19.2.2011

Official Journal of the European Union

C 55/2

(Case C-303/08) (<span class="super">1</span>)

(EEC-Turkey Association Agreement - Family reunification - Article 7, first paragraph, of Decision No 1/80 of the Association Council - Spouse of a Turkish worker who has cohabited with her for more than five years - Continuing existence of the right of residence after divorce - Conviction of the person concerned for violence towards his ex-wife - Abuse of rights)

2011/C 55/02

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Land Baden-Württemberg

Defendant: Metin Bozkurt

Intervener: Vertreter des Bundesinteresses beim Bundesverwaltungsgericht

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of the second indent of 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 between the European Economic Community and Turkey — Right of residence acquired, as a family member, by a Turkish national as the spouse of a Turkish worker duly registered as belonging to the labour force of a Member State — Retention of the right of residence in the case of divorce preceded by physical attacks on the ex-spouse which resulted in a criminal conviction

Operative part of the judgment

1.The first paragraph of Article 7 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council created by the Agreement establishing an Association between the European Economic Community and Turkey, is to be interpreted as meaning that a Turkish national such as the applicant in the main proceedings, who, as a member of the family of a Turkish worker who is duly registered as belonging to the labour force of a Member State and as a result of his residing with his spouse for a continuous period of at least five years, enjoys the rights relating to the legal status conferred on the basis of the second indent of that provision, does not lose those rights on account of his divorce, which took place after those rights were acquired.

2.It is not an abuse of rights for a Turkish national such as the applicant in the main proceedings to rely on a right legally acquired pursuant to the first paragraph of Article 7 of Decision No 1/80 even though the person concerned, after acquiring that right through his former wife, committed a serious offence against her which gave rise to a criminal conviction. It is for the competent national court to assess whether that is the case in the main proceedings.

By contrast, Article 14(1) of Decision No 1/80 does not preclude a measure ordering the expulsion of a Turkish national who has been convicted of criminal offences, provided that his personal conduct constitutes a present, genuine and sufficiently serious threat to a fundamental interest of society. It is for the competent national court to assess whether that is the case in the main proceedings.

(<span class="super">1</span>) OJ C 247, 27.9.2008.