C-267/83

Land Berlin, represented by the Polizeipräsident [Chief Commissioner of Police], Berlin,

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,

THE COURT

composed of: Lord Mackenzie Stuart, President, G. Bosco, O. Due and C. Kakouris (Presidents of Chambers), U. Everling, K. Bahlmann and R. Joliét, Judges,

Advocate General: M. Darmon Registrar: D. Louterman, Administrator

gives the following

1. Facts and procedure which, by judgment of 6 November 1981, partly allowed her appeal. It quashed the On 3 July 1977 Aissatou Diatta, a administrative decisions in question and Senegalese national, married a . French ordered the Polizeipräsident to reconsider national, who has lived and worked in West Mrs Diatta's application under the Aus­ Berlin for several years and who holds a ländergesetz [Aliens Law] of 28 April 1965. residence permit issued to nationals of The Verwaltungsgericht dismissed the rest Member States of the EEC. The permit was of the appeal and ruled that Mrs Diatta was most recently extended until 21 August not entitled to a residence permit under 1985. Paragraph 7 (1) of the Aufent- haltsgesetz/EWG [German Law on the On 13 August 1977 Mrs Diatta joined her entry and residence of EEC nationals] of 22 husband in West Berlin and moved into his July 1969, on the ground that she did not apartment. live with her husband, a national of a Member State. Since February 1978 Mrs Diatta has been employed continuously as a domestic help. On 27 April 1982 the Oberverwaltungs­ On 13 March 1978 she obtained a gericht [Higher administrative court] Berlin temporary residence permit which was valid dismissed Mrs Diatta's appeal against the until 16 March 1980. decision of the Verwaltungsgericht. In the meantime, on 4 February 1982, the Mrs Diatta has lived apart from her Polizeipräsident had, in the exercise of his husband since 29 August 1978 and occupies discretion, again refused to grant a her own rented accommodation in West residence permit. Berlin. She intends to divorce her husband as soon as it is possible under French law. Mrs Diatta appealed on a point of law to the Bundesverwaltungsgericht [Federal On the expiry of her residence permit, Mrs administrative court]. Diatta applied to the competent authority for an extension. That application was The First Senate of the Bundesverwaltungs­ rejected by the Polizeipräsident [Chief gericht took the view that, in order to give Commissioner of Police], Berlin, by a judgment, it required an interpretation of decision of 29 August 1980, on the ground Articles 10 and 11 of Regulation (EEC) No that she was no longer a member of the 1612/68 of the Council of 15 October 1968 family of a national of a Member State of on freedom of movement for workers the EEC and that she did not live with her within the Community. By order of 18 husband. October 1983 it therefore decided, pursuant to Article 177 of the EEC Treaty, to stay The complaint lodged by Mrs Diatta against the proceedings and to request the Court of that decision was dismissed by a decision of Justice to give a preliminary ruling on the 12 December 1980 of the Senator für following questions: Inneres [the member of the Berlin Senate with responsibility for internal affairs]. (1) Is Article 10 (1) of Regulation (EEC) No 1612/68 to be interpreted as Mrs Diatta appealed to the Verwaltungs­ meaning that the spouse of a worker gericht [Administrative Court] Berlin, who is a national of a Member State

(a) In her view, Article 10 (1) of Regu­ lation No 1612/68 establishes a right of In accordance with Article 20 of the residence for the spouse of a worker who is Protocol on the Statute of the Court of a national of a Member State of the EEC Justice of the EEC, written observations also where the spouse lives in the same place were submitted on 9 February 1984 by Mrs although in separate accommodation. Diatta, the plaintiff in the main proceedings, Article 10 does not refer expressly to co­ represented by Dieter Eichhorn, habitation. It merely states that the worker Rechtsanwalt, Berlin, on 12 March by the must make available accommodation for the Land Berlin, represented by Heinz Scholze, use of his wife. The decisive requirement, Rechtsanwalt, Berlin, on 13 March by the according to the letter and spirit of that Commission of the European Communities, provision, is that the worker must make represented by Manfred Beschel, a member accommodation available for his spouse so of its Legal Department, on 15 March by as to ensure that the members of his family the Government of the Kingdom of the who join him are not homeless and do not Netherlands, represented by I. Verkade, live in unsatisfactory conditions, which Secretary General at the Ministry for would be contrary to public policy and Foreign Affairs, and by the United public security. Article 10 (3) refers to Kingdom, represented by G. Dagtoglou, of housing 'considered as normal ... in the the Treasury Solicitor's Department, and on region where he is employed' so as to avoid 16 March 1984 by the Federal Republic of any discrimination or difference of Germany, represented by Martin Seidel, treatment between national and foreign Ministerialrat, and Ernst Röder, Regie­ workers. Considerations of public security

Whilst the marriage continues to exist, reconciliation of the spouses is theoretically Since the existence of accommodation possible. That would not be so if the satisfying the criteria laid down by the regu­ residence permit were refused and the lation represents the only legal condition for spouse were thus compelled to leave. granting the spouse a personal right, founded on public law, to entry and residence, Regulation No 1612/68 may not As long as a marriage has not been be interpreted restrictively as meaning that it dissolved by a decision having the force of requires married couples to maintain normal res judicata, the administrative authorities married life together. may not assess the likelihood of a reconcilation or come to the conclusion that the marriage has irretrievably broken down. Otherwise the administrative authorities Since it is possible under German law to would pre-judge the decision of the courts. separate legally whilst living under the same roof, the requirement that the worker and his spouse must live together amounts to a mere formality. In such a case, it is quite Under Article 48 of the EEC Treaty the impossible for a third party or the auth­ members of a worker's family have a orities to verify whether married life personal right, founded on public law, to subsists, although, legally, the position is the enter and to reside in the territory of same where the spouse sets up a new another Member State. Thus the spouse is independent home. The continuation of protected by the law and that protection married life cannot be the decisive criterion. must be maintained for as long as the The spouses' centre of interests cannot be marriage itself exists. The spouse's right is reduced to life in one and the same not merely consequential. It pertains to her dwelling. Otherwise, where the couple are personally and is provided for by law; for legally separated, the decision to grant the example, it continues to exist after the spouse a right of residence would be worker's death. The independent nature of completely arbitrary, depending on whether the personal right of a member of the they continue to live in the matrimonial worker's family has been recognized by the home or whether they live in two separate Court of Justice in matters relating to social dwellings. security. The Court has adopted the principle that it would be contrary to the spirit and the purpose of the Community provisions not to grant the family of a If it were a mandatory condition that the worker from another Member State the married couple live under the same roof, the rights given to nationals. In view of the worker could at any time cause his spouse spirit of the provisions in question, that to be expelled by depriving her of principle has also been applied in relation to accommodation. If it were impossible for the members of the worker's family with a the spouse evicted in that way to set up an view to improving their legal position under

The fact that the motives for establishing a separate home may be different cannot alter (b) Regulation No 1612/68 succeeded the legal position. Regulation No 15 of the Council of 16 August 1961 concerning the first measures for establishing freedom of movement for workers within the Community (Journal Article 11 of Regulation No 1612/68 Officiel No 57, p. 1073) and Regulation No establishes a more extensive right of 38/64 of the Council of 25 March 1964 on residence than that provided for under freedom of movement for workers within Article 10. It cannot be interpreted the Community (Journal Officiel No 62, p. restrictively in the light of Article 10. That 965). It constituted the third and final phase would be contrary to the express wording in the introduction of the freedom of given to Article 11 by the legislature. In this movement for workers provided for in instance it is necessary to assess and apply Article 48 of the EEC Treaty. Article 11 without reference to the conditions laid down in Article 10.

Article 48 confers on the workers concerned The Land Berlin, the defendant in the main not only equality as regards the right to proceedings, proposes that the two work (Article 48 (3) (a)) but also a right of

DIATTA / LAND BERLIN

residence (Article 48 (3) (c)). Regulation No in that context is based on a desire to 1612/68 distinguishes between the two protect the workers themselves. Rights elements of the provisions. Only the 'right cannot be granted to members of the family to work' component is governed by Article where that consideration no longer 11. operates.

JUDGMENT OF 13. 2. 1985 — CASE 267/83

Article 11 does not confer on such a spouse an independent right of residence. Article 11 of Regulation No 1612/68 governs only the question of the rights of the spouse and the children regarding access to the labour market. That follows from the (a) Article 10 (1) is not to be interpreted as wording of the provision, which refers to a embracing the circumstances which pertain legal situation identical to that contemplated to the plaintiff. The right conferred by in Article 18 (1) of Regulation No 38/64. Article 10, inter alia on the spouses of workers, is the right of specified persons to 'install' themselves 'with' a worker.

It would however, be spending the weekends together. quite unnecessary for the achievement · of freedom of movement, and would distort the significance of the use of the concept of 'installation', if that article were to be interpreted as affording rights to persons In allowing the spouse to take up who no longer, in any real sense, relate to employment throughout the territory of the the worker so as to comprise an integral host State, regardless of the place of family unit. residence of the migrant worker, the Community regulation seeks to improve the spouse's employment prospects.

DIATTA / LAND BERLIN

that his spouse will avail herself of that worker makes available for his wife 'normal accommodation. housing' does nothing to promote the overriding objective of the regulation, which is to remove obstacles to the maintenance of family life and so encourage the movement (b) Article 11 of Regulation No 1612/68 of workers. makes no provision for a right of residence independent of the conditions specified in Article 10. The interpretation advanced by the plaintiff of the qualifying conditions of Article 10 for the purposes of Article 11 would provide Article 11 does not establish a right of arbitrary and unjustifiable results. Article 11 residence. That right, limited as it is, is relates to the position of a 'spouse' and not contained in Article 10. What Article 11 that of a former spouse. It clearly refers to does is to confer a right to undertake the present spouse of the worker. Where the employment upon the same class of spouses are divorced or separated it will be beneficiaries as are embraced by Article 10. difficult to maintain that any real family life Furthermore, it is clear that the two subsists. There is no logical reason for provisions are related and are to be distinguishing between a separated spouse regarded as complementary: they benefit the and a divorcee. Moreover, where by virtue same classes of person and exist for the of her separation from her husband the common purpose of eliminating obstacles to separated spouse has ceased to have any real the mobility of workers. Article 10 connection with the Member State establishes the worker's right to be joined by concerned, she cannot claim the right to his family; Article 11 (together with Article 12) establishes the conditions for the continue to live and work in that State. integration of that family into the host With regard to the facts of the present case, country. That common purpose would not it should also be noted that Article 48 of the be advanced if Articles 10 and 11 were to be Treaty does not in principle apply to regarded as providing for entirely separate nationals of non-member countries. and distinct rights.

The Government of the Kingdom of the State, they have such a right under Article 1 Netherlands submits the following obser­ of Regulation No 1612/68, in so far as they vations : undertake employment. That independent right of residence therefore may be added to the right of residence to which they are entitled under Article 10. In the event of the (a) Article 10 of Regulation No 1612/68 break-up of the family, only the right of establishes the right of a migrant worker to residence based on Article 10 ceases to bring the members of his immediate family apply. to the Member State where he works so that they can install themselves with him. That right helps to eliminate a serious obstacle to Where the members of the family are not the mobility of workers. nationals of a Member State, they have a right of residence only under Article 10 of the regulation. Where the family breaks up, It follows from both the wording and the the right of those persons to continue to purpose of Article 10 that the members of reside in the same country must be the worker's family must live with the considered in the light of the legislation of worker. That proposition is confirmed by the Member State where they reside. That the requirement regarding housing, imposed does not call in question the right to remain by Article 10 (3). That provision would be in the country which, in particular in the deprived of its significance if the worker's event of the worker's death, may arise from family were free to set up home elsewhere, Regulation No 1251/70. independently.

DIATTA / LAND BERLIN

18 May 1972 extending to workers The view that it is a necessary condition exercising the right to remain in the that the spouses live together in a common territory of a Member State after having dwelling suggests that the Community been employed in that State the scope of legislation not only makes the exercise of Directive No 64/221 (Official Journal, the right to free movement subject to the English Special Edition 1972 (II), p. 274). existence of a valid, undissolved marriage, but also imposes specific conditions on the spouses, concerning the way in which they must conduct their married life, in order to qualify, as a family, for the right to free Moroever, the rights to free movement of movement. The Community legislature the members of migrant workers' families never intended to lay down such rules. are not rights which pertain to those members but consequential rights. That is the case in particular where the members of the migrant worker's family are not nationals of a Member State. Only the relationship with the migrant worker confers on them the right to the freedom of The Community legislature did not intend movement provided for under Community to deal with specific problems of family law law. Thus Article 4 of Directive No 68/360 within the context of the right to free states expressly that a member of the family movement. There is no common concept, who is not a national of a Member State is shared by all Member States and all entitled to a residence document which has individuals, as regards the substance of the same validity as that issued to the marital relations. To attempt to commit the 'worker on whom he is dependent'. The aim Community legislature to the image of the is to ensure that if the worker exercises his family living 'under the same roof' or in the right to free movement he is able to same dwelling goes far beyond the maintain and continue family relationships. objectives pursued in the matter of free Conversely, the severance of special family movement. links with the migrant worker deprives the members of the family of the right to free movement established under Community law.

and of Directive No 68/360, the additional the outset, does not work. It emphasizes the right of undertaking employment. However, responsibility of the migrant worker, who if the migrant worker's spouse has the right must provide normal accommodation for to seek employment throughout the the members of his family. That provision territory, that provision is devoid of purpose may not however be interpreted as meaning unless she also has the possibility of living in that the existence of a common dwelling is a a place other than that where the migrant condition sine qua non for the residence of a worker himself resides. migrant worker's spouse. It represents a compromise between, on the one hand, the authorities' concern about hygiene and conditions of accommodation and, on the other hand, the fundamental right to freedom of movement. It must therefore be Article 3 (3) and (4) of Directive No 68/360 construed as requiring only that normal is especially important in this context. It housing must be genuinely available for the stipulates the conditions for the issue of a members of a migrant worker's family. The residence permit to the members of migrant same applies to Article 3 of Regulation No workers' families. The Community 1251/70, which merely follows the criteria legislature did not choose to impose for the laid down in Article 10 of Regulation No issue of a residence permit to a migrant 1612/68. worker's spouse the additional requirement of a common dwelling. The only condition laid down is that the spouse should have the status of a member of the worker's family. (b) The questions referred by the Bun­ desverwaltungsgericht require the following replies:

DIATTA / LAND BERLIN

territory of that Member State, subject to satisfy the conditions laid down in Article to the sole condition that the spouses 10, namely the existence of a family have the right of residence under Article relationship and reasonable accommodation, 10 of Regulation No 1612/68. only at the time of entry into the territory of another Member State. Thus, in its view, 3. Oral procedure the right of residence subsists even after the severance of the family or marital At the sitting on 19 September 1984 oral relationship. The Commission considers that argument was presented by Dr Ernst Roder, it would be contrary to fundamental rights on behalf of the German Government, and if a migrant worker could remove, unilat­ by Manfred Beschel, on behalf of the erally and arbitrarily, the protection Commission. accorded by Community law to the members of his family. At the sitting, in contrast to the view which it advanced in its written observations, the The Advocate General delivered his opinion Commission submitted that it was necessary at the sitting on 7 November 1984.

Decision

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).

(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 :

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10 Mrs Diatta, the plaintiff in the main proceedings, argues that Article 10 does not refer expressly to co-habitation; it merely requires the migrant worker to make available to the members of his family accommodation 'considered as normal'. The provision is intended to implement public policy and to protect public security by preventing the immigration of persons who would have to live in precarious conditions. However, that does not mean that the spouse or another member of the family cannot obtain additional space by renting separate accommodation. Moreover, Regulation No 1612/68 cannot be interpreted as requiring a married couple to live together. It is not for the immigration authorities to decide whether a reconciliation is still possible. Moreover, if co-habitation of the spouses were a mandatory condition, the worker could at any moment cause the expulsion of his

JUDGMENT OF 13. 2. 1985 — CASE 267/83

spouse by depriving her of a roof. Finally, Article 11 of the regulation establishes a more extensive right of residence than Article 10 and is necessarily based on the assumption that it is possible to choose to live in separate accommodation.

11 According to the Land Berlin, the defendant in the main proceedings, the sole aim of Article 10 of Regulation No 1612/68 is to protect migrant workers and to guarantee their mobility by enabling them to maintain their family ties. In consequence there are no grounds for granting a right of residence to the members of their families where that right is not derived from the fact that they live together. As for Article 11, that provision establishes not a right of residence but solely a right to work.

DIATTA / LAND BERLIN

intended solely to ensure the existence of normal accommodation for immigrants in order to satisfy the requirements of the authorities responsible for aliens with regard to hygiene and accommodation. Similarly, it is clear from Article 4 (3) and (4) of Council Directive No 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (Official Journal, English Special Edition 1968 (II), p. 485) that the issue of a residence permit is subject solely to the objective requirement of marriage and not to the additional requirement of a shared dwelling. At the hearing the Commission went further and expressed the view that the right of residence of members of a migrant worker's family and their right to exercise an activity as employed persons throughout the territory of the host State would not be extinguished in the event of severance of the family relationship after entry into that territory.

1 4 In order to reply to the questions submitted it is necessary to view Regulation No 1612/68 in its context.

15 That regulation is one of various measures intended to facilitate the achievement of the objectives of Article 48 of the Treaty. It must therefore enable a worker to move freely in the territory of the other Member States and to reside in their territoiy in order to work there.

16 To that end, Article 10 of the regulation provides that certain members of the migrant worker's family may also enter the territoiy of the Member State in which he is established and install themselves with him.

21 As regards Article 11 of Regulation No 1612/68, it is clear from the terms of that provision that it does not confer on the members of a migrant worker's family an independent right of residence, but solely a right to exercise any activity as employed persons throughout the territory of the State in question. Article 11 cannot therefore constitute the legal basis for a right of residence without reference to the conditions laid down in Article 10.

22 Consequently, in reply to the questions referred to the Court by the Bundesverwal­ tungsgericht, it must be stated that the members of a migrant worker's family, as defined in Article 10 of Regulation No 1612/68, are not necessarily required to live permanently with him in order to qualify for a right of residence under that provision and Article 11 of the same regulation does not establish a right of residence independent of that provided for in Article 10.

Costs

23 The costs incurred by the Governments of the Federal Republic of Germany, the United Kingdom and the Netherlands and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action before the national court, costs are a matter for that court.

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On those grounds,

P. Heim A. J. Mackenzie Stuart

Registrar President