Engin Ayaz v Land Baden-Württemberg.

• Jurisdiction: European Union
• Celex Number: 62002CC0275
• ECLI: ECLI:EU:C:2004:314
• Date: 25 May 2004
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-275/02

OPINION OF ADVOCATE GENERAL
GEELHOED
delivered on 25 May 2004(1)


Case C-275/02

Engin Ayaz
v
Land Baden-Württemberg


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

(Interpretation of Article 7 of Decision No 1/80 of the EEC-Turkey Council of Association – Right of residence of members of the family of a Turkish worker duly registered as belonging to the labour force – Adult stepson)

I – Introduction 1. In this case the Verwaltungsgericht Stuttgart (Stuttgart Administrative Court) has referred to the Court for a preliminary ruling a question concerning the interpretation of Decision No 1/80 of the EEC-Turkey Council of Association (2) (hereinafter ‘Decision No 1/80’). More specifically, the national court wishes to ascertain whether the stepson aged under 21 years of a Turkish worker duly registered as belonging to the labour force of a Member State is to be regarded as a member of the family within the meaning of the first paragraph of Article 7 of that decision. 2. The importance of the case stems primarily from the context in which this question has been raised. Turkish workers and the members of their families derive rights in the territory of the European Community from Articles 6 and 7 of Decision No 1/80, a decision which implements the Association Agreement between the EEC and Turkey. (3) Those rights differ fundamentally from those which Community workers and the members of their families derive from Article 39 et seq. EC and Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (4) (hereinafter ‘Regulation No 1612/68’), which is based on Article 40 EC. 3. The national court asks for an interpretation of the term ‘member of the family’ in Article 7 of Decision No 1/80. The decision itself does not explain this term, and the Court has not yet been called upon to consider its substance. In its judgment in Baumbast and R, (5) however, the Court recognised the rights of the stepchildren of a Community worker on the basis of Regulation No 1612/68. The case here at issue concerns the relevance of this judgment to the rights of a stepchild of a Turkish worker, given the fundamental difference between Decision No 1/80 and Regulation No 1612/68. 4. In addition, the question gives cause for a more precise definition of a stepchild benefiting from Decision No 1/80. At the time of his application for a residence permit (which gave rise to the main proceedings), the applicant in the main proceedings had reached the age of majority under German law, but was not yet 21 years of age. He had also been found guilty of a number of criminal activities. II – Legal background A – The EEC-Turkey Association Agreement 5. The aim of the Association Agreement, according to Article 2(1) thereof, is to promote the continuous and balanced strengthening of trade and economic relations between the Contracting Parties, including relations concerning workers, 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). 6. To this end, the Association Agreement provides for a preparatory stage to enable 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 the economic policies of Turkey and the Community 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). 7. Article 6 of the Association Agreement reads: ‘To ensure the implementation and the progressive development of the Association, the Contracting Parties shall meet in a Council of Association which shall act within the powers conferred upon it by this Agreement.’ The Council of Association thus has the power to take decisions to attain the objectives of the Agreement in the cases provided for therein (Article 22(1) of the Association Agreement). Each of the Parties is to take the measures necessary to implement the decisions taken. 8. Article 9 of the Association Agreement stipulates: ‘The Contracting Parties recognise that within the scope of this Agreement and without prejudice to any special provisions which may be laid down pursuant to Article 8, any discrimination on grounds of nationality shall be prohibited in accordance with the principle laid down in Article 7 of the Treaty establishing the Community.’ B – Decision No 1/80 9. The Council of Association adopted Decision No 1/80 on 19 September 1980. Surprisingly, this decision has never been published in the Official Journal. (6) Article 6(1) of the decision states: ‘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.’

10. Of prime importance in this case is Article 7, which governs the position of the members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State. Family members who have been authorised to join the worker:

–

are to 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 the Member State concerned;

–

are to 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. 11. Article 14(1) reads: ‘The provisions of this section (7) shall be applied subject to limitations justified on grounds of public policy, public security or public health.’ C – Regulation No 1612/68 12. Article 10 of the Regulation reads: ‘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 referred to above or living under his roof in the country whence he comes. 3. For the purposes of paragraphs 1 and 2, the worker must have available for his family housing considered as normal for national workers in the region where he is employed; this provision, however, must not give rise to discrimination between national workers and workers from the other Member States.’ 13. I would also refer, finally, to Article 11 of the Regulation, which stipulates: ‘Where a national of a Member State is pursuing an activity as an employed or self-employed person in the territory of another Member State, his spouse and those of the children who are under the age of 21 years or dependent on him shall have the right to take up any activity as an employed person throughout the territory of that same State, even if they are not nationals of any Member State.’ III – Facts A – The facts in the main proceedings 14. Engin Ayaz, the applicant in the main proceedings, was born on 24 September 1979, is unmarried and is a Turkish national. On 19 May 1991 he entered the territory of the Federal Republic of Germany from Turkey with his mother to live with his mother and stepfather. The stepfather has been legally resident in Germany as a worker since the 1980s. 15. According to the order for reference, the mother is not in active employment; she has never received an Arbeitserlaubnis or Arbeitsgenehmigung (work permit). 16. Since his arrival in Germany Ayaz has lived, apart from a brief interruption from the late autumn of 1999 until early 2000, together with his stepfather and his mother in a shared dwelling. During this period he completed Hauptschule (preparatory intermediate vocational education) and then took a one-year course of vocational training. Subsequently, he began (but did not complete) two courses of vocational training, was unemployed at times and worked as a driver at other times. Between 1997 and 2001 he was convicted of a number of criminal offences, varying from driving...