(Reference for a preliminary ruling from the Bundesverwaltungsgericht)

(EEC-Turkey Association – Freedom of movement for workers – Article 7, second paragraph, of Decision No 1/80 of the Association Council – Child of a Turkish worker who has reached the age of majority and completed a course of vocational training in the host Member State – Criminal conviction – Effect on right of residence)

Summary of the Judgment

International agreements – EEC-Turkey Association Agreement – Association Council set up by the EEC-Turkey Association Agreement – Decision No 1/80 – Family reunification – Members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State

(Decision No 1/80 of the EEC-Turkey Association Council, Arts 7, second para., and 14(1))

The child, who has reached the age of majority, of a Turkish migrant worker who has been legally employed in a Member State for more than three years, and who has successfully finished a vocational training course in that State and satisfies the conditions set out in the second paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council does not lose the right of residence that is the corollary of the right to respond to any offer of employment conferred by that provision except in the circumstances laid down in Article 14(1) of that provision, namely on grounds of public policy, public security or public health, or when he leaves the territory of the host Member State for a significant length of time without legitimate reason.

(see paras 21, 29, operative part)

16 February 2006 (*)

(EEC-Turkey Association – Freedom of movement for workers – Article 7, second paragraph, of Decision No 1/80 of the Association Council – Child of a Turkish worker who has reached the age of majority and completed a course of vocational training in the host Member State – Criminal conviction – Effect on right of residence)

In Case C-502/04,

REFERENCE for a preliminary ruling under Article 234 EC, by the Bundesverwaltungsgericht (Germany), made by decision of 3 August 2004, received at the Court on 7 December 2004, in the proceedings

Stadt Augsburg,

intervening parties:

Vertreter des Bundesinteresses beim Bundesverwaltungsgericht,

Landesanwaltschaft Bayern,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, R. Schintgen (Rapporteur), R. Silva de Lapuerta, G. Arestis and J. Klučka, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–Mr Torun, by K. Lehner, Rechtsanwalt,

–the German Government, by M. Lumma and C. Schulze-Bahr, acting as Agents,

–the Slovak Government, by R. Procházka, acting as Agent,

–the Commission of the European Communities, by G. Rozet and B. Martenczuk, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1This reference for a preliminary ruling concerns the interpretation of the second paragraph of Article 7 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association (‘Decision No 1/80’). The Association Council was established by the Agreement establishing an Association between the European Economic Community and Turkey, which was signed on 12 September 1963 at Ankara by the Republic of Turkey, of the one part, and the Member States of the EEC and the Community, of the other part, and was 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).

2The reference was made in the context of proceedings between Mr Torun, a Turkish national, and the Stadt Augsburg concerning proceedings to expel him from German territory.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

Furthermore, it is apparent from the decision to refer that it is common ground that the conditions for the application of Article 14(1) of Decision No 1/80 are not satisfied in the present case.

Concerning the first question

16By its first question, the national court essentially asks in what circumstances a Turkish national, such as Mr Torun, who enjoys in the host Member State the right of free access to any paid employment of his choice under the second paragraph of Article 7 of Decision No 1/80, may lose that right.

17In order to reply to that question, it must be noted from the outset that, within the scheme established by Decision No 1/80, Chapter II, Section 1 thereof, which includes inter alia Articles 6, 7 and 14 of that decision, specifically regulates the rights of Turkish nationals as regards employment in the host Member State. That decision draws a distinction between the situation of Turkish workers who have been legally employed in the Member State concerned for a specified period (Article 6) and that of members of the families of such workers in the territory of the host Member State (Article 7).

18Within the latter category, Decision No 1/80 distinguishes further between members of a worker’s family who have been authorised to join him in the host Member State and who have been legally resident there for a specified period (the first paragraph of Article 7) and the children of such workers who have completed a course of vocational training in the Member State concerned (the second paragraph of Article 7) (see Case C‑210/97 Akman [1998] ECR I-7519, paragraph 21).

19With regard more particularly to the second paragraph of Article 7 of Decision No 1/80, the provision with which the national court’s first question is concerned, it must first be noted that the Court has already held that, like Article 6(1) (see Case C-192/89 Sevince [1990] ECR I-3461, paragraph 26) and the first paragraph of Article 7 (Case C-351/95 Kadiman [1997] ECR I‑2133, paragraph 28), that provision has direct effect in the Member States, so that Turkish nationals fulfilling the conditions which it lays down may directly rely on the rights it confers on them (Case C‑355/93 Eroglu [1994] ECR I-5113, paragraph 17, and Akman, paragraph 23).

20Secondly, the rights granted by the second paragraph of Article 7 to the child of a Turkish worker with regard to employment in the Member State concerned necessarily imply the existence of a concomitant right of residence for that child, without which the right to have access to the employment market and actually to take up salaried employment would be rendered totally ineffective (Eroglu, paragraphs 20 and 23, and Akman, paragraph 24).

21Thirdly, as regards the first paragraph of Article 7 of Decision No 1/80, it is settled case-law that the rights accorded by that provision to the members of a Turkish worker’s family who satisfy the conditions set out in that paragraph cannot be restricted except in accordance with Article 14(1) of that decision, namely on grounds of public policy, public security or public health, or because of the fact that the party concerned has left the territory of the host Member State for a significant length of time without legitimate reason (Case C-329/97 Ergat [2000] ECR I-1487, paragraphs 45, 46 and 48; Case C‑467/02 Cetinkaya [2004] ECR I-10895, paragraphs 36 and 38; and Case C‑373/03 Aydinli [2005] ECR I-0000, paragraph 27).

22Fourthly, the conditions set out in the first paragraph of Article 7 of Decision No 1/80 are stricter than those laid down in the second paragraph of that article, which are solely for the benefit of children of a Turkish worker who have completed a vocational training course in the host Member State (Akman, paragraph 35).

23It thus follows from Court’s case-law that the second paragraph of Article 7 of Decision 1/80 is a more favourable provision than the first and is intended to provide specific treatment for children, as opposed to other members of the family of a Turkish worker, with a view to facilitating their entry into the employment market following completion of a course of vocational training, the objective being the achievement by progressive stages of freedom of movement for workers, in accordance with the aims of that decision (Akman, paragraph 38).

24Therefore, the second paragraph of that Article 7 cannot be interpreted more restrictively than the first paragraph of that same article, and that is all the more reason why the rights conferred by it on Turkish nationals who satisfy the conditions set out in that second paragraph cannot be restricted in situations other than those applicable in connection with the first paragraph of the same article.

25As a result, there can be only two kinds of restrictions on the rights conferred by the second paragraph of Article 7 of Decision No 1/80: either the presence of a Turkish migrant worker in the host Member State constitutes, on account of his own conduct, a genuine and serious threat to public policy, public security or public health, in accordance with Article 14(1) of that decision, or the person concerned has left the territory of that State for a significant length of time without legitimate reason (see, by analogy, Cetinkaya, paragraph 36, and Aydinli, paragraph 27).

26In those circumstances, contrary to what the German Government contends in its written observations, the rights conferred by the second paragraph of Article 7 of Decision No 1/80 cannot be limited in the same situations as those conferred by Article 6 thereof. Thus, the Turkish national accorded such rights can be deprived of them neither because he was unemployed on account of being condemned to a three year prison sentence nor because of the fact that he lost his entitlement to the right of residence, which is corollary to the right to employment acquired earlier under Article 6(1) of that decision (see, to that effect, Aydinli, paragraph 31).

27Lastly, the second paragraph of Article 7 of Decision No 1/80 cannot be interpreted as applying solely to the position of a person under the age of majority, who is the child of a Turkish worker duly registered as belonging to the labour force of the host Member State, while excluding the child of such a worker who has reached the age of majority.

28First of all, Article 7, in its second paragraph, does not make any distinction to that effect. Next, such an interpretation would render that paragraph to a large extent meaningless. Finally, the first paragraph of Article 7 of Decision No 1/80 also applies to the position of a person who has reached the age of majority who is the child of a Turkish worker duly registered as belonging to the labour force of the host Member State (see, to that effect, Cetinkaya, paragraph 34, and Aydinli, paragraphs 22 and 23) and, in the scheme established by Decision No 1/80, the second paragraph of the aforementioned Article 7 cannot be interpreted more restrictively than the first paragraph of that same article (see paragraphs 22 and 24 of this judgment).

29In the light of the preceding considerations, the answer to the first question referred must be that the child, who has reached the age of majority, of a Turkish migrant worker who has been legally employed in a Member State for more than three years and who has successfully completed a vocational training course in that State and satisfies the conditions set out in the second paragraph of Article 7 of Decision No 1/80, does not lose the right of residence that is the corollary of the right to respond to any offer of employment conferred by that provision except in the circumstances laid down in Article 14(1) of that provision or when he leaves the territory of the host Member State for a significant length of time without legitimate reason.

Concerning the second question

30According to the order for reference, the second question is asked only if the first question should be answered in the affirmative.

31Having regard to the reply given to the first question, it is therefore not necessary to reply to the second question.

Costs

32Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

The child, who has reached the age of majority, of a Turkish migrant worker who has been legally employed in a Member State for more than three years, and who has successfully finished a vocational training course in that State and satisfies the conditions set out in the second paragraph of Article 7 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council established by the Association Agreement between the European Economic Community and Turkey, does not lose the right of residence that is the corollary of the right to respond to any offer of employment conferred by that provision except in the circumstances laid down in Article 14(1) of that provision or when he leaves the territory of the host Member State for a significant length of time without legitimate reason.

[Signatures]

*

Language of the case: German.