Ismail Derin v Landkreis Darmstadt-Dieburg.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2007:20
• Date: 11 January 2007
• Celex Number: 62005CC0325
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-325/05

OPINION OF ADVOCATE GENERAL

BOT

delivered on 11 January 2007 ¹(1)

Case C‑325/05

Ismail Derin

v

Landkreis Darmstadt-Dieburg

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

(EEC-Turkey Association Agreement – First paragraph of Article 7 of Decision No 1/80 of the Association Council – Turkish national more than 21 years of age no longer dependent on his parents – Loss of rights of access to employment and of residence – Article 59 of the Additional Protocol – More favourable treatment than that of nationals of Member States)

1. This reference for a preliminary ruling concerns the interpretation of Article 7 of Decision No 1/80 of the Association Council (2) of 19 September 1980 on the development of the Association between the European Economic Community and Turkey. (3) That article sets out the conditions under which a member of the family of a Turkish worker who is or was duly registered as belonging to the labour force of a Member State has a right of access to employment in that State and, as a corollary of that right, a right of residence in that State.

2. The national court calls into question the case‑law of the Court of Justice relating to the duration of the rights conferred by the said provision on the child of a Turkish worker and to the conditions under which those rights may be limited.

3. In Aydinli (4) the Court held that the right of access to employment and the right of residence do not end when the child of a Turkish worker is more than 21 years of age and lives independently. The Court also stated that those rights may be limited in only two situations: first, on grounds of public policy, public security or public health and, second, where the person concerned leaves the territory of the State for a significant length of time without legitimate reason.

4. As a result of the judgment in Aydinli, the Verwaltungsgericht Darmstadt (Administrative Court, Darmstadt, Germany) asks the Court principally whether, in so far as that case‑law relates to a child aged over 21 years who is no longer dependent on his parents, it is compatible with Article 59 of the Additional Protocol, (5) by virtue of which, in the areas covered by the Protocol, the Republic of Turkey cannot be given more favourable treatment than that received by a Member State under the EC Treaty.

5. In this Opinion I shall show why, in my view, the duration of the rights conferred by Article 7 of Decision No 1/80 on the child of a Turkish worker must not be determined only by reference to Articles 10 and 11 of Council Regulation (EEC) No 1612/68, (6) but must be assessed in accordance with the Treaty rules on freedom of movement for workers. I shall then explain why the case-law on the scope of the rights conferred by Article 7 of Decision No 1/80 on the child of a Turkish worker is not, in general, contrary to Article 59 of the Additional Protocol. Finally, we shall see why, in the particular circumstances of the main proceedings, the case-law relating to the conditions under which the rights deriving from Article 7 may be limited does not have the effect of conferring upon a Turkish national in Mr Derin’s specific situation rights more extensive than those which a Community national would have.

I – The legal context

6. The questions referred by the Verwaltungsgericht Darmstadt call for consideration of the provisions specifying the rights of Turkish nationals within the European Union, which are relevant to the present case, and their scope as established by the case-law.

A – Relevant provisions

7. The relevant provisions appear in the Association Agreement, the Additional Protocol and Decision No 1/80.

1. The Association Agreement

8. As stated in Article 2(1) of the Association Agreement, the aim of the Agreement is to promote the continuous and balanced strengthening of trade and economic relations between the Community and the Republic of Turkey, 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.

9. To attain those aims, the Association Agreement provided for the progressive establishment of a customs union. Under Article 12, the parties also agreed on the progressive securing of freedom of movement for workers between their respective territories, agreeing to be guided by Articles 48, (7) 49 (8) and 50 (9) of the EC Treaty. They also decided to abolish restrictions on the freedom of establishment and the freedom to provide services, agreeing to be guided by the corresponding provisions of the Treaty.

10. For that purpose the Association entails a preparatory stage to enable the Republic of Turkey to strengthen its economy with the aid of the Community (Article 3), a transitional stage, during which the customs union must be progressively established and economic policies aligned (Article 4), and a final stage based on the customs union, entailing closer coordination of the economic policies of the Contracting Parties (Article 5).

11. The measures necessary for attaining those aims are taken by an Association Council consisting of, on the one hand, members of the Governments of the Member States and of the Commission of the European Communities and, on the other, members of the Turkish Government. The Association Council may thus adopt decisions within the limits of the responsibilities conferred upon it and which bind the Contracting Parties.

12. According to the preamble to, and Article 28 of, the Association Agreement, the Agreement is to facilitate the ultimate accession of the Republic of Turkey to the Community.

2. The Additional Protocol

13. The Additional Protocol lays down the conditions, detailed rules and timetable of the transitional stage of the Association. Title II of the Protocol includes several articles relating to the movement of persons and services.

14. Accordingly Article 36 provides that the freedom of movement of workers between Member States and the Republic of Turkey is to be secured by progressive stages in accordance with the principles set out in Article 12 of the Association Agreement between the end of the 12th and the 22nd year after the entry into force of that Agreement, in accordance with the rules adopted by the Association Council.

15. Article 59 provides as follows:

‘In the fields covered by this Protocol Turkey shall not receive more favourable treatment than that which Member States grant to one another pursuant to the Treaty establishing the Community.’

3. Decision No 1/80

16. The third recital in the preamble to Decision No 1/80 states that the decision is intended to improve the legal position of workers and their families in the social field in relation to the arrangements introduced by Decision No 2/76 of the Association Council of 20 December 1976.

17. Decision No 2/76 was presented as a first stage in the implementation of Article 12 of the Association Agreement and Article 36 of the Additional Protocol. It granted workers an increasing right of access to employment in the host State and also gave the children of such workers a right to take general education courses in that State. (10)

18. Article 6 of Decision No 1/80 sets out the rights of Turkish workers in the host Member State and Article 7 lays down the rights of members of the family of such workers in that State.

19. The rights conferred by Article 6 increase in accordance with the length of the period during which the worker has been legally employed in the host Member State. Article 6 provides as follows:

‘1. 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.

2. Annual holidays and absences for reasons of maternity or an accident at work or short periods of sickness shall be treated as periods of legal employment. Periods of involuntary unemployment duly certified by the relevant authorities and long absences on account of sickness shall not be treated as periods of legal employment, but shall not affect rights acquired as the result of the preceding period of employment.

…’

20. Article 7 of Decision No 1/80 distinguishes between, on the one hand, the family members of a worker who have been authorised to join him in the host Member State and who have resided there for a certain period and, on the other hand, the children of such a worker who have completed a course of vocational training in the Member State concerned. Article 7 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...