C-65/98

EYÜP

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 18 November 1999 *

1. In bringing these proceedings, the Ver- tions of the Turkish people' (see Arti- waltungsgerichtshof (Higher Administra- cle 2(1)). tive Court, Vienna) is requesting an inter- pretation of the first paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council of 19 September 1980 on the development of the Association (hereinafter, respectively: 'the Decision' and 'the Association Council'), 1 on the In accordance with Article 12 of the Agree- right to access to employment for family ment, the parties agree '(...) to be guided by members of Turkish workers. 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'.

I — Relevant Community legislation Under Article 36 of the Additional Protocol to the Agreement of 23 December 1970, 3 the Council of Association is to decide on the rules necessary to establish by progres- 2. The aim of the Association Agreement sive stages the free movement of workers between the EEC and Turkey (hereinafter: between Member States of the Community 'the Agreement') 2is 'to promote the con- and Turkey in accordance with the princi- tinuous and balanced strengthening of ples set out in Article 12 of the Agreement. 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 condi-

3. Pursuant to Article 36, the Association * Original language: Italian. Council adopted the Decision, which came 1 — The Decision has not been published. 2 — Agreement establishing an Association between the Eur- into force on 1 July 1980. Under the first opean Economic Community and Turkey, signed at Ankara on 12 September 1963 and concluded on behalf of the Community by Council Decision 67/732/EEC of 23 Decem- ber 1963 (OJ 1973 C 113, p. 2). 3 — OJ 1972 L 293, p. 4.

— shall be entitled — subject to the priority to be given to workers of Member States of the Community — 5. On 23 April 1997, Mrs Eyüp, the appli- to respond to any offer of employment cant in the main action, applied to the after they have been legally resident for Austrian authorities for a certificate that at least three years in that Member she fulfilled the requirements under the State; second indent of the first paragraph of Article 7 of the Decision. The request was dismissed by decision of 24 September 1997. Various grounds were given for the refusal: that she did not satisfy the mini- — shall enjoy free access to any paid mum residence requirement laid down by employment of their choice provided the Decision; that a 'cohabitee' was neither they have been legally resident there for a 'spouse' nor a 'family member' of a at least five years'. Turkish worker; that account could there- fore not be taken of the period of more than seven years between the divorce and the second marriage; and that the divorce had ended the validity of the residence period (about two years) of the first marriage, so that that period could not be I I— The facts aggregated with the period since the second marriage (about four years).

4. On 23 September 1983 Mrs Eyüp, a Turkish citizen, married in Lauterach (Aus- tria) a Turkish worker who was duly registered as belonging to the labour force in Austria, and thereby obtained a resi- dence permit for Austria. By a judgment of 6. In challenging the decision to dismiss the a Turkish court of 13 November 1985, the application, Mrs Eyüp also applied to the marriage was legally dissolved. Mr and Verwaltungsgericht for an emergency Mrs Eyüp, however, continued to live declaration of her right to take up paid

'(1) Is the concept of members of the family in the first paragraph of Article 7 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association (4) Does Community law' require that the between the European Economic Com­ (directly effective) rights deriving from munity and Turkey to be interpreted as Articles 6 and 7 of Decision No 1/80 in meaning that the partner (in a relation­ a Member State for the group of people ship resembling marriage with no for­ designated therein be safeguarded by mal matrimonial bond) of a Turkish providing provisional legal protection worker also meets the relevant objec­ in certain cases in the form of positive tive requirements? (prescriptive) interim measures?

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OPINION OF MR LA PERGOLA — CASE C-65/98

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EYÜP

questions in relation to any action for when interpreting the first paragraph of damages brought by Mrs Eyüp against the Article 7 of the Decision, account must in Austrian administration. 4 principle be taken of the Treaty rules on the free movement of workers. That is estab- lished by Article 12 of the Agreement, to which the Court has referred on a number of occasions in order to interpret the provisions of the Decision on social issues, including those which are the subject of the first three questions here. 5Clearly, second- ary legislation adopted in order to imple- (1) First question ment the Treaty, namely Council Regula- tion (EEC) No 1612/68 of 15 October 1968 on the free movement of workers within the Community ('the Regulation'), is also relevant. 6 11. In the first question, the referring court asks whether the expression 'members of the family' contained in the first paragraph of Article 7 of the Decision includes the extra-marital cohabitee of a Turkish worker. If that were so, then for the purposes of calculating the time require- ments laid down by that provision, a cohabitee would be classed in the same category as a person with whom the Turkish worker had a formal matrimonial bond; thus, in this case, the entire period of cohabitation of Mr and Mrs Eyüp between 1983 (date of the first marriage) and 1997 13. Under Article 10 of the Regulation, the (date of the application for a work permit) 'spouse' appears amongst those members of could be taken into account. the family of the migrant worker who have the right to settle with him in the host Member State [Article 10(1 )(a)]. In its judgment in Reed, 7in 1986, the Court held that 'in the absence of any indication of a general social development [in the Member States] which would justify a 12. As the Austrian, United Kingdom and broad construction, and in the absence of German Governments, and the Commis- any indication to the contrary in the sion, have pointed out in these proceedings, Regulation, it must be held that the term

16. The case-law of the Court confirms that the Convention may justifiably be 15. Mrs Eyüp has, it is true, provided no referred to as an aid to the interpretation concrete information on any 'general social of the first paragraph of Article 7. When development' within the Community which examining Article 10(3) of the Regula- might in effect justify a broader interpreta- tion, 9 which is closely linked to Arti- tion of the expression 'family member', and cle 10(1), 10 the full Court ruled that '(it) thus of the word 'spouse', than that given must also be interpreted in the light of the by the Court in Reed. She does, however, requirement of respect for family life set put forward a 'progressive' interpretation out in Article 8 of the Convention for the of the first paragraph of Article 7, whereby Protection of Human Rights and Funda- the 'family' of a migrant Turkish worker mental Freedoms'. 11 That criterion for includes a cohabitee. Mrs Eyüp points out interpretation appears to be in line with in particular that a number of years have the Court's settled case-law that 'funda- passed since the Regulation was adopted mental rights form an integral part of the general principles of law whose observance 8 — Paragraph 15 (emphasis added). In Reed, the Court made a ruling on the meaning of the word 'spouse' where it appears in Article 10 of the Regulation, that is to say, concerning 9 — Under which, '[f]or the purposes of paragraphs 1 and 2, the residence rights of members of a migrant worker's family. In worker must have available for his family housing con- this case we are concerned instead with their right to take up sidered as normal for national workers in the region where employment in the host Member State. This distinction does he is employed (...)'. not appear to preclude a similar solution as there is a further provision — in addition to Article 10 of the Regulation and 10 — As I have stated earlier, any interpretation of the provisions similar to the first paragraph of Article 7 of the Decision — on social issues of the Decision should be based on Article 11. Article 11 provides for the right of family Article 10 and the other articles of the Regulation [see members of the migrant worker to work in the host State Article 12 of the Agreement (see paragraph 12 of this and mentions, in particular, 'the spouse' (see also paragraph Opinion) and the case-law cited in footnote 5]. 17 of this Opinion). 11 — Case 249/86 Commission v Germany [1989] ECR 1263, paragraph 10.

17. In response to Mrs Eyüp's reference to the Convention, the United Kingdom Gov- ernment has argued that, whilst the Con- vention is concerned with 'civil' rights, the first paragraph of Article 7 of the Decision is concerned with a right of an 'economic' 18. According to what may now be regar- nature. Although that observation is cor- ded as established case-law of the rect, it does not permit the applicant's argument to be dismissed. That 'economic' right has the merit of constituting added 15 — Paragraph 36 (emphasis added). Also in Kadiman it is value over and above the civil and social stated that the purpose of the first paragraph of Article 7 'is to favour employment and residence of Turkish workers protection of the family unit under Arti- duly registered as belonging to the labour force of a Member State by ensuring that their family links are cle 8 of the Convention. As the Court held maintained there' (paragraph 34; emphasis added). In Commission v Germany (see footnote 11), the Court observed that '[i]t is apparent from the provisions of the regulation, taken as a whole, that in order to facilitate the movement of members of workers' families the Council 12 — Opinion 2/94 of 28 March 1996 (ECR I-1759, paragraph took into account, first, the importance for the worker, 33). Amongst the many judgments of the Court, see, for from a human point of view, of having his entire family example, those in Case 44/79 Hauer v Rheinland Pfalz with him (...)' (paragraph 11; emphasis added). As I (1979] ECR 3727, paragraph 17; Case 63/83 Regina v pointed out earlier (see note 8), the provisions 'taken as a Kirk [1984] ECR 2689, paragraph 22; Case C-404/92 P X whole' include not only a provision which ensures the v Commission [1994] ECR I-4737, paragraph 17; Case worker's family is kept together in the host State (see C-415/93 ASBL v Bosman [1995] ECR I-4921, paragraph A r t i c l e 10 of the Regulation), but also one which provides 79; Case C-199/92 P Hüls v Commission [1999] ECR for the right of family members to undertake work (see I-4287, paragraphs 149 and 150, and Case C-235/92 P Article 11 of the Regulation). Montecatini v Commission [1999] (ECR I-4539, para- graph 37). 16 — Opinion of 9 July 1998 in Case C-210/97 Akman v Oberkreisdirektor [1998] ECR I-7519; on the same issue 13 — Opinion 2/94, paragraph 33. see paragraphs 3 7 and 4 3 ; see also Case C-355/93 Eroglu v 14 — Opinion 2/94, paragraph 34. Baden-Württemberg [1994] ECR I-5113, paragraph 22.

ECHR, 17 the expression 'family', within 19. Regarding the possible extension of the the meaning of Article 8(1) of the Con- scope of the first paragraph of Article 7 to vention, goes beyond a group of persons the cohabitee of a migrant worker, on the linked by a formal bond (for example, by basis of the European Convention on marriage or the status of a legitimate Human Rights, the United Kingdom Gov- child). 18 According to the ECHR, Arti- ernment has urged caution and argued that cle 8(1) does not distinguish between the due attention should be given to balancing 'natural' family and the 'legitimate' family. the interests of the Turkish worker and That court has repeatedly equated de facto members of his family with those of the population of the host Member State. family relations to the concept of the

18 December 1986, Johnston, Series A, no. 112, para- graphs 55 and 56 (the ruling declared that Article 8 of the Convention was applicable to a family made up of a child and its unmarried parents who had been living together for 15 years, one of whom was still bound in marriage to a third person with whom he had had three children); 21 June 1988, Berrehab, Series A, no. 138, paragraph 21 20.

Convention). 19 — In Johnston the fact that the couple had lived together for given measure by the public authorities 15 years (paragraph 56) was decisive. constitutes a breach of the fundamental 20 — In Kroon, for the purposes of determining the existence of right enshrined in Article 8(1) of the Con- a 'family', the ECHR held the fact that the couple had produced four children to be decisive, although the father vention. On that point, the case-law of the did not live with his 'companion', the mother of the

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tionality of measures alleged to be in paid employment in the host Member breach of the right to family life without State. What now needs to be established is interference. 21 The criterion of proportion- whether, in this case, the fact of not ality is applied in each case in the light of extending this 'economic' right to a coha- the different interests at stake. bitee constitutes a breach of the (civil) right to family unity which the first paragraph of Article 7 is intended to favour. 22 What is important in this case is to establish whether the interests of the population of the Member States — as mentioned by the 21. In this case, to some extent, the balance United Kingdom Government — should, or of interests has already been taken into should not, give way to the interests account by the Community legislature, inherent in Mrs Eyüp's claim. According which has provided favourably for family to the criterion adopted by the ECHR, such members of Turkish workers. The first an examination should be conducted by paragraph of Article 7 of the Decision reference to the principle of proportional- establishes the right of such family mem- ity; the concept of 'family member' within bers to access to paid employment in the the meaning of the first paragraph of host State. In establishing this right, the Article 7 should not be interpreted so legislature undoubtedly took the economic widely as to leave no room for the interests, interests of Community citizens into including the economic interests, of the account; the first indent requires that the Member States and of the Community person concerned cohabit with the Turkish nationals residing in those States. worker for at least three years, and even thereafter the family member's right of access to paid employment remains subject to the condition that priority be given to workers of Member States of the Commu- nity; in the second indent, the required period of cohabitation for the family mem- ber is set at five years.

when Mr and Mrs Eyüp were living State within the meaning of the first together, they demonstrated an emotional paragraph of Article 7 so as to include the bond characterised by a strong degree of cohabitee of that worker contradicts nei- stability, and continued to live under the ther the spirit nor the purpose of the same roof without any interruption, so far provision. That serves as a general princi- as I have been informed. Indeed, that ple. What is important here, however, is to stability is demonstrated by the fact that give due consideration to the undisputed they later remarried (in 1997 the total facts and characteristics of this case. If one period of time during which they had lived is to follow the reasoning behind the case- together exceeded 13 years). Furthermore, law of the ECHR — and, as I have during those seven and a half years Mr and indicated, I am inclined to do so — the Mrs Eyüp had four of their seven children. exclusion of Mrs Eyüp (over the seven These were later recognised as legitimate years in question) from the category of the children following the second marriage. 'family members' of a person who, at the Besides providing for his children, the time when she applied for the work permit, father also provided for their mother (his had once again become her lawful husband, cohabitee) who, it appears from the case- might constitute a breach of a fundamental file, in her turn, was mainly concerned with right of hers. In my opinion, to assimilate looking after the children in the family Mrs Eyüp to a 'family member' (or home. Moreover, the ECHR has recognised 'spouse') of the Turkish worker during the the existence of 'a family' (within the period in which she cohabited with her ex- meaning of the Convention) on the basis husband does not disproportionately com- of circumstances displaying a lesser degree promise 'the economic well-being' of Com- of stability. For example, in Kroon (see munity nationals residing in Austria. That footnote 18), the mere fact of four children solution appears to me to take reasonable being born was considered decisive, even account of the arguments of those wishing though the father did not live with his to limit the concept of 'family member' to a 'companion', and he had never been mar- spouse with whom the Turkish worker has ried to her. 24 a formal marriage bond, and also of the requirement underlying the arguments of the intervening governments that the right conferred by the first paragraph of Arti- cle 7 should not be extended indiscrimi- nately to any person simply claiming to be 'cohabiting' with a Turkish worker resident in a Member State.

The reply I have proposed to the first satisfy fully the requirements under the first question does not deal with the issue of paragraph of Article 7 of the Decision. whether Mrs Eyiip, in the seven years during which she continued to live with her ex-husband, enjoyed the status of a person 'authorised to join a Turkish worker duly registered as belonging to the labour force' in Austria. Yet, on reading the legislation cited in the order for reference, this question inevitably arises. It cannot be left unresolved. It is important to establish whether the applicant — if she is to be 26. Finally — assuming Austrian law considered, as I feel she should, as a 'family makes residence authorisation, initially member' within the meaning of Commu- granted to allow the person to join a nity law — satisfied the remaining require- Turkish worker, dependent on remaining married (see the preceding paragraph) — ments under the first paragraph of Article 7 the order for reference does not make it of the Decision. It should be noted that on clear from what date the divorce decree, the matter of the 'possibility' (not the pronounced in November 1985 by a Turk- 'right') of family members of a Turkish ish court, acquired legal force in the worker being authorised to join him in the Austrian legal system. If that decree was host State, the first paragraph of Article 7 not pronounced or transcribed in Austria of the Decision does not prejudice the until just before the second marriage, it competence of Member States. 25 The refer- may be that the residence authorisation ring court informs us only that, by reason granted to Mrs Eyiip after the first mar- of the (first) marriage (celebrated in Lau- riage continued to have effect even after the terach), Mrs Eyiip was authorised to stay in divorce decree. According to the explana- Austria as the spouse of a Turkish worker tions provided by the Austrian Government duly registered as belonging to the labour at the hearing, Mrs Eyiip's residency in force of that country. What we are not Austria after the divorce was based not on informed of, however, is what effects her status as a family member authorised to Austrian law assigns to the loss of that join a Turkish worker within the meaning status. In other words, it is not clear from of the first paragraph of Article 7 of the the file of this case whether the divorce, Decision, but on her status as a worker which took place after two years, deprived from a non-member country with sufficient Mrs Eyiip of that status — which she means of subsistence, whatever their origin. acquired by virtue of her marriage — as a person 'authorised to join a Turkish worker duly registered as belonging to the labour force' in the Member State concerned. If that were so, the answer to the first question (whatever it might be) would seem to be devoid of relevance as, during the period of cohabitation, Mrs Eyiip would not in any case have been able to 27. Clearly it is for the referring court to examine the questions put in paragraphs 25 and 26. Only if these are resolved favour- 25 — See Kadiman, paragraphs 32 and 35. ably for the applicant can the reply pro-

posed in response to the first question be entails the extinction of the period of applied. marriage before the divorce. They main- tain, in other words, that the spouses' choice to dissolve their marriage — even if followed, as in this case, by an unin- terrupted period of cohabitation and by a second marriage between the same per- sons — interrupts, and does not merely suspend, the running of the period pre- scribed by the second indent of the first (2) The second and third questions paragraph of Article 7. The intervening governments and the Commission rely principally on Kadiman, in which the Court ruled that — apart from brief stays (such as holidays or family visits) or involuntary 28. In the alternative, should the Court stays in the country of origin — the first reply to the first question in the negative, paragraph of Article 7 of the Decision the Verwaltungsgerichtshof asks in the next requires a member of the Turkish worker's two questions whether, for the purpose of family to reside uninterruptedly in the host satisfying the time conditions under the Member State for the prescribed period. second indent of the first paragraph of Article 7 of the Decision, it is possible to aggregate two periods of marital status — separated by a period of cohabitation in a relationship similar to marriage — between the same persons. Essentially the Court is being asked whether a divorce followed by an uninterrupted period of cohabitation until the second marriage can be considered as interrupting rather than suspending the running of the five-year period needed for family members of a migrant Turkish worker to gain the right to take up employ- ment in the host State. 30. The aim of the first paragraph of the Decision is to establish conditions condu- cive to unity of the family in the host Member State by allowing the migrant worker to have his family with him. Once that has happened, family unity is consoli- dated by the right to take up employment, a 29. According to the intervening govern- right accorded to the family members ments and the Commission, if one consid- themselves '[i]n order to deepen the inte- ers the status of spouse as being essential in gration of a migrant Turkish worker's order to complete the period prescribed by family unit in the host Member State'. 26 the second indent of the first paragraph of As I have said, this 'consolidation' of the Article 7 of the Decision, and thus a negative response is given to the first question, it must be concluded that loss of 26 — Kadiman, paragraph 35; on a similar point, see Commis- that status through divorce necessarily sion v Germany, end of paragraph 11.

unity of the family constitutes a corollary, 32. I could endorse their opinions if Mr or, rather, it attributes added value to that Eyüp had married a different person, thus fundamental right to family life free from establishing a new family and other emo- interference by the public authorities (see tional bonds. In such a case, the periods of Anicle 8(1) of the Convention). residence of the two families could not be aggregated. A similar conclusion might also be adopted if Mr Eyüp, although some years later remarrying his first wife, had lived in the meantime with another woman and possibly married her (later divorcing her also). Conversely, as Mrs Eyüp's lawyer suggested at the hearing, Mrs Eyüp might, after divorcing her first husband, have 31. Mrs Eyüp maintains that what is married another man, perhaps producing important is the 'humun aspect' of a children for him, and later remarried her Turkish worker duly registered as belong- first husband. Either of these cases could — ing to the labour force of a Member State, even according to Mrs Eyüp's lawyer — as well as the spirit and the aims of the have given rise to a real 'interruption' in the provision under consideration. This posi- couple's life together, that is to say a tion seems right to me and appears to be situation in which for a certain period Mr corroborated by the abovementioned case- and Mrs Eyüp ceased even de facto to live law of the ECHR on Article 8 of the solely in the family they originally founded. Convention (see footnote 18), in which the ECHR demonstrated that it gives legal effects — or the right to enjoy a family life free of interference — to 'family' bonds of a particularly serious and stable nature. I also believe that the particular features of the case at issue merit an individual out- come. Mrs Eyüp never stopped living with her ex-husband and the cohabitation was not typical of a separated couple living under the same roof, as the couple pro- duced four children during the period of cohabitation. The case-file does not indi- cate that there were any interruptions at all 33. I need hardly add that the facts of the in the period of cohabitation. Given, then, main proceedings are quite different. The that the aim of the first paragraph of facts in this case are such that, should the Article 7 of the Decision is to favour Court reply to the first question in the 'effective unity of the family' in the host negative, a period of extramarital cohabi- Member State of the Turkish worker and of tation between two ex-spouses who subse- his family,27 the case lends itself to a quently remarry must produce different different conclusion from that proposed legal effects from those likely to result from by the intervening governments and the situations such as those envisaged in the Commission. previous paragraph. Such a period must constitute a 'suspension' and not an 'inter- ruption' of the five-year period laid down 27 — Kadiman, paragraph 46. by the provision under consideration.

35. In the last two questions for prelimin- ary ruling, the referring court asks the 34. Furthermore, the solution proposed Court of Justice about the form and scope does not appear to deviate from the deci- of emergency measures that might be sion of the Court in Kadiman, cited by the adopted to protect temporarily the rights intervening governments and by the Com- deriving in particular from Article 7 of the mission. Mrs Kadiman, a Turkish national, Decision. was forced to remain in Turkey for approximately four months after going there on holiday with her husband, as he had taken away her passport before return- ing alone to Germany where both of them resided. The Court decided that that inter- 36. To illustrate the importance of a reply ruption in their cohabitation, which was to those questions, Mrs Eyüp reiterated the beyond her control, should be treated as equivalent to a period in which the family member in question was actually living 28 — Kadiman, paragraphs 46-49.

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(1) The concept of 'members of the family' in the first paragraph of Article 7 of Decision N o 1/80 of the EEC-Turkey Association Council of 19 Sep- tember 1980 on the development of the Association between the European Economic Community and Turkey includes the extra-marital cohabitee of a

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Turkish worker, provided there is a serious and stable family bond between the two people, such as that occurring when, after divorcing, the couple lives together without interruptions and then remarries.

(2) and (3) The requirement under the second indent of the first pararaph of Article 7 of Decision No 1/80 for a minimum cohabitation period of five years is satisfied where a Turkish worker has married, divorced and subsequently remarried the same person, if the spouses have in fact continued to cohabit between the two marriages and the length of the periods of marital cohabitation, taken together, amounts to at least five years.

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