration.

30.     The very operation of that mechanism, which is designed to assist the integration of the Turkish worker, means that, by the end of the prescribed period, the spouse acquires an independence born of the very nature of the system established in the specific texts.  (18)

31.     In my opinion, it is clear from that case-law that, while it is true that the first paragraph of Article 7 of Decision No 1/80 applies to the member of the Turkish worker’s family, the fact remains that that provision was adopted with a view to preserving the family unit so that the Turkish worker can be properly integrated in the host Member State. After all, the parties to the Association Agreement took the view that allowing that worker to have the members of his family with him was essential for the purpose of providing him with the best possible working conditions in that State. In this way, therefore, that provision is particularly important from a humanitarian point of view.

32.     Consequently, it makes little difference, in my view, whether the member of the family authorised to join the Turkish worker is a Turkish national or not. A family is defined not by the fact that its members possess the same nationality, but by the close links between two or more persons, whether these are legal ties created by marriage, for example, as in the main proceedings, or blood relationships.

33.     I do not see why a Turkish worker should be entitled to maintain his family links where his spouse has the same nationality as he does, but should have to be prevented from having his spouse with him where the nationality of that spouse is anything other than Turkish. Ultimately, this would be tantamount to taking the view that, as far as his integration in the host Member State is concerned, it is more essential for a Turkish worker to have a spouse of the same nationality living with him than a spouse who does not hold Turkish nationality. It would also mean that, in a like-for-like situation, a spouse who does not hold Turkish nationality would be treated less favourably than a spouse of Turkish nationality. This would constitute unacceptable discrimination.

34.     Apart from being unjustifiable, such an analysis would seriously undermine the very purpose of the first paragraph of Article 7 of Decision No 1/80 as well as the right of a Turkish worker to respect for his private and family life, as laid down in Article 7 of the Charter of Fundamental Rights of the European Union. Article 51(1) of the Charter states that the provisions of that Charter apply when the Member States are implementing EU law. As the Court held in paragraph 23 of Kahveci and Inan, Article 7 of Decision No 1/80 forms an integral part of EU law and the Member States are thus bound by obligations arising under that provision in precisely the same way as they are under a duty to observe rights established by EU legislation.

35.     Contrary to what the German and Italian Governments submit, I do not consider that my analysis is such as to extend the scope of Decision No 1/80.

36.     As I stated earlier, the Turkish worker remains the main beneficiary of the first paragraph of Article 7 of Decision No 1/80, since that provision seeks to safeguard the family unit so that that worker can be properly integrated in the host Member State. The rights which that provision confers on the members of the family of a Turkish worker are derived rights, which they acquire solely in their capacity as members of the family. The Turkish worker thus remains the critical component without which the members of his family cannot acquire those rights.  (19)

37.     Furthermore, I would point out that the first paragraph of Article 7 of Decision No 1/80 provides that the members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State, who have been authorised to join him are to be entitled to the rights in question.  (20) It therefore continues to be left to the discretion of the Member States whether or not to allow family reunification.  (21) Not until they have expressly authorised such family reunification are they required to respect the rights guaranteed by that provision.

38.     What is more, my analysis is borne out by the fact that, in accordance with settled case-law, the principles enshrined in Articles 45 TFEU, 46 TFEU and 47 TFEU must, as far as possible, be transposed to Turkish nationals enjoying the rights recognised by Decision No 1/80.  (22)

39.     Thus, the Court has repeatedly held that the term ‘member of the family’ of a Turkish worker within the meaning of the first paragraph of Article 7 of that decision is to be interpreted by reference to the interpretation of the same term used in Article 10(1) of Regulation (EEC) No 1612/68  (23) in relation to workers who are nationals of a Member State.  (24) As the European Commission points out, the latter provision is directed in particular at the spouses of workers who are nationals of a Member State, irrespective of their nationality.

40.     Article 10(1) of Regulation No 1612/68 was repealed by Directive 2004/38/EC,  (25) Article 38(3) of which provides that references made to the repealed provisions and directives are to be construed as being made to Directive 2004/38.

41.     In this regard, recital 5 in the preamble to that directive makes it clear that the right of all European Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, also be granted to their family members, irrespective of nationality. Thus, Article 2(2) of that directive, which defines the term ‘family member’, does not lay down any conditions with respect to the nationality of members of the family of a citizen of the European Union. Similarly, the provisions of Directive 2004/38 granting rights to members of the family of a citizen of the European Union also apply to those who are not nationals of a Member State.  (26)

42.     The German Government, however, has misgivings about the idea of relying, now, on the provisions of Directive 2004/38 and on the interpretation it gives of the term ‘family member’ when it comes to determining the scope of the term ‘member of the family’ as it is used in the first paragraph of Article 7 of Decision No 1/80. Its view, in substance, is that, since the judgment in Ziebell in 2011,  (27) it is no longer possible to interpret the term ‘member of the family’ within the meaning of that provision by reference to the interpretation of the term ‘family member’ used in Directive 2004/38, since there are substantial differences between the rules relating to the Association Agreement, which pursue a purely economic objective, and the latter provisions, which seek to make it easier to exercise the fundamental and individual right to move and reside freely in the territory of the Member States that is directly conferred on citizens of the European Union by the TFEU.  (28)

43.     I do not share those misgivings.

44.     After all, in the case which gave rise to that judgment, the claimant in the main proceedings was relying on the strengthened scheme of protection against expulsion introduced by Article 28(3)(a) of Directive 2004/38 for the benefit of citizens of the European Union. He contended that, in accordance with settled case-law, that article should be applied by analogy to a situation falling within the scope of Article 14(1) of Decision No 1/80.

45.     The Court therefore held that, in deciding whether a provision of EU law lends itself to application by analogy under the EEC-Turkey Association, a comparison must be made between the objective pursued by the Association Agreement and the context of which it forms a part, on the one hand, and those of the EU law instrument in question, on the other.  (29) The Court thus points out that, unlike EU law as it results from Directive 2004/38, the Association Agreement pursues solely a purely economic objective and is restricted to the gradual achievement of the free movement of workers.  (30) It goes on to explain that the very concept of citizenship 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 the directive. It concludes from this that the scheme providing for protection against expulsion under that provision cannot be applied mutatis mutandis to situations falling within the scope of Article 14(1) of Decision No 1/80.  (31)

46.     It is therefore because the strengthened protection scheme is directed not at workers who are third-country nationals but at citizens of the European Union, for whom the EU legislature has provided guarantees which are all the more extensive because such citizens are highly integrated in the host Member State, that the application of that scheme by analogy is inconceivable.

47.     However, the present case is not concerned with the application to Turkish workers of the same scheme and the same guarantees as are enjoyed by citizens of the European Union; it has to do with determining the scope of the term ‘member of the family’ in the context of family reunification. Recitals 5 and 6 in the preamble to Directive 2004/38 make it clear that, in granting members of the family of a citizen of the Union the right to move and reside in the territory of the Member State, that directive seeks to make it easier to exercise that right by also allowing such a citizen to maintain his family links, irrespective of the nationality of the members of the family.

48.     In my view, therefore, the term ‘member of the family’ must have the same scope, since it is used in provisions which pursue the same objective in both texts. It is for that very reason that the Court has repeatedly held that the principles enshrined in Articles 45 TFEU to 47 TFEU must be transposed, as far as possible, to Turkish nationals who enjoy rights recognised by the Association Agreement.  (32)

49.     I do not see how it is possible to take the view that, in the context of maintaining family links, the concept of family may have a different meaning depending on whether the person concerned is a citizen of the European Union or a Turkish worker. In both cases, the idea is to afford greater social stability to the person concerned by allowing him to have the members of his family with him and to live a normal family life. In this regard, the presence of the spouse, whatever his/her nationality, is essential for the purposes of achieving those objectives.

50.     That solution seems to me to be particularly appropriate given that it is also the solution required in relation to Decision No 3/80 of the Association Council of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families,  (33) which is intended to coordinate the social security schemes of the Member States so as to entitle Turkish workers who are or have been employed in one of more Member States of the Community, as well as members of their families and their survivors, to benefits in the traditional branches of social security.

51.     After all, Article 1(a) of Decision No 3/80 provides, inter alia, that, for the purposes of applying that decision, the term ‘member of the family’ has the meaning assigned to it in Article 1 of Regulation (EEC) No 1408/71.  (34) The latter provision states in particular that the term ‘member of the family’ means any person defined or recognised as a member of the family.

52.     Furthermore, it is clear from the Court’s case-law that Article 2(1) of Regulation No 1408/71, which defines the persons covered by that regulation, refers to two clearly distinct categories of persons: workers, on the one hand, and members of their families and their survivors, on the other. In order to fall within the scope of that regulation, the former must be nationals of a Member State, or stateless persons or refugees residing within the territory of one of the Member States. There is on the other hand no nationality requirement for application of the regulation to the family members  (35) or survivors of workers who are nationals of the European Union.  (36) Similarly, the Court has held that the definition of the persons to whom Decision No 3/80 applies contained in Article 2 of that decision is inspired by the same definition set out Article 2(1) of Regulation No 1408/71.  (37)

53.     Consequently, if, as I consider, the term ‘member of the family’ within the meaning of Article 1(a) of Decision No 3/80 is to be interpreted as not carrying any nationality condition, the same term contained in the first paragraph of Article 7 of Decision No 1/80 must be interpreted in the same way.

54.     The German Government, on the other hand, considers, in substance, that the consequence of that analysis would be that members of the family of a Turkish national are treated more favourably than members of the family of a citizen of the European Union, in breach of Article 59 of the Additional Protocol to the Association Agreement. In particular, it explains that, under Directive 2004/38, until such time as he acquires a permanent right of residence in the territory of the host Member State after five years of legal residence, a national who is divorced from a citizen of the European Union and originates from a third country may retain his right of residence only on condition that he has sufficient resources. Conversely, the right that a member of the family of a Turkish worker derives from the first indent of the first paragraph of Article 7 of Decision No 1/80 is acquired after a period of only three years of legal residence in the host Member State and its maintenance is not subject to any conditions. Consequently, the German Government submits, if that provision were interpreted as also being applicable to a member of the family of a third-country national who does not hold Turkish nationality, the scope of that more favourable treatment would be even more extensive than it is already.

55.     In this regard, it need only be pointed out that the Court has held that 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.  (38)

56.     In particular, it should be noted that, pursuant to Article 5(2) of Directive 2004/38, members of the family of a citizen of the European Union who are third-country nationals have a right to enter the territory of Member States which is subject only to the condition that they hold an entry visa or valid residence card, the Member States being required to grant them every facility to obtain those visas, which are to be issued free of charge as soon as possible and on the basis of an accelerated procedure. The first paragraph of Article 7 of Decision No 1/80, on the other hand, expressly makes family reunification subject to authorisation to join the Turkish migrant worker which has been granted in accordance with the requirements of the legislation of the host Member State.

57.     In addition, the Court has repeatedly held that, ‘unlike workers from the Member States, Turkish nationals are not entitled to freedom of movement within the [European Union] but can rely only on certain rights in the territory of the host Member State alone’.  (39)

58.     Moreover, the case-law of the Court relating to the conditions under which rights derived from Article 7 of Decision No 1/80 can be restricted lays down, in addition to the exception based on public policy, public security and public health, which is applicable in the same way to Turkish nationals and to nationals of Member States, a second ground of loss of those rights which is applicable only to Turkish migrants, namely if they leave the territory of the host Member State for a significant length of time without legitimate reason. In such a case, the authorities of the Member State concerned are entitled to require that, should the person concerned subsequently wish to resettle in that State, he must make a fresh application either for authorisation to join the Turkish worker if he is still dependent on that worker, or to be admitted with a view to being employed there on the basis of Article 6 of that decision.  (40)

59.     Consequently, in the light of all the foregoing considerations, I take the view that the second indent of the first paragraph of Article 7 of Decision No 1/80 is to be interpreted as meaning that a third-country national who does not hold Turkish nationality and who has lived for a period of at least five years with his spouse, a Turkish worker duly registered as belonging to the labour force, may be classified as a ‘member of the family’ of a Turkish worker.

B – Maintenance of rights acquired under the second indent of the first paragraph of Article 7 of Decision No 1/80 before the marriage was dissolved

60.     We must now consider whether a member of the family of a Turkish worker loses the rights which he derives from the second indent of the first paragraph of Article 7 of Decision No 1/80 by reason of having been divorced from that worker pursuant to a decree delivered after those rights were acquired.

61.     It is after all clear from the facts of the case in the main proceedings that the claimant separated from her husband on 30 June 2009 and that the divorce became final on 3 February 2011. Furthermore, the claimant in the main proceedings lived with her husband without interruption from their marriage in September 2002 until they separated in June 2009.

62.     By the date on which the divorce became final, the claimant had lived with her husband for at least five years and had therefore acquired the right of access to the labour market under the second indent of the first paragraph of Article 7 of Decision No 1/80.

63.     In this regard, the Court has held that, although 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 — in other words, until the three-year period has expired — by contrast that no longer applies where the person concerned has legally acquired that right pursuant to the first indent of the first paragraph of Article 7 of Decision No 1/80, and that must a fortiori be the case when, after five years, he has an unconditional right to employment.  (41)

64.     Once the conditions set out in the first paragraph of Article 7 of Decision No 1/80 are satisfied, that provision confers on the family member of a Turkish worker a right of his own of access to the labour market in the host Member State and, concomitantly, the right to continue to reside in that State.  (42)

65.     Rights such as those legally acquired on the basis of the first paragraph of Article 7 of Decision No 1/80 therefore exist regardless of the continuing existence of the conditions which were necessary to create those rights, with the result that the family member who already has rights pursuant to that decision is in a position to consolidate gradually his position in the host Member State and to become permanently integrated in that State by leading a life independent of that of the person through whom he secured those rights.  (43)

66.     As the Court made clear in paragraph 41 of the judgment in Bozkurt, that interpretation is merely the expression of the more general principle of respect for acquired rights, set out in the Court’s case-law. In other words, once a member of the family has legitimately acquired rights under a provision of Decision No 1/80, those rights are no longer dependent on the continuing existence of the circumstances which gave rise to them, as no condition of that nature is laid down by that decision.  (44)

67.     I therefore take the view that the second indent of the first paragraph of Article 7 of Decision No 1/80 is to be interpreted as meaning that a third-country national who does not hold Turkish nationality and who, as a member of the family of a Turkish worker, enjoys the rights which he derives from that provision, does not cease to qualify for those rights by reason of having been divorced from that Turkish worker pursuant to a decree delivered after those rights were acquired.

IV –  Conclusion

68.     In the light of all the foregoing considerations, I propose that the Court should give the following reply to the Verwaltungsgericht Giessen:

The second indent of the first paragraph of Article 7 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey, of the one part, and by the Member States of the EEC and the Community, of the other part, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, must be interpreted as meaning that:

a third-country national who does not hold Turkish nationality and who has lived for a period of at least five years with his spouse, a Turkish worker duly registered as belonging to the labour market, may be classified as a ‘member of the family’ of a Turkish worker;

a third-country national who does not hold Turkish nationality and who, as a member of the family of a Turkish worker, enjoys the rights which he derives from the second indent of the first paragraph of Article 7 of Decision No 1/80, does not cease to qualify for those rights by reason of having been divorced from that Turkish worker pursuant to a decree delivered after those rights were acquired.



2
Original language: French.


3
The Association Council was set up by the Agreement establishing an association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey, of the one part, and by the Member States of the EEC and the Community, of the other part. That agreement was concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113, p. 1) (‘The Association Agreement’).


4
Decision No 1/80 can be found in EEC-Turkey Association Agreement and Protocols and other Basic Texts, Office for Official Publications of the European Communities, Brussels, 1992.


5
See Article 2(1) of the Association Agreement.


6
See Article 6 of the Association Agreement.


7
That Protocol was signed at 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 1972 L 293, p. 1).


8
BGBl. 2004 I, p. 1950, in the version published on 25 February 2008 (BGBl. 2008 I, p. 162).


9
See, inter alia, paragraph 5 of the order for reference.


10
See paragraph 5(c) of the order for reference.


11
See, inter alia, Case C‑329/97 Ergat [2000] ECR I‑1487, paragraphs 26 and 27, and Case C‑349/06 Polat [2007] ECR I‑8167, paragraph 21.


12
See Case C‑275/02 Ayaz [2002] ECR I‑8765, paragraph 34.


13
See, inter alia, Case C‑65/98 Eyüp [2000] ECR I‑4747, Case C‑325/05 Derin [2007] ECR I‑6495 and Case C‑303/08 Bozkurt [2010] ECR I-13445.


14
See paragraph 39 of that judgment.


15
See paragraph 40 of that judgment.


16
See Joined Cases C‑7/10 and C‑9/10 Kahcevi [2012] ECR, paragraph 32 and case-law cited.


17
See to this effect Kahveci and Inan, cited above, paragraph 33 and case-law cited.


18
Idem.


19
See to that effect Bozkurt, cited above, paragraphs 36 and 37.


20
My emphasis.


21
See to that effect Case C‑467/02 Cetinkaya [2004] ECR I‑10895, paragraph 22.


22
See Ayaz, cited above, paragraph 44 and case-law cited.


23
Regulation of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968(II), p. 475).


24
See Ayaz, cited above (paragraph 45).


25
Directive of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, OJ 2005 L 197, p. 34, and OJ 2007 L 204, p. 28.


26
See, inter alia, Articles 6(2), 7(2) and 12(2) and (3) of that directive, concerning the right of residence, and Article 16(2) of that directive, concerning the permanent right of residence.


27
Case C‑371/08 [2011] ECR I-12735.


28
See the observations of the German Government (paragraphs 70 to 72).


29
See Ziebell, cited above (paragraph 62).


30
Ibidem (paragraph 72).


31
Ibidem (paragraph 74).


32
Ibidem (paragraphs 66 and 68).


33
OJ 1983 C 110, p. 60


34
Regulation of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416).


35
My emphasis.


36
See Case C‑308/93 Cabanis-Issarte [1996] ECR I‑2097, paragraph 21.


37
See Case C‑262/96 Sürül [1999] ECR I‑2685, paragraph 84.


38
See Bozkurt, cited above (paragraph 45 and case-law cited).


39
See Derin, cited above (paragraph 66 and case-law cited).


40
Ibidem (paragraph 67).


41
.Bozkurt, cited above (paragraph 35).


42
Ibidem (paragraph 36).


43
Ibidem (paragraph 40 and case-law cited).


44
See also to this effect Case C‑187/10 Unal [2011] ECR I-9045, paragraph 50.