Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords

1 . FREE MOVEMENT OF PERSONS - WORKERS - RIGHT OF RESIDENCE OF FAMILY - NO REQUIREMENT THAT THE FAMILY MUST LIVE UNDER THE SAME ROOF PERMANENTLY - INDEPENDENT RIGHT OF RESIDENCE UNDER ARTICLE 11 OF REGULATION NO 1612/68 - NONE

( COUNCIL REGULATION ( EEC ) NO 1612/68 , ARTS 10 AND 11 )

2 . FREE MOVEMENT OF PERSONS - WORKERS - RIGHT OF RESIDENCE OF FAMILY - SPOUSE - HUSBAND AND WIFE LIVING SEPARATELY

( COUNCIL REGULATION ( EEC ) NO 1612/68 , ART . 10 )

Summary

1 . THE RIGHT OF RESIDENCE PROVIDED FOR IN ARTICLE 10 OF REGULATION NO 1612/68 FOR THE MEMBERS OF A MIGRANT WORKER ' S FAMILY IS SUBJECT TO THE REQUIREMENT LAID DOWN IN ARTICLE 10 ( 3 ) THAT THE ACCOMMODATION WHICH THE WORKER HAS AVAILABLE MUST BE SUCH AS MAY BE CONSIDERED NORMAL FOR THE PURPOSE OF ACCOMMODATING HIS FAMILY . HOWEVER , IT IS NOT CONDITIONAL ON ANY REQUIREMENT THAT THE FAMILY MUST LIVE UNDER THE SAME ROOF PERMANENTLY .

ARTICLE 11 OF REGULATION NO 1612/68 CONFERS ON THE MEMBERS OF A MIGRANT WORKER ' S FAMILY ONLY A RIGHT TO EXERCISE ANY ACTIVITY AS EMPLOYED PERSONS THROUGHOUT THE TERRITORY OF THE HOST STATE . IT CANNOT THEREFORE CONSTITUTE THE LEGAL BASIS FOR A RIGHT OF RESIDENCE WITHOUT REFERENCE TO THE CONDITIONS LAID DOWN IN ARTICLE 10 .

2 . FOR THE PURPOSES OF ARTICLE 10 OF REGULATION NO 1612/68 , WHICH PROVIDES FOR THE RIGHT OF A MIGRANT WORKER ' S SPOUSE TO INSTALL HERSELF WITH HIM , THE MARITAL RELATIONSHIP CANNOT BE REGARDED AS DISSOLVED SO LONG AS IT HAS NOT BEEN TERMINATED BY THE COMPETENT AUTHORITY . IT IS NOT DISSOLVED MERELY BECAUSE THE SPOUSES LIVE SEPARATELY , EVEN WHERE THEY INTEND TO DIVORCE AT A LATER DATE .

Parties

IN CASE 267/83

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESVERWALTUNGSGERICHT ( FEDERAL ADMINISTRATIVE COURT ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

AISSATOU DIATTA , A SENEGALESE NATIONAL RESIDING IN WEST BERLIN ,

AND

LAND BERLIN , REPRESENTED BY THE POLIZEIPRASIDENT ( CHIEF COMMISSIONER OF POLICE ), BERLIN ,

Subject of the case

ON THE INTERPRETATION OF ARTICLES 10 AND 11 OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ,

Grounds

1 BY AN ORDER DATED 18 OCTOBER 1983 , WHICH WAS RECEIVED AT THE COURT ON 5 DECEMBER 1983 , THE FIRST SENATE OF THE BUNDESVERWALTUNGSGERICHT ( FEDERAL ADMINISTRATIVE COURT ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF ARTICLES 10 AND 11 OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ).

2 THE QUESTIONS AROSE IN A DISPUTE BETWEEN MRS DIATTA , A SENEGALESE NATIONAL , AND THE LAND BERLIN , REPRESENTED BY THE POLIZEIPRASIDENT ( CHIEF COMMISSIONER OF POLICE ).

3 MRS DIATTA MARRIED A FRENCH NATIONAL WHO RESIDES AND WORKS IN BERLIN . SHE HAS WORKED CONTINUOUSLY IN BERLIN SINCE FEBRUARY 1978 .

4 AFTER LIVING WITH HER HUSBAND FOR SOME TIME , SHE SEPARATED FROM HIM ON 29 AUGUST 1978 WITH THE INTENTION OF DIVORCING AND HAS LIVED SINCE IN SEPARATE ACCOMMODATION .

5 ON THE EXPIRY OF HER RESIDENCE PERMIT , MRS DIATTA REQUESTED AN EXTENSION . BY A DECISION OF 29 AUGUST 1980 , THE POLIZEIPRASIDENT REJECTED THAT REQUEST ON THE GROUNDS THAT MRS DIATTA WAS NO LONGER A MEMBER OF THE FAMILY OF A NATIONAL OF A MEMBER STATE OF THE EEC AND THAT SHE DID NOT LIVE WITH HER HUSBAND . THAT REFUSAL WAS UPHELD BY THE VERWALTUNGSGERICHT ( ADMINISTRATIVE COURT ) ON THE GROUND THAT THE SPOUSES DID NOT LIVE TOGETHER . ON THE OTHER HAND , THE VERWALTUNGSGERICHT TOOK THE VIEW THAT THE FAMILY RELATIONSHIP STILL EXISTED . MRS DIATTA APPEALED AGAINST THAT DECISION TO THE OBERVERWALTUNGSGERICHT ( HIGHER ADMINISTRATIVE COURT ) AND , FOLLOWING THE DISMISSAL OF THAT APPEAL , TO THE BUNDESVERWALTUNGSGERICHT .

6 THE BUNDESVERWALTUNGSGERICHT REFERRED TO THE COURT THE FOLLOWING QUESTIONS :

( 1 ) IS ARTICLE 10 ( 1 ) OF REGULATION ( EEC ) NO 1612/68 TO BE INTERPRETED AS MEANING THAT THE SPOUSE OF A WORKER WHO IS A NATIONAL OF A MEMBER STATE AND WHO IS EMPLOYED IN THE TERRITORY OF ANOTHER MEMBER STATE MAY BE SAID TO LIVE ' WITH THE WORKER ' IF SHE HAS IN FACT SEPARATED FROM HER SPOUSE PERMANENTLY BUT NONE THE LESS LIVES IN HER OWN ACCOMMODATION IN THE SAME PLACE AS THE WORKER?

( 2)DOES ARTICLE 11 OF REGULATION ( EEC ) NO 1612/68 ESTABLISH FOR A SPOUSE WHO , THOUGH NOT A NATIONAL OF A MEMBER STATE , IS MARRIED TO A NATIONAL OF A MEMBER STATE WHO WORKS AND LIVES IN THE TERRITORY OF ANOTHER MEMBER STATE A RIGHT OF RESIDENCE WHICH DOES NOT DEPEND ON THE CONDITIONS SET OUT IN ARTICLE 10 OF THAT REGULATION , IF THE SPOUSE WISHES TO PURSUE AN ACTIVITY AS AN EMPLOYED PERSON IN THE TERRITORY OF THAT MEMBER STATE?

7 THE TWO QUESTIONS REFERRED TO THE COURT BY THE BUNDESVERWALTUNGSGERICHT ARE INTENDED TO ESTABLISH WHETHER THE MEMBERS OF A MIGRANT WORKER ' S FAMILY , AS DEFINED IN ARTICLE 10 OF REGULATION NO 1612/68 , ARE NECESSARILY REQUIRED TO LIVE WITH HIM PERMANENTLY IN ORDER TO QUALIFY FOR A RIGHT OF RESIDENCE UNDER THAT PROVISION , AND WHETHER ARTICLE 11 OF THAT REGULATION ESTABLISHES A RIGHT OF RESIDENCE INDEPENDENT OF THAT PROVIDED FOR IN ARTICLE 10 .

8 ARTICLE 10 OF REGULATION NO 1612/68 PROVIDES THAT :

' ( 1 ) THE FOLLOWING SHALL , IRRESPECTIVE OF THEIR NATIONALITY , HAVE THE RIGHT TO INSTALL THEMSELVES WITH A WORKER WHO IS A NATIONAL OF ONE MEMBER STATE AND WHO IS EMPLOYED IN THE TERRITORY OF ANOTHER MEMBER STATE :

( A ) HIS SPOUSE AND THEIR DESCENDANTS WHO ARE UNDER THE AGE OF 21 YEARS OR ARE DEPENDANTS ;

( B)DEPENDENT RELATIVES IN THE ASCENDING LINE OF THE WORKER AND HIS SPOUSE .

( 2)MEMBER STATES SHALL FACILITATE THE ADMISSION OF ANY MEMBER OF THE FAMILY NOT COMING WITHIN THE PROVISIONS OF PARAGRAPH 1 IF DEPENDENT ON THE WORKER R