C-351/95

The relevant Community rules 3. Article 36 of the Additional Protocol to the Association Agreement of 23 Novem- ber 1970 2 states that the Council of Associa- tion is to decide on the rules necessary to secure freedom of movement for workers between Member States of the Community and Turkey in accordance with the principles set out in Article 12 of the Association 2. Under Article 2(1) of the Association Agreement. Agreement between the European Economic Community and Turkey, ' the aim of that Agreement is 'to promote the continuous and balanced strengthening of trade and economic relations between the Parties, while taking full account of the need to ensure an accelerated development of the Turkish economy and to improve the level of employment and the living conditions of the Turkish people'. 4. Pursuant thereto, the Association Council adopted Decision N o 1/80 of 19 September * Original language: Danish. 1980, which entered into force on 1 July 1 — Agreement creating an Association between the European Economic Community and Turkey, signed on 12 September 1963 in Ankara, 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 — OJ 1973 C 113, p. 1.

I-2136

KADIMAN v FREISTAAT BAYERN

1980. 3 The following provisions are relevant Article 11 to this case:

Nationals of the Member States duly regis- tered as belonging to the labour force in tur- 'Article 7 key, and members of their families who have been authorized to join them, shall enjoy in that country the rights and advantages referred to in [Article] ... 7 ... if they meet the conditions laid down in [that Article].'

7. O n 11 September 1991 the Ruhpolding 10. By decision of 4 May 1992 the Landrat- authorities informed the Landratsamt Traun- samt Traunstein withdrew the wife's resi- stein that, according to information supplied dence permit, on the ground that she was not by the husband on 7 September 1991, his living with the husband. The validity of the wife had returned to Turkey. When the Lan- residence permit terminated with the notifi- dratsamt Traunstein requested further cation of the decision, and she was required details, the husband stated on 30 September to leave the country, under threat of expul- 1991 that his wife had returned to Turkey, sion. By decision of 21 May 1992 that that for approximately five months they had decision was, however, cancelled since, hav- not been living together and that he had ing moved to Bad Reichenhall, she then came begun divorce proceedings in Turkey. within the jurisdiction of the Landratsamt Berchtesgadener Land.

I-2138

KADIMAN v FREISTAAT BAYERN

14 May 1993, with effect from notification of 16. By decision of 13 January 1995 the Lan- the decision, which took place on 26 January dratsamt Berchtesgadener Land confirmed 1993. O n 2 February 1993 the wife lodged an the decision to withdraw the wife's residence appeal against that decision. At a hearing in permit and required her to leave the country. connection with the appeal, the husband Among the grounds given was that she had declared that he was willing to resume family no entitlement under the provisions of life with his wife. On 13 May 1993 the Lan- Decision N o 1/80. dratsamt Berchtesgadener Land issued a resi- dence permit to the wife, which was valid until 14 May 1994.

17. Finally, before the Bayerisches Verwal- 13. At a hearing on 5 January 1993 the wife tungsgericht München, the wife sought admitted that the couple's stated willingness annulment of the decision of 13 January to resume married life had been purely for 1995, on the basis that under the first para- the benefit of the authorities. By decision of graph of Article 7 of Decision N o 1/80 she 13 October 1993 the Landratsamt Berchtes- was entitled to a residence permit. gadener Land withdrew the wife's residence permit with effect from notification of the decision, and required her to leave the coun- try.

(3) Is a voluntary or forced intermediate stay of five months in Turkey to be counted towards the period of three years' legal residence within the mean- ing of the first indent of the first para- graph of Article 7 of Decision N o 1/80?' Procedure before the Court of Justice

19. It appears from the order for reference that the Bayerisches Verwaltungsgericht München found that the wife's stay in Ger- many was interrupted from September 1991 21. The wife claims that she is still married to February 1992, when she certainly was to her husband, that she has been resident in entitled to be resident in Germany but was Germany for more than three years and had de facto in Turkey. In that connection the a right of residence there. The conditions for court found that during their holiday deriving entitlement from the first indent of together, the husband had taken her passport the first paragraph of Article 7 are therefore and in that way had prevented her from satisfied. returning to Germany.

20. The national court further found that the wife's stay in Germany was not lawful dur- 22. The German and Netherlands Govern- ing the period in respect of which her resi- ments state that a Member State may require dence permit had been withdrawn, in other a member of a Turkish worker's family who words from 26 January 1993 to 14 May 1993. obtains a residence permit for the purpose of In consequence, in the view of the national reuniting the family actually to live with the court, she could only be regarded as having Turkish worker in question in order to been legally resident for at least three years derive entitlement from the first indent of provided it was possible to add together the the first paragraph of Article 7.

23. The Commission states that, before any 1990 until September 1991, when the hus- reply is given to the questions submitted by band discontinued their life together before the national court, consideration should first the period of at least three years referred to be given to whether there is a requirement in the first indent of the first paragraph of that the family should live together during Article 7 had expired. the period of three years referred to in the provision. In the Commission's view, it is not contrary to the first indent of paragraph 1 of Article 7 for a Member State to require that the family member and the Turkish 26. The first indent of the first paragraph of worker should live together as a family dur- Article 7 must be regarded as having direct ing the three years referred to in the provi- effect. 4 O n its wording the provision con- sion. cerns solely entitlement to take up employ- ment, but it follows from the Court's consis- tent case-law that in connection with that right to take up employment there is a derived right to residence. 5 24. The French Government states that it is a prerequisite of entitlement under the first indent of paragraph 1 of Article 7 of Decision N o 1/80 that in the said three-year period the parties should have lived together 27. There are certain discrepancies between as a family. the various language versions of the first indent of the first paragraph of Article 7 of Decision N o 1/80. The wording of, for example, the Danish version of the first indent of the first paragraph of Article 7 Analysis could thus give rise to doubt as to its inter- pretation with regard to whether the family is required to live together in the specified period as a precondition for obtaining entitlement to take up employment as laid 25. By its first question, the national court down in the provision. The provision states seeks essentially to obtain the Court's view that the members of the family 'who have as to whether, under the first indent of the been authorized to join him', but in Danish: first paragraph of Article 7 of Decision N o 'såfremt de har fået tilladelse til at flytte til 1/80, there is a requirement that the family den pågældende medlemsstat' — literally, in live together in the period referred to in the English, 'provided they have been autho- provision before there is any right to take up rized to move to the Member State in ques- employment on the basis of that provision. tion', are to be entitled to take up employ- The national court expresses that as a ques- ment 'after they have been legally resident tion whether, under the provision, there is a for at least three years in that Member State' requirement 'that the family must still be liv- (in Danish: 'efter at have haft lovlig bopæl ing together at the time when the other con- dér i mindst tre år' — literally, in English ditions are fulfilled'. That formulation of the question must be viewed in relation to the fact that the married couple in the case before the national court de facto lived 4 — See Case C-192/89 Sevince [1990] ECR 1-3461 and Case C-355/93 Eroglu [1994] ECR 1-5113. together as a married couple from 17 March 5 — See footnote 4.

28. That lack of clarity in certain language versions must, however be compared with Article 11 of the Decision, which deals with 30. The actual considerations underlying the corresponding question of the right to paragraph 1 of Article 7 too suggest that the take up employment in Turkey of members right to take up employment is conditional of the family of nationals of the Member on the family living together in the period States who are employed in Turkey. Article referred to. The right conferred on the per- 11 provides expressly that members of the sons concerned by the provision is given to families of nationals of the Member States them precisely in their capacity as family who are employed in Turkey are only to members, and the aim of the provision is obtain the same right to take up employment thus to ensure that the members of the fam- in Turkey provided, in Danish, they 'bor ily of Turkish workers in the Community sammen med dem' (live with them, i. e. the authorized by a Member State to reunite the workers). If it is a precondition for a mem- family, acquire after a certain time the right ber of the family of a national of a Member to respond to offers of employment. At the State to acquire certain rights in Turkey that same time there is a requirement that a mar- the member of the family should live -with ried couple should live under the same roof, the worker in Turkey, from the point of view which is necessary to prevent circumvention of general reciprocity it is natural to con- of the halt to immigration by means of sham clude that the same requirement must apply marriages. when the question arises of the conditions under which members of the family of a Turkish national working in a Member State obtain the same rights in that Member State.

Conclusion

34. In the light of the foregoing, I w o u l d p r o p o s e that the C o u r t answer the q u e s - tions referred to it as follows:

T h e first indent of the first p a r a g r a p h of Article 7 of Decision N o 1/80 of 19 Sep- t e m b e r 1980 on the d e v e l o p m e n t of the Association, adopted b y the Association C o u n c i l established b y the Association A g r e e m e n t b e t w e e n the E u r o p e a n E c o n - o m i c C o m m u n i t y and Turkey, signed in A n k a r a on 12 September 1963 and con- cluded, approved and confirmed o n behalf of the C o m m u n i t y b y C o u n c i l Decision 6 4 / 7 3 2 / E E C of 23 D e c e m b e r 1963, m u s t be interpreted to the effect t h a t a m e m b e r of the family of a Turkish w o r k e r d u l y registered as belonging to the l a b o u r force in a M e m b e r State is entitled t o r e s p o n d t o any offer of e m p l o y m e n t o n l y if he or she has been living as a legal resident w i t h the w o r k e r in question for at least three years.

I-2143