Judgment of the Court (Second Chamber) of 30 September 2004.Engin Ayaz v Land Baden

Arrêt de la Cour

Case C-275/02

Engin Ayaz

v

Land Baden-Württemberg

(Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart)

(EEC-Turkey Association – Freedom of movement for workers – First paragraph of Article 7 of Decision No 1/80 of the Association Council – Personal scope – Concept of ‘member of the family’ of a Turkish worker duly registered as belonging to the labour force of a Member State – Stepson of such a worker)

Summary of the Judgment

International agreements – EEC-Turkey Association Agreement – Association Council established by the EEC-Turkey Association Agreement – Decision on the freedom of movement of workers – Family unity – Members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State – Concept – Stepson under 21 years of age or dependant – Covered

(Decision No 1/80 of the EEC-Turkey Association Council, Art. 7, first para.)

The first paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council is to be interpreted as meaning that a stepson who is under the age of 21 years 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, for the purposes of that provision, and enjoys the rights conferred on him by that decision, provided that he has been duly authorised to join that worker in the host Member State.

(see para. 48, operative part)

JUDGMENT OF THE COURT (Second Chamber)
30 September 2004(1)

(EEC-Turkey Association – Freedom of movement for workers – First paragraph of Article 7 of Decision No 1/80 of the Association Council – Personal scope – Concept of ‘member of the family’ of a Turkish worker duly registered as belonging to the labour force of a Member State – Stepson of such a worker)

In Case C-275/02,REFERENCE for a preliminary ruling under Article 234 ECfrom the Verwaltungsgericht Stuttgart (Germany), made by decision of 11 July 2002, received at the Court on 26 July 2002, in the proceedings

Engin Ayaz

v

Land Baden-Württemberg,

THE COURT (Second Chamber),,

composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann, J.N. Cunha Rodrigues, R. Schintgen (Rapporteur) and F. Macken, Judges,

Advocate General: L.A. Geelhoed,
Registrar: R. Grass,

having regard to the written procedure,after considering the observations submitted on behalf of:

– the Land Baden-Württemberg, by S. Karajan, acting as Agent,

– the German Government, by W.-D. Plessing, acting as Agent,

– the Commission of the European Communities, by D. Martin, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 25 May 2004,

gives the following

Judgment

1 The reference for a preliminary ruling concerns the interpretation 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 (‘Decision No 1/80’). The Association Council was established by the Agreement establishing an Association between the European Economic Community and Turkey, which was signed on 12 September 1963 at Ankara by the Republic of Turkey, of the one part, and the Member States of the EEC and the Community, of the other part, and was concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (Journal Officiel 1964 217, p. 3685; the Agreement is published at OJ 1977 L 361, p. 29) (‘the Association Agreement’).

2 That reference was made in the context of proceedings between Mr Ayaz, a Turkish national, and the Land Baden-Württemberg concerning the latter’s decision refusing him an extension of his permit to reside temporarily in Germany and ordering his expulsion from the territory of that Member State.

Legal framework

The EEC-Turkey Association

3 The aim of the Association Agreement, under Article 2(1) thereof, is to promote the continuous and balanced strengthening of trade and economic relations between the Contracting Parties, including in the labour sector, by progressively securing freedom of movement for workers (Article 12) and by abolishing restrictions on freedom of establishment (Article 13) and on freedom to provide services (Article 14), for the purpose of improving the standard of living of the Turkish people and facilitating the accession of the Republic of Turkey to the Community at a later date (fourth recital in the preamble and Article 28).

4 To that end, the Association Agreement provides for a preparatory stage enabling the Republic of Turkey to strengthen its economy with aid from the Community (Article 3), a transitional stage during which a customs union is progressively to be established and economic policies are to be aligned more closely (Article 4) and a final stage which is to be based on the customs union and is to entail closer coordination of the economic policies of the Contracting Parties (Article 5).

5 Article 12 of the Association Agreement, which is included under Title II thereof, entitled ‘Implementation of the transitional stage’, provides:

‘The Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers between them.’

6 Article 22(1) of the Association Agreement provides:

‘In order to attain the objectives of this Agreement the Council of Association shall have the power to take decisions in the cases provided for therein. Each of the Parties shall take the measures necessary to implement the decisions taken. ...’

7 Article 1 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 (Journal Officiel 1972 L 293, p. 1; the Additional Protocol is published at OJ 1977 L 361, p. 60) (‘the Additional Protocol’), lays down the conditions, arrangements and timetables for implementing the transitional stage referred to in Article 4 of the Association Agreement. Under Article 62 thereof, the Additional Protocol is to form an integral part of that agreement.

8 The Additional Protocol includes a Title II, entitled ‘Movement of Persons and Services’, Chapter I of which deals with ‘Workers’.

9 Article 36 of the Additional Protocol, which is part of Chapter I, provides that freedom of movement for workers between Member States of the Community and Turkey is to be secured by progressive stages in accordance with the principles set out in Article 12 of the Agreement of Association between the end of the 12th and the 22nd year after the entry into force of that agreement and that the Council of Association is to decide on the rules necessary to that end.

10 On 19 September 1980, the Association Council adopted Decision No 1/80. Articles 6, 7 and 14 of that decision are contained in Chapter II, entitled ‘Social provisions’, Section 1 of which concerns ‘Questions relating to employment and the free movement of workers’.

11 Article 6(1) of Decision No 1/80 reads as follows:

‘Subject to Article 7 on free access to employment for members of his family, a Turkish worker duly registered as belonging to the labour force of a Member State:

– shall be entitled in that Member State, after one year’s legal employment, to the renewal of his permit to work for the same employer, if a job is available;

– shall be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of Member States of the Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment services of that State, for the same occupation;

– shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment.’

12 The first paragraph of Article 7 of Decision No 1/80 provides:

‘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.’

13 Article 14(1) of that decision provides:

‘The provisions of this section shall be applied subject to limitations justified on grounds of public policy, public security or public health.’

The other relevant provisions of Community law

14 Article 10(1) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968(II), p. 475), as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992 (OJ 1992 L 245, p. 1) (‘Regulation No 1612/68’), states:

‘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.’

The main proceedings and the question referred for a preliminary ruling

15 The file of the main proceedings indicates that Mr Ayaz, who was born on 24 September 1979 and is unmarried, came to Germany with his mother in 1991 to live with his stepfather.

16 It is common ground that Mr Ayaz’s stepfather, a Turkish national, has since the 1980s been duly registered as belonging to the labour force in Germany, where he is legally resident.

17 According to the national court, Mr Ayaz’s mother has never been authorised to work in Germany.

18 Since he entered Germany Mr Ayaz has resided, apart from a brief interruption at the end of 1999, with his mother and stepfather. During his stay in Germany, he completed his secondary education, obtaining the leaving certificate, and then attended a technical school for one year. He subsequently began but did not complete two courses of vocational training. Following a period of unemployment, he was intermittently employed as a driver.

19 Between 1997 and 2001, Mr Ayaz was on a number of occasions convicted by German courts of various criminal offences.

20 In Germany Mr Ayaz has held residence permits for a limited period, the last of which expired on 31 October 1999.

21 On 8 July 1999, he applied for a residence permit for an indefinite period, but no formal decision was taken on that application.

22 On 24 March 2000, Mr Ayaz applied for an extension of his residence permit for a limited period.

23 By decision of 9 August 2000, the Landratsamt Rems-Murr-Kreis (Rems-Murr-Kreis district administration) rejected the application and ordered Mr Ayaz to leave Germany within one month following notification of the decision, failing which he would be deported to Turkey.

24 On 14 September 2000, Mr Ayaz lodged an administrative appeal against that decision and at the same time applied to the Verwaltungsgericht (Administrative Court) Stuttgart for the grant of interim relief.

25 By decision of 30 October 2000, that court ruled that the administrative appeal had suspensory effect.

26 On 8 February 2002, the Regierungspräsidium (regional administration) Stuttgart rejected Mr Ayaz’s administrative appeal as unfounded, finding that he posed a high risk to public policy and public security because of the serious offences he had committed, and that neither the German Constitution nor the European Convention for the Protection of Human Rights and Fundamental Freedoms precluded his expulsion.

27 On 5 March 2002, Mr Ayaz brought an action against the decision of the Regierungspräsidium Stuttgart before the Verwaltungsgericht Stuttgart.

28 According to that court, the contested decision of 8 February 2002 is in accordance with national law, since the Ausländergesetz (German Law on Aliens) provides for automatic expulsion of an alien who, as in this case, has in the last five years been definitively convicted and sentenced to periods in juvenile detention totalling three-and-a-half years.

29 The national court takes the view that it is appropriate, however, to explore the possibility that Mr Ayaz might enjoy the protection against expulsion provided for in Article 14(1) of Decision No 1/80, as construed in Case C-340/97 Nazli [2000] ECR I-957, paragraphs 50 to 64. First, it is clear from that judgment that Article 14(1) precludes the expulsion of a Turkish national who enjoys a right granted directly by Decision No 1/80 when expulsion is ordered, following a criminal conviction, as a deterrent to other aliens without the personal conduct of the person concerned giving reason to consider that he will commit other serious offences prejudicial to the requirements of public policy in the host Member State. Second, the national court takes the view that in this case Mr Ayaz’s personal conduct does not indicate a specific risk of new and serious prejudice to the requirements of public policy, in consequence of which the expulsion order should be annulled pursuant to Article 14(1) of Decision No 1/80.

30 The national court believes that, for that provision to be applicable in the main proceedings, however, it is necessary to determine whether Mr Ayaz is one of the persons protected by Decision No 1/80.

31 According to the national court, Mr Ayaz cannot rely on the rights which Article 6(1) of Decision No 1/80 confers on Turkish workers belonging to the labour force of the Member State because he does not satisfy the conditions laid down by that provision.

32 As regards the application of the first paragraph of Article 7 of Decision No 1/80, the national court states that nor can Mr Ayaz rely on a right to remain in Germany by virtue of his mother, because she has never been in paid employment in the host Member State. Mr Ayaz’s stepfather, by contrast, does fulfil the condition of being duly registered as belonging to the labour force of that State, so that the question arises whether Mr Ayaz must be regarded as a ‘member of the family’ for the purposes of that provision. No clear answer to that question has been provided.

33 The Verwaltungsgericht Stuttgart considered that, in those circumstances, an interpretation of Community law was necessary for the resolution of the dispute and decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is a stepson aged under 21 years of a Turkish worker who is duly registered as belonging to the labour force of a Member State a member of the family within the meaning of the first paragraph of Article 7 of Decision No 1/80 …?’

On the question referred for a preliminary ruling

34 In order to rule on the question referred, it is appropriate to note as a preliminary point that, as evidenced by the very wording of the first paragraph of Article 7 of Decision No 1/80, enjoyment of the rights provided for under that paragraph is subject to two cumulative conditions which are set out therein: first, the person in question must be a member of the family of a Turkish worker already duly registered as belonging to the labour force of the host Member State and, second, the person must have been authorised by the competent authorities of that State to join that worker there.

35 Regarding the second condition, it is settled case-law that, as Community law stands at present, the provisions concerning the Association between the European Economic Community and the Republic of Turkey 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, most recently, Joined Cases C-317/01 and C-369/01 Abatay and Others [2003] ECR I-0000, paragraphs 63 and 65).

36 In the main proceedings, however, the question referred by the national court relates only to the first condition, noted in paragraph 34 of this judgment.

37 Regarding that condition, the question referred does not relate to the status of the Turkish national already present in the territory of the Member State as a worker duly registered as belonging to the labour force of that State − a matter which the national court considers to have been established − but relates solely to whether the stepson of such a worker is a ‘member of the family’ for the purposes of the first paragraph of Article 7 of Decision No 1/80.

38 In that regard, that provision contains no definition of the concept of ‘member of the family’ of the worker.

39 The concept must, however, be construed in a uniform manner at Community level, in order to ensure consistent application in the Member States.

40 Accordingly, its scope must be determined in terms of the objective it pursues and in the context in which it is placed.

41 First, as the Court has previously held, the system established by the first paragraph of Article 7 of Decision No 1/80 is designed to create conditions conducive to family unity 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).

42 Second, the same objective is pursued by Regulation No 1612/68 – which, as stated by the Court in paragraphs 82 and 83 of its judgment in Case C-171/01 Wählergruppe Gemeinsam [2003] ECR I‑4301, is intended to clarify the requirements of Article 48 of the EC Treaty (now, after amendment, Article 39 EC) – and, in particular, by Article 10(1) thereof.

43 In Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 57, the Court held in that regard that the right of his spouse and their descendants who are under the age of 21 years or are dependants to install themselves with the migrant worker under that provision of Regulation No 1612/68 concerns both the descendants of that worker and those of his spouse.

44 Since Case C-434/93 Bozkurt [1995] ECR I-1475, paragraphs 14, 19 and 20, the Court has consistently inferred from the wording of Article 12 of the Association Agreement and Article 36 of the Additional Protocol, as well as from the objective of Decision No 1/80, which is progressively to secure freedom of movement for workers, guided by Article 48 of the Treaty, Article 49 of the EC Treaty (now, after amendment, Article 40 EC) and Article 50 of the EC Treaty (now Article 41 EC), that the principles laid down in those articles must be extended, so far as possible, to Turkish nationals who enjoy the rights conferred by that decision (see, most recently, Wählergruppe Gemeinsam, cited above, paragraph 72, and, by analogy, with respect to Article 14 of the Association Agreement in relation to freedom to provide services, Abatay and Others, cited above, paragraph 112).

45 It follows that, in the determination of the scope of ‘member of the family’ for the purposes of the first paragraph of Article 7 of Decision No 1/80, reference should be made to the interpretation given to that concept in the field of freedom of movement for workers who are nationals of the Member States of the Community and, more specifically, to the scope given to Article 10(1) of Regulation No 1612/68 (see, by analogy, Wählergruppe Gemeinsam, cited above, and Case C-465/01 Commission v Austria [2004] ECR I-0000, regarding the transposition of the interpretation of Article 8(1) of that regulation for the purpose of the right of Turkish workers to stand for election to bodies such as workers’ chambers or works councils).

46 Moreover, there is nothing in the first paragraph of Article 7 of Decision No 1/80 which might give the impression that the scope of the concept of ‘member of the family’ is limited to the worker’s blood relations.

47 The foregoing interpretation is, moreover, supported by Case C-179/98 Mesbah [1999] ECR I-7955, in which the Court ruled that the term ‘member of the family’ of a Moroccan migrant worker, within the meaning of Article 41(1) of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 27 April 1976 and approved on behalf of the Community by Council Regulation (EEC) No 2211/78 of 26 September 1978 (OJ 1978 L 264, p. 1), extends to relatives in the ascending line of that worker and of his spouse who live with him in the host Member State. That interpretation, given in respect of a cooperation agreement, must apply a fortiori with respect to an association agreement, which pursues a more ambitious objective (see paragraph 3 of this judgment).

48 In the light of all the foregoing considerations, the answer to the question referred must be that the first paragraph of Article 7 of Decision No 1/80 is to be interpreted as meaning that a stepson who is under the age of 21 years 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, for the purposes of that provision, and enjoys the rights conferred on him by that decision, provided that he has been duly authorised to join that worker in the host Member State.

Costs

49 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) rules as follows:

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 established by the Association Agreement between the European Economic Community and Turkey, is to be interpreted as meaning that a stepson who is under the age of 21 years 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, for the purposes of that provision, and enjoys the rights conferred on him by that decision, provided that he has been duly authorised to join that worker in the host Member State.

Signatures.

1 – Language of the case: German. Top

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