C-340/97

NAZLI

OPINION OF ADVOCATE GENERAL MISCHO d e l i v e r e d o n 8 July 1999 *

1 . T h e Bayerisches Verwaltungsgericlit which provides, in the third indent of Ansbach (Bavarian Administrative Court, paragraph 1, that a Turkish worker duly Ansbach) (Germany) has pending before it registered as belonging to the labour force an appeal brought by a Turkish national, of a Member State is to enjoy free access in Mr Nazli, and his minor children against a that Member State to any paid employment decision taken by the competent adminis- of his choice, after four years of legal trative authorities ordering his expulsion e m p l o y m e n t . M o r e o v e r , in 1989 he from Germany. obtained a work permit of unlimited dura- tion.

2. The national court has found no grounds, either in German law or in the 4. In 1992 he was implicated in a case of European Convention on Establishment, to drug trafficking, for which lie was detained justify setting aside that decision, but is pending trial from 1 I December 1992 to uncertain as to whether the appeal may be 21 January 1994 and then sentenced, by a well-founded under Community law, and judgment of the Landesgericht Hamburg of in particular under Decision No 1/80 of the 20 April 1994 against which he did not Association Council (set up by the Associa- appeal, to a suspended term of imprison- tion Agreement between the European ment of 21 months. Economic Community and Turkey) of 19 September 1980 on the development of the Association (hereinafter 'Decision No 1/80').

5. Since 2 January 1995 he has been in permanent paid employment again. In the meantime, however, his residence permit 3. Mr Nazli has lived in Germany since expired on 31 December 1994 and, despite 1978, and from 1979 to 1989 was in an administrative appeal, he was unable, continuous paid employment, with appro- because of his criminal record, to obtain an priate work and residence permits, for the extension of that permit since the adminis- same employer. He was therefore entitled trative authorities took the view that to rely on Article 6 of Decision No 1/80, grounds of public policy, for which Deci- sion No 1/80 expressly provides in Arti- cle 14(1), precluded his residence in Ger- * Original language: French. many.

10. On account of those uncertainties, the national court has submitted the following 7. Secondly, the criminal court set out fully, two questions: in the grounds of its judgment, the reasons which led it to impose on Mr Nazli a sentence which appeared light in view of the seriousness of the offence in which he had been implicated, a transaction invol- ving 1 500 grams of heroin. ' 1 . Does a Turkish worker, who has achieved the legal status conferred by the third indent of Article 6(1) of Decision No 1/80 of the Association Council (set up by the Association Agreement between the European Eco- 8. In particular, the court took into nomic Community and Turkey) of account, in fixing the length of the sentence 19 September 1980 on the develop- and suspending it, the fact that Mr Nazli ment of the Association, forfeit that had shown sincere remorse and was dis- status subsequently if he is detained on mayed by what he had done and its strong suspicion of having committed a consequences, that the role which he had crime for which he is ultimately con- played in the commission of the offence victed and given a suspended prison had been minor, that he had learnt all the sentence? necessary lessons and was unlikely to re- offend and, finally, that he was socially well integrated.

2. If not:

9. According to the court making the reference, it is clear from those findings made by the criminal court that the deci- sion ordering expulsion, of which Mr Nazli is the subject, cannot be justified on special Is the expulsion of a Turkish worker in preventive grounds, which means that it such circumstances solely on general can be justified only on general preventive preventive grounds, that is to say as a grounds. However, the permissibility of deterrent to other aliens, compatible I-960

13. During the oral procedure, the plaintiff in the main proceedings, referring to the position adopted by the French Govern- ment and the Commission in their written observations, maintained that a worker 12. I shall begin by considering the first who has acquired the right in question subquestion, making it clear that I am may not be deprived of it on any ground merely putting myself in the position of the other than prejudice to the requirements of court making the reference, which is public policy. required to rule on Mr Nazli's appeal, that is to say the situation in which a Turkish worker, at the time of his arrest, is entitled to rely on the third indent of Article 6(1) of Decision No 1/80, which is worded as follows: 14. I do not believe that to be the case. As I have argued in detail in my Opinion of 3 June 1999 in the Ergat case (C-329/97), which is currently pending before the Court, I take the view that, even after four years of legal employment in the host Member State, a Turkish worker docs not 'Subject to Article 7 on free access to thereby acquire a right of residence which employment for members of his family, a is unconditional and of unlimited duration.

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15. That conclusion is drawn, firstly, from made subject to regulations to be drawn up the Bozkurt judgment, 1in which the Court by the Commission, with the result that the stated that: rules applicable under Article 48 cannot simply be transposed to Turkish workers'.

Furthermore, as far as Community workers 17. It follows, by contrary inference from are concerned, the conditions under which that judgment, that a worker who remains, such a right to remain may be exercised beyond a reasonable period, in a situation were, under Article 48(3)(d) of the Treaty, of voluntary unemployment forfeits his right of residence.

1 — Case C-434/93 [1995] ECR I-1475, paragraphs 39 to 41. 2 — Emphasis added. 3 — Case C-171/95 [1997] ECR I-329.

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20. In the Bozkurt judgment, at paragraph 38, the Court made it clear that the paragraph in question applies 'particularly' in calculating the length of the period of legal employment required in order to 2 3 . The worker is no longer in paid acquire the right of free access to any paid employment, but he retains the right of employment. It does not, therefore, apply access to employment which he had only to that calculation, but also when it is acquired by virtue of his employment prior a question of preserving that right once it to the event which, against his will, exclu- has been acquired. ded him from the labour force.

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24. It has manifestly been sought to mini- lose rights which he has acquired as regards mise the consequences for a Turkish worker employment and, as the corollary of that, of events regarded as hazards of life by not residence, unless it is established that he has allowing forfeiture of the right to work to definitively left the labour force of the host complicate still further the situation, by Member State. definition difficult, of a person who loses his job or who falls ill without any prospect of a speedy recovery.

29. That leaving must be objectively assessed, with the result that both a worker who has voluntarily given up his job in 25. Clearly, a Turkish worker who, like Mr order to return to live in Turkey and one Nazli, is detained pending trial is not in any who, in the language of the Bozkurt of the situations provided for by Arti- judgment, has reached retirement age or cle 6(2) of Decision No 1/80. been the victim of an accident at work which has caused him to become totally and permanently incapacitated for work 4 must be considered to have left that labour force.

32. In order to answer this question, it is necessary to take into account the very 36. Although that is true, it does not alter nature of detention pending trial and to the fact that, depending on the require- refer to fundamental principles of criminal ments of the investigation, the person law and criminal procedure. concerned could, at any time during his imprisonment by way of detention pending trial, have been released and thus been able to take up his employment again.

39. In a society which proclaims its com- 42. Those considerations seem to me suffi- mitment to human rights and fundamental cient in themselves to show that detention freedoms, such loss of liberty must be pending trial cannot mean expulsion from limited to a strict minimum. Moreover, the labour force. However, there is another that is certainly how detention pending reason which absolutely precludes such an trial is envisaged by the legislatures of the interpretation, namely, the presumption of various Member States. It is not possible innocence, which is enshrined in Arti- here to undertake a comparative examina- cle 6(2) of the Convention for the Protec- tion of that system in the fifteen Member tion of Human Rights and Fundamental States, but it should be borne in mind that, Freedoms. as a general rule, the existence of serious evidence against an accused person is not, in itself, sufficient ground for detaining a suspect pending trial. Imprisonment must be genuinely necessary for the purposes of the investigation, in order, for example, to prevent pressure on witnesses or contact 4 3 . That presumption implies that, until between co-accused persons, or where there the day when the court having jurisdiction, are serious risks to the requirements of by a decision constituting res judicata, public policy, such as that posed by the determines whether he is guilty, an accused reappearance of the presumed kidnapper in person is presumed innocent and, accord- a neighbourhood where a child has been ingly, may not be punished for offences abducted. which he is suspected of committing.

47. I thus come to the second issue raised by the national court's first question, namely, that of the possible consequences for those same rights of a suspended prison 51. To exclude a Turkish worker in that sentence. way would be in flagrant conflict with the possibility of reintegration, which the crim- inal court intended to leave open because it did not believe it to be unrealistic. It should also be noted that, in certain types of case, where suspension has attached to it condi- tions imposed on the convicted person in order to give the process of reintegration 48. This seems to me to necessitate only the maximum prospect of success, the some very brief arguments. Suspension of requirement to engage in legal employment the prison sentence allows the convicted is invariably one of those conditions. person to remain free or, if he had been detained pending trial, to regain his free- dom and therefore to engage in paid employment. 52. To deprive a Turkish worker of the possibility of satisfying that requirement would run directly counter to the treatment which the criminal court had deemed it appropriate to apply to the offender and would, moreover, in those circumstances, 49. The very objective of suspension is to lead to the revocation of suspension, which prevent the convicted person from becom- is provided for in all cases where the ing cut off from society by his imprison- convicted person fails to comply with the ment and to enable him to retain, or to requirements imposed on him. resume, a completely normal lifestyle, which includes the pursuit of an occupa- tion. It would go directly against that objective to combine the imposition on a Turkish worker of a suspended prison 53. The unavoidable conclusion is there- sentence with the loss of the right to engage fore that, just as with detention pending in paid employment. trial, even though for different reasons, the

Whether a Turkish worker may be expelled 58. Article 3 of Council Directive 64/221/ on general preventive grounds EEC of 25 February 1964 on the coordina- tion of special measures concerning the movement and residence of foreign nation- als which are justified on grounds of public policy, public security or public health 5 55. As noted above, the court making the provides, in paragraphs 1 and 2, that reference takes the view that, in the light of 'Measures taken on grounds of public the grounds of the judgment sentencing Mr policy or of public security shall be based Nazli to a suspended prison term of 21 exclusively on the personal conduct of the months, it is impossible to find any special individual concerned. Previous criminal preventive grounds on which to justify his convictions shall not in themselves consti- expulsion, with the result that the expul- tute grounds for the taking of such mea- sion must be regarded as having been sures'. That article has been interpreted by decided on general preventive grounds. the Court as '[preventing] the deportation of a national of a Member State if such deportation is ordered for the purpose of deterring other aliens, that is, if it is based ... on reasons of a "general preventive nat- ure"'. 6 56. The question before us is therefore whether Decision No 1/80 authorises 5 — OJ, English Special Edition 1963-64, p. 117. expulsion based on such grounds. It is clear 6 — Case 67/74 Bonsignore [1975] ECR 297, paragraph 7.

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64. Although the prohibition of measures ordering expulsion on general preventive grounds is indeed laid clown only by 61. According to the first view, the require- Article 3 of Directive 64/221, that prohibi- ments of public policy, as recognised by tion can equally be inferred from a reason- Article 14 of Decision No 1/80, must be able interpretation of Article 48 of the construed in the conventional manner, that Treaty and can therefore be extended to is to say very broadly, and therefore include Turkish workers, as a principle enshrined in general prevention. The fact that Article 12 Article 48, notwithstanding the absence in of the Association Agreement states that their case of any provision analogous to 'the Contracting Parties agree to be guided Article 3 of Directive 64/221. by Articles 48, 49 and 50 of the Treaty establishing the Community for the pur- pose of progressively securing freedom of movement for workers between them' does not in any way preclude that interpretation. 65. In support of that view, reference is made by Mr Nazli to the Royer judgment, 8 in which the Court held that the exception contained in Article 48(3) of the Treaty must be regarded as providing the possibi- 62. Apart from the fact that that provision lity, in individual cases where there is is programmatic in nature, the prohibition sufficient justification, of imposing restric- of recourse to expulsion on general pre- ventive grounds cannot be derived from Article 48 of the EC Treaty (now, after 7 — To the same effect, see Tetik, cited above, paragraphs 20 and 28; Case C-36/96 G ü n a y d m [1997] ECR I - 5 1 4 3 , amendment, Article 39 EC) and was intro- para g raph 2 1 ; Case C-98/96 Ertanir [1997] ECR I - 5 1 7 9 , paragraph 2 1 ; and Case C-1/97 Birden [1998] ECR I-7747, duced, for Community nationals only, by paragraph 23. Directive 64/221. 8 — Case '48/75 [1976] ECR497, paragraph 29.

71. Thus it would not be reasonable for a single act of selling narcotic drugs always to be regarded, in the case of a Turkish worker, as prejudicial to the requirements of public policy, whereas a Community 68. It should be borne in mind in this worker could carry out several such acts connection that the right of a Turkish before causing the same prejudice. worker to enter the territory of a Member State can be made subject to a genuine residence authorisation, which, in order to 10 — See the judgments cited in paragraphs 56 to 59 of the give rise to employment rights, must not Birden judgment, cited above. 11 — See Article 6 of Council Directive 68/360/EEC of 15 Octo- ber 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, English Special Edition 1968 9 — Case 30/77 [1977] ECR 1999, paragraph 35. (II), p. 485).

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72. Since I can find no objective factors as possible, in defining the status of Turkish which would allow the requirements of workers, by the status conferred on Com- public policy to be defined differently munity workers by Article 48 of the Treaty. according to the precise status of the person Directive 64/221 clarifies the implications concerned, I am of the opinion that the of that article rather than supplementing it. principle which should be applied is that of the same legal classification for the same offence.

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Conclusions

78. Finally, I propose that the Court give the following answers to the questions referred to it by the national court:

(1) A Turkish worker who has achieved the legal status conferred by Article 6(1) of Decision No 1/80 of the Association Council (set up by the Association Agreement between the European Economic Community and Turkey) of 19 September 1980 on the development of the Association does not subsequently forfeit that status if he is detained on strong suspicion of having committed a crime for which he is ultimately convicted and given a suspended prison sentence.

(2) The expulsion of a Turkish worker in such circumstances solely on general preventive grounds, that is to say as a deterrent to other aliens, is not compatible with Article 14(1) of Decision No 1/80.