Bozkurt (External relations) [2010] EUECJ C-303/08 (22 December 2010)

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(EEC-Turkey Association Agreement – Family reunification – Article 7, first paragraph, of Decision No 1/80 of the Association Council – Spouse of a Turkish worker who has cohabited with her for more than five years – Continuing existence of the right of residence after divorce – Conviction of the person concerned for violence towards his ex-wife – Abuse of rights)

1 This reference for a preliminary ruling concerns the interpretation of 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 (‘Decision No 1/80’). The Association Council was created by the Agreement establishing an Association between the European Economic Community and Turkey which was signed in Ankara on 12 September 1963 by the Republic of Turkey on the one hand and the Member States of the EEC and the Community on the other, and 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).

2 The reference has been made in proceedings between the Land Baden-Württemberg (‘the Land’) and Mr Bozkurt, a Turkish national, concerning proceedings to expel him from German territory.

3 Article 59 of the Additional Protocol 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 1973 C 113, p. 17) is worded as follows:

4 Section 1 of Chapter II of Decision No 1/80, headed ‘Social provisions’, is devoted to ‘[q]uestions relating to employment and the free movement of workers’. That section contains Articles 6 to 16 of that decision.

The dispute in the main proceedings and the questions referred for a preliminary ruling

8 Mr Bozkurt, who was born in Turkey in 1959, was allowed to enter German territory in April 1992.

9 In September 1993, he married a Turkish national who was in lawful paid employment in Germany and therefore held a permanent residence permit there. His wife acquired German citizenship in 1999.

10 Following his marriage, Mr Bozkurt obtained a temporary residence permit in October 1993, which was converted to a permanent residence permit in October 1998, that is to say after he had satisfied the five-year residence condition in the second indent of paragraph 1 of Article 7 of Decision No 1/80.

11 Since June 2000, Mr Bozkurt has lived separately from his wife. The couple divorced in November 2003.

12 During his residence in Germany Mr Bozkurt has worked for various employers. According to the referring court, it has not however been possible to establish the exact periods of employment because he has provided no specific details and documentary evidence for that purpose.

13 From the beginning of 2000 he was on sick leave for around 18 months, a period during which he was operated on for a brain tumour.

14 At the end of that cessation of work, he was dismissed by his employer. He has been unemployed since then and receives subsistence allowances under Part II of the Code of Social Law (Sozialgesetzbuch, Teil II). At first he was placed in municipal accommodation for the homeless, but since November 2005 he has been living in a small apartment which he rents from his brother.

15 After having already been convicted in 1996 and 2000 for assault causing injury and for damage to property, Mr Bozkurt was, in May 2004, found guilty of the rape of and causing bodily injury to his wife during a stay in Turkey in July 2002. As he was partially successful on appeal, his sentence was definitively fixed, on 17 January 2005, at two years’ imprisonment, which was suspended, with the result that he was released from detention on remand.

16 By decision of 26 July 2005, the Land decided to expel Mr Bozkurt with immediate effect (‘the decision to expel’), basing its decision on his last conviction, which confirmed his tendency to employ violence. The Land took the view that he could not rely on rights deriving from Article 6 or 7 of Decision No 1/80 on the ground that he had not found new employment within a reasonable period after losing his job and that he was, moreover, making no genuine efforts to that end.

17 Mr Bozkurt brought an action against the decision to expel, and the Verwaltungsgericht Stuttgart (Administrative Court, Stuttgart) first ordered that that decision be suspended and then overturned it by judgment of 5 July 2006.

18 The appeal brought by the Land against that judgment was dismissed by judgment of the Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court, Baden-Württemberg) of 14 March 2007. That court held that, having regard to the periods of lawful residence which Mr Bozkurt had already completed in Germany, he was entitled to claim a right of residence on the basis of the second indent of the first paragraph of Article 7 of Decision No 1/80. Consequently, the decision to expel was unlawful because it did not comply with the conditions applicable to European Union nationals, which must, in accordance with the case-law of the Court, be complied with in the case of Turkish nationals who have a right of residence under Decision No 1/80. Furthermore, that court held that the facts that Mr Bozkurt had been unemployed since 2000, that it was possible that he might never return to work because of serious illness, and that he had spent some nine months in prison did not mean that he had lost his legal rights under that provision of Decision No 1/80, having regard to the case-law of the Court according to which the right of residence, once it has been acquired, is independent of whether the conditions which led to its being acquired are still satisfied.

19 The Land thereupon appealed on a point of law to the Bundesverwaltungsgericht (Federal Administrative Court), submitting, first, that Mr Bozkurt had in the meantime lost his right of residence in Germany on account of his exclusion from the labour market and, secondly, that he could not legitimately rely on the first paragraph of Article 7 of Decision No 1/80 since he had severely damaged the physical well-being of the person from whom he derives his rights.

20 Although it agrees with the legal analysis of the Verwaltungsgerichtshof Baden-Württemberg in its judgment of 14 March 2007, the Bundesverwaltungsgerichtshof takes the view that, in order to rule on the dispute pending before it, it is necessary to ascertain whether, on the date of the decision to expel, Mr Bozkurt could rely on the protection conferred by the first paragraph of Article 7 of Decision No 1/80.

21 In that regard, the referring court considers that there is as yet no case-law of the Court on the point as to whether the right of residence in a Member State, which has been acquired by a Turkish national as a member of the family of a Turkish worker who is duly integrated into the labour force of that State, is lost as a result of a divorce which takes place after the right in question has been duly acquired.

22 Furthermore, that court is uncertain whether, having regard to the specific facts of the case in the main proceedings, a Turkish national such as Mr Bozkurt may legitimately claim a right of residence on the basis of the first paragraph of Article 7 of Decision No 1/80 without such a claim being regarded as an abuse. More specifically, it must be ascertained whether the beneficiary of a right which has been lawfully acquired may be stripped of that right where he has proved a posteriori to be unworthy in relation to the person from whom he had previously derived that right.

23 Taking the view that in those circumstances an interpretation of Decision No 1/80 was necessary to enable it to reach a decision in the case before it, the Bundesverwaltungsgericht decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

24 It is apparent from the case-file that the Turkish national at issue in the main proceedings satisfied all the necessary conditions to be legally entitled to the legal status provided for in the second indent of the first paragraph of Article 7 of Decision No 1/80 before his divorce took place.

25 In those circumstances, the referring court’s question must be understood as asking, in essence, whether the first paragraph of Article 7 of Decision No 1/80 is to be interpreted as meaning that a Turkish national such as the applicant in the main proceedings who, as a member of the family of a Turkish worker who is duly registered as belonging to the labour force of a Member State and as a result of his residing with his spouse for a continuous period of at least five years, enjoys the rights relating to the legal status conferred on the basis of the second indent of that provision, loses those rights on account of his divorce, which took place after those rights were acquired.

26 In order to answer that question, it must be observed, in the first place, that, 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, secondly, that he has been authorised by the competent authorities of that State to join that worker there. It is common ground that, in the present case, those conditions were met both by Mr Bozkurt and by his spouse.

27 In the second place, in accordance with the scheme established by the contracting parties in the context of that provision, the rights conferred by the provision on a Turkish national who satisfies the conditions referred to in the preceding paragraph are gradually increased on the basis of the period of time for which the person concerned has actually resided with the Turkish worker who is already lawfully present in the host Member State.

28 Thus, after being legally resident for three years, the Turkish national concerned becomes entitled to respond to any offer of employment, subject only to the priority to be given to workers of Member States of the European Union (Article 7, paragraph 1, first indent of Decision No 1/80).

29 After two additional years of lawful residence in the host Member State, the Turkish national enjoys free access to any paid employment of his choice (Article 7, first paragraph, second indent of Decision No 1/80). In the present case, Mr Bozkurt unquestionably satisfies that criterion.

30 It must be pointed out in that connection that, unlike the scheme provided for under Article 6(1) of Decision No 1/80, which is based on legal employment for certain periods, the relevant criterion for the first paragraph of Article 7 of that decision to apply is thus lawful residence with the Turkish migrant worker. After so residing for a certain period of time, the person concerned receives the right to work, but the first paragraph of Article 7 does not, however, impose an obligation to do so or make it a condition for the acquisition of a right guaranteed by Decision No 1/80 (see, to that effect, inter alia, Case C-373/03 Aydinli [2005] ECR I-6181, paragraphs 29 and 31; Case C-325/05 Derin [2007] ECR I-6495, paragraph 56; and Case C-�453/07 Er [2008] ECR I-7299, paragraphs 31 to 34). The situation of a Turkish national such as the person at issue in the main proceedings with regard to employment is therefore irrelevant.

31 In the third place, the Court has already held on numerous occasions, first, that the first paragraph of Article 7 of Decision No 1/80 has direct effect and, secondly, that the periods of residence as set out in that provision mean that a concomitant right of residence must be acknowledged to exist, without which those periods of residence would be rendered totally ineffective (see, inter alia, Er, paragraphs 25 and 26, and Case C-337/07 Altun [2008] ECR I-�10323, paragraphs 20 and 21).

32 In the fourth place, it should be noted that the scheme of gradual acquisition of rights provided for in the first paragraph of Article 7 of Decision No 1/80 pursues a dual objective.

33 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 into the host Member State (see, inter alia, Case C-351/95 Kadiman [1997] ECR I-2133, paragraphs 35 and 36; Case C-�65/98 Eyüp [2000] ECR I-�4747, paragraph 26; and Case C-467/02 Cetinkaya [2004] ECR I-�10895, paragraph 25).

34 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 position of that family member, who is, at that stage, already legally integrated into the host Member State, by giving him the means to earn his own living in that State and therefore to establish a position which is independent of that of the migrant worker (see, inter alia, Eyüp, paragraph 26; Cetinkaya, paragraph 25; Aydinli, paragraph 23; and Derin, paragraphs 50 and 71).

35 The Court has concluded from this 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 (see Derin, paragraph 51 and the case-law cited).

36 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.

37 It is true that those rights have their origin in the position previously held by the related Turkish worker in the territory of that State, through which his family member acquired a right of residence.

38 However, as the Commission of the European Communities correctly submits in its written observations, where the family member of such a worker has himself secured an individual right under to the first paragraph of Article 7 of Decision No 1/80, he has achieved a sufficient level of integration in the host Member State for his position to be regarded as separable from that of his relative which made possible his access to the territory of that State, and therefore as independent of the position of that relative (see, to that effect, Derin, paragraphs 50 and 71, and Altun, paragraphs 59 and 63).

39 That interpretation is also dictated in the light of the purpose of Decision No 1/80 taken a whole, regarding which it has repeatedly been held that it seeks to improve the situation of Turkish migrants in the host State by promoting the gradual integration in that State of Turkish nationals who satisfy the conditions laid down in one of the provisions of that decision and therefore enjoy the rights conferred on them by the decision (see, inter alia, Case C-�329/97 Ergat [2000] ECR I-1487, paragraphs 43 and 44; Derin, paragraph 53; and Altun, paragraphs 28 and 29).

40 It is on this view that the Court has held that rights such as those legally acquired by Mr Bozkurt on the basis of the first paragraph of Article 7 of Decision No 1/80 exist regardless of the continuing existence of the conditions which were necessary to give rise to those rights (see Ergat, paragraph 40; Cetinkaya, paragraph 31; Aydinli, paragraph 26; Derin, paragraph 53; and Altun, paragraph 36), 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 (see, to that effect, inter alia, Ergat, paragraphs 43 and 44).

41 The interpretation referred to in the preceding paragraph is merely the expression of the more general principle of respect for acquired rights, set out in the judgment in Case C-237/91 Kus [1992] ECR I-�6781, paragraphs 21 and 22, a principle according to which, where the Turkish national may legitimately rely on rights pursuant to 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. In the Kus case, the circumstance in question was, as a matter of fact, a marriage which had allowed the Turkish national concerned to enter the territory of the host Member State and was followed by a divorce which took place at a time when the person concerned had already acquired rights, in that case under Article 6(1) of Decision No 1/80. It should be noted that, by means of paragraph 22 of the judgment in Case C-�355/93 Eroglu [1994] ECR I-�5113, that same principle was made applicable in the context of Article 7 of Decision No 1/80 (see, to the same effect, inter alia, Ergat, paragraph 40; Aydinli, paragraph 26; Derin, paragraph 50; and Altun, paragraphs 42 and 43).

42 As regards, in the fifth place, the circumstances which result in the loss of the rights conferred by the first paragraph of Article 7 of Decision No 1/80 on members of a Turkish worker’s family who fulfil the conditions laid down in that paragraph, it is also settled case-law that there can be only two kinds of restrictions on those rights, namely, either a restriction based on the fact that the presence of the Turkish migrant in the host Member State constitutes, on account of his personal conduct, a genuine and serious threat to public policy, public security or public health, in accordance with Article 14(1) of that decision, or a restriction based on the fact that the person concerned has left the territory of that State for a significant length of time without legitimate reason (see, inter alia, Er, paragraph 30, and Altun, paragraph 62).

43 The exhaustive nature of the restrictions set out in the preceding paragraph has been reaffirmed consistently by the Court (see, inter alia, Cetinkaya, paragraph 38; Derin, paragraph 54; Er, paragraph 30; and Altun, paragraph 62).

44 From all the foregoing explanations, it follows that the divorce of the spouses, if it takes place after the family member concerned has duly acquired the rights conferred by the first paragraph of Article 7 of Decision No 1/80, is irrelevant with regard to the continuing existence of those rights for the person entitled, even if, initially, that person could secure them only through his ex-spouse.

45 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. As the Advocate-General stated at points 50 to 52 of her Opinion, on similar grounds to those set out on by the Court in paragraphs 62 to 67 of Derin and in paragraph 21 of the judgment in Case C-�349/06 Polat [2007] ECR I-8167, 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 35 to 38 and 43).

46 In view of the foregoing, the answer to the first question is therefore that the first paragraph of Article 7 of Decision No 1/80 is to be interpreted as meaning that a Turkish national such as the applicant in the main proceedings who, as a member of the family of a Turkish worker who is duly registered as belonging to the labour force of a Member State and as a result of his residing with his spouse for a continuous period of at least five years, enjoys the rights relating to the legal status conferred on the basis of the second indent of that provision, does not lose those rights on account of his divorce, which took place after those rights were acquired.

47 It is settled case-law that European Union law cannot be relied on for abusive or fraudulent ends and that the national courts may, case by case, take account – on the basis of objective evidence – of abuse or fraudulent conduct on the part of the persons concerned in order, where appropriate, to deny them the benefit of the provisions of that law (see, inter alia, Case C-212/97 Centros [1999] ECR I-1459, paragraph 25; Case C-255/02 Halifax and Others [2006] ECR I-1609, paragraph 68; and Case C-16/05 Tum and Dari [2007] ECR I-7415, paragraph 64).

48 Thus the Court has ruled that periods in which a Turkish national was employed only as a result of fraudulent conduct which led to a conviction cannot be regarded as legal in respect of the application of Article 6(1) of Decision No 1/80, as the person concerned did not, in actual fact, satisfy the conditions laid down by that provision and did not therefore legally have a right under that decision (see Case C-�285/95 Kol [1997] ECR I-3069, paragraphs 26 and 27, and Case C-�37/98 Savas [2000] ECR I-2927, paragraph 61).

49 It cannot be accepted that a Turkish national should seek to procure improperly the enjoyment of advantages guaranteed by one of the provisions of Decision No 1/80.

50 However, in the present case, it is apparent from the file submitted to the Court by the referring court that the national courts which ruled on the substance of the case currently pending before the Bundesverwaltungsgericht expressly stated that Mr Bozkurt was legally entitled to the legal status provided for in the second indent of the first paragraph of Article 7 of Decision No 1/80. Moreover, there has been no mention before the Court of any factor capable of suggesting that, in the main proceedings, the marriage was a sham contracted with the sole aim of enjoying abusively advantages provided for by the law governing the association between the EEC and Turkey.

51 In those circumstances, it is clear that, in the main proceedings, Mr Bozkurt is merely exercising rights which are expressly conferred on him by Decision No 1/80 and for the acquisition of which he has satisfied all the necessary conditions.

52 The fact that such a Turkish national relies fully on the rights guaranteed by that decision, which he has previously legally acquired, cannot, as such, be considered to constitute an abuse of rights.

53 The referring court, without however asking a question on the interpretation of Article 14(1) of Decision No 1/80, nevertheless enquires whether, in the particular circumstances of the case in the main proceedings, Mr Bozkurt’s claim to the legal status acquired pursuant to the first paragraph of Article 7 of that decision is liable to conflict with public policy, having regard to the serious criminal offence which he committed, after acquiring that legal status, against the very person who enabled him to obtain that status.

54 In that regard, it must be pointed out that it is Article 14(1) of Decision 1/80 which establishes the relevant legal framework for assessing to what extent a Turkish national who has been convicted of criminal offences may be deprived, by means of expulsion from the host Member State, of the rights which he derives directly from that decision (see, inter alia, Derin, paragraph 74).

55 When determining the scope of the public policy exception provided for in that provision, reference should, according to settled case-law, 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 of the European Union (see, inter alia, Polat, paragraph 30).

56 The Court has always emphasised that that exception is a derogation from the fundamental principle of freedom of movement for persons, which must be interpreted strictly, and that its scope cannot be determined unilaterally by the Member States (see, inter alia, Polat, paragraph 33 and the case-law cited).

57 According to the settled case-law of the Court, reliance by a national authority on the concept of public policy presupposes the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to a fundamental interest of society (Polat, paragraph 34 and the case-law cited).

58 Furthermore, measures taken on grounds of public policy or of public security are to be based exclusively on the personal conduct of the individual concerned. Such measures can thus not be ordered automatically on general preventive grounds following a criminal conviction (Polat, paragraphs 31 and 35).

59 The existence of a previous criminal conviction can, therefore, only be taken into account in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy (Polat, paragraph 32 and the case-law cited).

60 It is therefore for the national authorities concerned to assess on a case-by-case basis the personal conduct of the offender and whether it constitutes a present, genuine and sufficiently serious threat to public policy and security, and those authorities are also required to observe both the principle of proportionality and the fundamental rights of the person concerned. In particular, a measure ordering expulsion based on Article 14(1) of Decision No 1/80 may be taken only if the personal conduct of the person concerned indicates a specific risk of new and serious prejudice to the requirements of public policy (see Derin, paragraph 74).

61 In view of all of the foregoing considerations, the answer to the second question is that:

62 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.

1. The first paragraph of Article 7 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council created by the Agreement establishing an Association between the European Economic Community and Turkey, is to be interpreted as meaning that a Turkish national such as the applicant in the main proceedings, who, as a member of the family of a Turkish worker who is duly registered as belonging to the labour force of a Member State and as a result of his residing with his spouse for a continuous period of at least five years, enjoys the rights relating to the legal status conferred on the basis of the second indent of that provision, does not lose those rights on account of his divorce, which took place after those rights were acquired.

2. It is not an abuse of rights for a Turkish national such as the applicant in the main proceedings to rely on a right legally acquired pursuant to the first paragraph of Article 7 of Decision No 1/80 even though the person concerned, after acquiring that right through his former wife, committed a serious offence against her which gave rise to a criminal conviction.

By contrast, Article 14(1) of Decision No 1/80 does not preclude a measure ordering the expulsion of a Turkish national who has been convicted of criminal offences, provided that his personal conduct constitutes a present, genuine and sufficiently serious threat to a fundamental interest of society. It is for the competent national court to assess whether that is the case in the main proceedings.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Bozkurt (External relations) [2010] EUECJ C-303/08 (22 December 2010) URL: http://www.bailii.org/eu/cases/EUECJ/2010/C30308.html Cite as: [2010] EUECJ C-303/8, [2010] EUECJ C-303/08

Court of Justice of the European Communities (including Court of First Instance Decisions)