C-249/86

OPINION OF MR MISCHO — CASE 249/86

OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 17 January 1989*

Mr President, (Paragraph 1(2)) of a person who has Members of the Court, himself such a permit and has housing for himself and the members of his family of a nature considered appro­ priate according to the criteria applied in that regard in the place of residence. 1. In these proceedings the Commission seeks a declaration by the Court that the Federal Republic of Germany has failed to fulfil its obligations under the Treaty estab­ lishing the European Economic Community, in particular Article 48 thereof, and under Article 10(3) of Regulation No 1612/68 of the Council of 15 October 1968 1 by adopting and maintaining in force legislative provisions which lay down or permit, as a prerequisite for the renewal of a residence (5) ... permit for members of the family of migrant workers of the Community, the requirement that they live in appropriate housing not only when they install themselves with the migrant worker concerned in the territory of the Federal Republic of Germany but for A residence permit granted to members the entire duration of their residence. of the family of a worker shall be extended on demand for a period of at least five years if the conditions for the issue thereof continue to be fulfilled.

2. The German legislation which is chal­ lenged is the Aufenthaltsgesetz EWG (Law on the residence of EEC nationals), which, in the version in force from 31 January 1980, 2provides in Article 7:

(9) The period of validity of a residence '(1) A residence permit shall be granted on permit may subsequently be reduced if demand to members of the family the conditions required for its issue are 3 no longer fulfilled.' * Original language: French. 1 — Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within 3 — 'Residence permit' is the English translation of the German the Community (OJ, English Special Edition 1968 (II) term 'Aufenthaltserlaubnis' and the French term 'autori­ p. 475). sation de séjour'. It should be noted that in Directive 68/360/EEC 'Aufenthaltserlaubnis' corresponds to 'carte 2 — BundesgesetzblattI,6.2.1980. D. 117. de séjour'.

(a) his spouse and their descendants who are under the age of 21 years or are dependants; 4. The German Government, on the other hand, considers that the purpose of Article 10(3) is to regulate the right of residence (b) dependent relatives in the ascending line over the entire period during which the of the worker and his spouse. worker lives in the host Member State. In its view, the very concept of installation ('Wohnung nehmen') suggests an element of duration. The purpose of Article 10 is to (2) Member States shall facilitate the enable members of the family to live in a admission of any member of the family not settled way with the worker. There is no coming within the provisions of paragraph 1 reason to require normal housing solely at if dependent on the worker referred to the time when the family is reunited and above or living under his roof in the country then accept the possibility that that housing whence he comes. might subsequently deteriorate to the point where it became abnormal. The permanent character of the requirement in Article 10(3) is also justified by the more general (3) For the purposes of paragraphs 1 and 2, objectives pursued, namely protection of the the worker must have available for his worker himself and protection of public family housing considered as normal for security and public policy. 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.' 5. According to the German Government, moreover, in administrative practice there is no discrimination against migrant workers 3. In the Commission's view it follows from because if housing conditions are unlawfully the actual wording of Article 10(3), which overcrowded German citizens are also liable should be interpreted restrictively, that the to penalties; these are generally imposed by requirement of normal housing is only the local authorities on the basis of legis­ applicable when the members of the family lation of the Länder. It is obvious that no of the migrant worker first install themselves country can deport its own nationals from under his roof, not for the entire duration its territory.

10. The passages of the German law which are in issue are aimed not at the worker himself but solely at the members of his family. It is they who are liable to be 7. Before analysing the scope of Article deported, whereas in most cases they will 10(3), I shall examine whether the expla­ have played little or no part in the decision nations put forward by the Federal Republic to occupy housing which lacks sufficient of Germany as regards the way in which the room or is insalubrious. contested provisions are applied in practice may be taken into account by the Court.

11. Since the abovementioned explanations given by the Federal Republic of Germany concern only the conditions under which the migrant worker himself could be made 8. In this connection it should be pointed the subject of a deportation order on the out first of all that according to the grounds of persistent refusal to procure consistent case-law of the Court mere appropriate housing for himself and his administrative practices, which by their family, those explanations cannot therefore nature are alterable at will by the authorities be taken into account in this context.

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14. It is clear, first of all, that compliance with the housing requirement may be verified whenever an additional member of the worker's family arrives, even if this is a long time after the worker himself or the first members of his family who arrived after him have installed hemselves. If their housing is thereby rendered inadequate it is 16. However, what is meant by 'housing only that additional family member who can considered as normal for national workers be refused the right to install himself with in the region where he is employed'? In the the worker. The arrival of a new member German Government's view (see its reply to cannot serve as a pretext for refusing to the questions put by the Court, p. 11, extend or for withdrawing the residence second paragraph of point (e)) it is a permit of another member of the family question of the standard established who already lawfully lives there or, a (literally 'set') by German workers in the fortiori, that of the worker himself. Thus the region in question ('der von deutschen only real question is whether a family Arbeitnehmern regionale gesetzte Standard'), member who already lives there may be that is to say the average standard that can refused an extension of his residence permit be determined by considering the type of or have it withdrawn if the housing can no housing occupied in fact by German longer be regarded as normal following employees in the region in question. The another event, such as the birth of a child, a German Government also observes that child's reaching adulthood, or the fact that given that the criterion is determined as to the family has been forced to move or has 4 — At paragraph 43 of its judgment of 21 June 1988 in Case voluntarily moved into housing which lacks 39/86 Lair v Universitat Hannover [1988] ECR 3161, the enough room or is insalubrious. Court accepted the concept of abuse.

its content by the actual situation in the authorities authorize or refuse entry into the region and that it is therefore variable country to members of the family of the depending on the local level of social devel­ worker and it is compliance with those same opment, by definition in the Federal rules which they subsequently enforce. Republic of Germany there is no provision or measure which obliges German nationals to conform to the housing conditions considered normal for German workers in the region (page 8, first paragraph of the reply to the Court's questions). Finally, the 18. The sole purpose of Article 10(3) is to Federal Republic considers there can be no ensure that the abovementioned rules are question of discrimination in view of the complied with when one or more members fact that immigrant workers are not of the family enter the country and during subjected to requirements that are stricter the initial period following entry. That than those resulting from the actual regional article cannot subsequently be relied on to situation. withdraw the residence permit or to refuse renewal of the permit if a new factor is introduced such as the examples given in paragraph 14 above. At that point the family of the migrant worker must be treated in the same way as citizens of the host country. The family may only be subjected to the penalties provided for in the relevant rules concerning nationals who infringe those same rules, because otherwise the prohibition of discimination referred to in the second part of Article 10(3) would be 17. However, that argument does not seem infringed. to me to be convincing. The absence of discrimination must, in my opinion, be judged in relation to the requirements imposed on national workers by law or regulation since otherwise objective treatment of each case is no longer 19. The following additional arguments can adequately guaranteed. Thus housing also be invoked in support of the view that cannot be let or used in Berlin unless for 2 members of the family may not be deported each person there is a habitable area of 9 m from a Member State if their housing and for each child under six years old a conditions become inadequate after entry habitable area of 6 m 2 (Law of 6 March into the country. 1973). In Hamburg the habitable area must be at least 10 m 2per person (Law of 8 March 1982). In Bremen the criterion is a volume of 7.5 m 3per child of school age and 15 m 3for anyone older (Law of 26 July 1910). The laws of the Länder also include 20. First of all, it is quite clear from the rules on health conditions. I consider that preparatory documents produced by the normal housing within the meaning of Commission, in particular the minutes of the Article 10(3) is housing which at least meets 44th meeting of the Council of 29 July the criteria thus set out by the legislation 1968, p. 32 (Document No 1297/68 (P. V. applicable to the place of residence. It is in Cons. 21) final), that whereas the condition the light of those rules that the competent concerning 'normal housing' was introduced

21. Moreover, in its judgment in Joined Cases 115 and 116/81 Adoui and 23. It follows incontestably from the Comuaille, 5the Court made the following foregoing that a Member State which does remarks concerning penalties that may be not have rules in respect of housing imposed on foreigners on grounds of public conditions cannot subject migrant workers policy: alone to such rules, even at the time when members of the family first take up residence. 'The reservations contained in Articles 48 and 56 of the EEC Treaty permit Member States to adopt, with respect to the nationals of other Member States and on the grounds 24. It also follows that a Member State specified in those provisions, in particular which has such rules but adopts no grounds justified by the requirements of repressive measures against its own nationals public policy, measures which they cannot who do not comply with them cannot adopt apply to their own nationals, inasmuch as repressive measures against migrant workers they have no authority to expel the latter and their families. from the national territory or to deny them access thereto. Although that difference of treatment, which bears upon the nature of the measures available, must therefore be 25. In my opinion it further follows that a allowed, it must nevertheless be stressed Member State which adopts repressive that, in a Member State, the authority measures against its own nationals never­ empowered to adopt such measures must theless cannot go so far as to withdraw the not base the exercise of its powers on right of residence from members of a assessments of certain conduct which would migrant worker's family if it should prove have the effect of applying an arbitrary that the housing that that migrant worker distinction to the detriment of nationals of has available becomes inadequate during the other Member States.' family's residence together.

27. The Court has already had occasion to formality, but deportation of a member of state firmly that 'among the penalties the family runs directly counter to the very attaching to a failure to comply with the objective of Article 10 of Regulation No prescribed declaration and registration 1612/68, which is to contribute to the elimi­ formalities, deportation, in relation to nation of obstacles to the mobility of persons protected by Community law, is workers, in particular by permitting them to certainly incompatible with the provisions of be joined by their family: instead of the Treaty since, as the Court has already promoting the reuniting of families it would confirmed in other cases, such a measure put an end to it. It is hardly conceivable that negates the very right conferred and a Member State could impose on its own guaranteed by the Treaty'. 6 In its judgment nationals in a case of overcrowded housing of 3 July 1980 in Case 157/79 Regina v Pieck [1980] ECR 2171, the Court also a penalty which consisted in separating the ruled out imprisonment as a penalty for occupants, if they are members of the same failure to comply with the formalities family. In several Member States, including required as proof of the right of residence the Federal Republic of Germany, that of a worker enjoying the protection of would probably be incompatible with Community law (paragraphs 18 to 20). In constitutional or legislative provisions. its judgment of 14 July 1977 in Case 8/77 Sagulo, Brenca and Bakhouche [1977] ECR 1495, the Court declared in a more general way:

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OPINION OF MR MISCHO —CASE 249/86

35. In addition, the Commission considers Regulation No 1612/68 there was no defi­ Ethat there is ipso facto an infringement of nition of the scope of that concept. Article 48 of the Treaty. The German Government contends, on the other hand, that that allegation lacks foundation since Article 48 does not confer on members of the family of a migrant worker any 'primary' or 'personal' right to freedom of movement. 38. Moreover, in various judgments the Court has held that members of a worker's family within the meaning of Article 10 of Regulation No 1612/68 'qualify only indi­ 36. That question is not easily dealt with. rectly' 8 for the rights of freedom of From one point of view the opportunity movement accorded by Article 48 of the granted to members of the family of coming Treaty to the worker and that the rights to live with the worker helps to achieve the granted to them by Articles 10 and 11 are objectives of Article 48 by eliminating only 'secondary' rights, in that they are obstacles preventing the exercise by workers linked to the rights which the worker enjoys of the right to move freely in the territory under Article 48 of the Treaty and Article 1 of the other Member States and to reside et seq. of Regulation No 1612/68. 9 there in order to work. The right of the family of a worker to install themselves with him on the territory of another Member State corresponds to the right of the worker himself to be joined by his family (see in this connection the fifth recital in the preamble to Regulation No 1612/68). In a certain 39. In addition, at paragraph 31 of the sense it is therefore a right accorded to the judgment of 8 April 1976 in Case 48/75 worker himself as much as to his family. Royer [1976] ECR 497, the Court estab­ lished that:

In my opinion the rights accorded to provisions of that regulation, limiting their members of the family fall under that latter scope to what is 'required' to bring about category. freedom of movement for workers. The Court's case-law, in particular with regard 40. Finally, the Commission's reasoning to the concept of 'social advantages' as according to which any breach of Regu­ referred to in Article 7(2) of the regulation, lation No 1612/68 involves ipso facto a runs directly counter to that. I do not breach of Article 48 of the EEC Treaty on believe that it would be in anyone's interest, the ground that that regulation is based on and certainly not the Commission's, to seek Article49, which provides for the 'measures to make the Court diverge from that broad required to bring about, by progressive interpretation, and I therefore consider that stages, freedom of movement for workers as it should not be held that there has been a defined in Article 48', should logically lead failure to comply with Article 48 of the to a restrictive interpretation of the EEC Treaty.

Conclusion

41. On the basis of the foregoing considerations I propose that the Court should hold that by adopting and maintaining in force legislative provisions to the effect that the extension of a residence permit for members of the family of a migrant worker is to be refused and the permit's duration reduced if the housing available to the worker for his family is no longer judged appropriate under the criteria applicable in the place of residence, the Federal Republic of Germany has failed to fulfil its obligations under Article 10(3) of Regulation (EEC) No 1612/68 of the Council.