(Reference for a preliminary ruling from the Verwaltungsgericht Freiburg)

(EEC-Turkey Association –– Free movement of workers –– Decision No 1/80 of the Association Council –– Articles 6 and 7 –– Criminal conviction –– Prison sentence –– Effect on right of residence)

Judgment of the Court (Fifth Chamber), 7 July 2005

Summary of the Judgment

International agreements — EEC-Turkey Association Agreement — Association Council established by the EEC-Turkey Association Agreement — Decision No 1/80 — Family reunification — Access by family members of a Turkish worker duly registered as belonging to the labour force of a Member State to paid employment of their choice in that Member State — Limitation of rights on account of a prolonged absence from the labour market as a result of a term of imprisonment followed by drug treatment or on account of the fact that the family members ceased to reside with the Turkish worker — Not permissible

(Decision No 1/80 of the EEC-Turkey Association Council, Art. 7, first para.)

A Turkish national who is a family member of a Turkish worker who, after having been legally resident for at least five years in the host Member State, enjoys the right of free access to any paid employment of his choice under the second indent of the first sentence of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council, does not forfeit that right either as a result of his prolonged absence from the labour market due to imprisonment, even for a period of several years, followed by long-term drug treatment, or on account of the fact that at the time of the decision to expel him the person concerned was an adult and no longer resided with the Turkish worker from whom he derived his right of residence, but lived independently.

(see para. 32, operative part)

7 July 2005(*)

(EEC-Turkey Association – Free movement of workers – Decision No 1/80 of the Association Council – Articles 6 and 7 – Criminal conviction – Prison sentence – Effect on right of residence)

In Case C-373/03,

REFERENCE for a preliminary ruling under Article 234 EC from the Verwaltungsgericht Freiburg (Germany), made by decision of 12 March 2003, received at the Court on 5 September 2003, in the proceedings

Land Baden-Württemberg,

THE COURT (Fifth Chamber),

composed of R. Silva de Lapuerta, President of the Chamber, R. Schintgen (Rapporteur) and P. Kūris, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Land Baden-Württemberg, by I. Karrais, acting as Agent,

– the German Government, by A. Tiemann, acting as Agent,

– the Commission of the European Communities, by G. Rozet and H. Kreppel, acting as Agents,

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

gives the following

This reference for a preliminary ruling concerns the interpretation of Articles 6 and 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 set up by the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey and by the Member States of the EEC and the Community 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).

The reference was made in the course of proceedings between Mr Aydinli, a Turkish national, and Land Baden-Württemberg 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.

(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.

4. The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

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

(8)Does the child of a Turkish worker who has completed a course of vocational training in the host country forfeit his right under the second sentence of Article 7 of Decision No 1/80 to respond to any offer of employment in that Member State if he has already entered the labour force there by taking up permanent employment?

(9)Is that right under the second sentence of Article 7 of Decision No 1/80 forfeited if a person with that right has ceased to be duly registered as belonging to the labour force of that Member State in a way that would lead to the loss of a Turkish worker’s legal status under the third indent of Article 6(1)?

The questions referred for a preliminary ruling

Preliminary observation

18As a preliminary point, it must be observed that the main proceedings concern the situation of a Turkish national who, as the child of a Turkish migrant couple, at least one of whom is duly registered as belonging to the labour market of a Member State, was authorised to join them on the territory of that State to reunite the family, on the basis of the first sentence of Article 7 of Decision No 1/80. The national court held, in that context, that the person concerned enjoys the right to free access to any paid employment of his choice, in accordance with the second indent of the first sentence of Article 7, on account of his legal residence for five years in that Member State.

19Furthermore, Article 6(1) of Decision No 1/80 applies ‘subject to the provisions of Article 7 on free access to employment for members of [the] family’ of a Turkish worker. It follows that those provisions constitute a lex specialis in relation to the rights which are gradually extended according to the period of stable paid employment, laid down in the three indents of Article 6(1).

20In those circumstances it is appropriate to examine first the fifth, sixth and seventh questions on the interpretation of the second indent of the first sentence of Article 7 of Decision No 1/80.

The fifth, sixth and seventh questions

21Those questions all ask to what extent a Turkish national, such as Mr Aydinli, who enjoys the right to free access in the host Member State to any paid work of his choice under the second indent of the first sentence of Article 7 of Decision No 1/80 may forfeit that right where he has been given an unconditional prison sentence of several years, part of which has been replaced by the obligation to undertake long-term drug therapy. It is therefore appropriate to examine them together.

22In order to provide a useful reply to those questions it is necessary to consider, first of all, the case-law which provides that the first sentence of Article 7 of Decision No 1/80 applies to the situation of a Turkish national who, as a member of the family of a Turkish worker who is or was duly registered as belonging to the legal labour force of the host Member State, has either been authorised to join that worker to reunite the family or was born and has always resided in that State. The applicability of the first sentence of Article 7 to that type of situation is independent of the fact that, at the time of the proceedings, the person concerned is an adult no longer living with his family, but living independently and working in the Member State concerned (see, to that effect, Case C-329/97 Ergat [2000] ECR I-1487, paragraphs 26 and 27, and Case C-467/02 Cetinkaya [2004] ECR I‑0000, paragraph 34).

23Such a Turkish national cannot, therefore, forfeit a right acquired on the basis of that provision as a result of circumstances arising such as those referred to in the previous paragraph. Furthermore, the right of access to employment in the host Member State by members of a Turkish worker’s family, after a certain period, is specifically intended to consolidate their position in that State by offering them the chance to become independent.

24Furthermore, although the first indent of the first sentence of Article 7 of Decision No 1/80 requires, as a rule, that a member of the family of a Turkish worker must actually reside with him for the three years during which the person concerned fails to satisfy the conditions for access to the labour market in the host Member State (see Case C-351/95 Kadiman [1997] ECR 2133, paragraph 33, 37, 40, 41 and 44, and Cetinkaya, paragraph 30), the fact remains that Member States are no longer entitled to attach conditions to the residence of a member of a Turkish worker’s family after that three-year period; this must a fortiori be the case for a Turkish migrant who fulfils the conditions laid down in the second indent of the first sentence of Article 7 (see Ergat, paragraphs 37 to 39, and Cetinkaya, paragraph 30).

25In that connection, the Court has specifically held, as regards family members covered by the first sentence of Article 7 of Decision No 1/80 who, like Mr Aydinli, enjoy the right to free access to employment in the host Member State after five years of legal residence in accordance with the second indent of that provision, not only that the direct effect of that provision means that the person concerned derives an individual employment right directly from Decision No 1/80, but also that to be effective that right necessarily implies a concomitant right of residence which does not depend on the continuing existence of the conditions for access to those rights (see Ergat, paragraph 40, Cetinkaya, paragraph 31, and, by analogy, Case C‑383/03 Dogan [2005] ECR I-0000, paragraph 14).

26Accordingly, the fact that the condition of eligibility for the right in question, in this case residence with the Turkish worker for a certain period, ceases to apply after the family member has acquired the relevant right cannot affect the enjoyment of that right.

27Secondly, it is clear from the case-law that the limits on the right of residence, as a corollary of the right to access to the employment market and the right to take up employment which members of the family of a Turkish worker who satisfy the conditions laid down in the first sentence of Article 7 of Decision No 1/80 enjoy, are of two kinds. Either the presence of a Turkish migrant 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 Decision No 1/80, or the person concerned has left the territory of that State for a significant length of time without legitimate reason (see, to that effect, Ergat, paragraphs 45, 46 and 48, and Cetinkaya, paragraph 36).

28On the other hand, the first sentence of Article 7 of Decision No 1/80 does not permit the rights conferred by that provision on a Turkish national in Mr Aydinli’s position to be limited following the imposition of a custodial sentence, even a sentence of several years which is initially unconditional followed by long-term drug therapy, on the ground of his prolonged absence from the labour market (see, by analogy, Cetinkaya, paragraph 39).

29The interpretation set out in the preceding paragraph is borne out especially by the fact that under the first sentence of Article 7, unlike Article 6(1) of Decision No 1/80, which concerns Turkish workers, the creation of employment rights for family members is not conditional on those family members being duly registered as belonging to the labour force of the State concerned and having worked for a certain period, but simply to a requirement of actual residence with the worker from whom they derive their rights for an initial period of three years. In addition, the first and second indents of the first sentence of Article 7 grant family members of a Turkish worker a right to employment, but do not impose any obligation on them to work such as that set out in the first sentence of Article 1 of Decision No 1/80.

30It follows that, first, the provisions of Article 6(2) of Decision No 1/80 are in no case applicable in the context of Article 7. It is solely for the purpose of calculating the periods of employment necessary to acquire the rights provided for in Article 6(1) that Article 6(2) sets out the effects, for the purposes of that calculation, of the various causes of interruption of employment (see Dogan, paragraph 15).

31Secondly, a member of the family of a Turkish worker, who satisfies the conditions laid down in the first sentence of Article 7 of Decision No 1/80 and who wishes to work in the host Member State, does not have to comply with the more rigorous conditions laid down in that regard in Article 6(1) (see to that effect, by analogy, Case C-210/97 Akman [1998] ECR I-7519, paragraphs 48 to 50).

32Taking account of all of the foregoing considerations, the answer to the fifth, sixth and seventh questions must be that a Turkish national who enjoys the right of free access to any paid employment of his choice, pursuant to the second indent of the first sentence of Article 7 of Decision No 1/80, does not forfeit that right either as a result of his prolonged absence from the labour market due to imprisonment, even for a period of several years followed by long-term drug treatment, or on account of the fact that at the time of the decision to expel him he was an adult and no longer resided with the Turkish worker from whom he derived his right of residence but lived independently.

The first to fourth questions and the eighth and ninth questions

33Having regard to the answer to the fifth, sixth and seventh questions, there is no longer any need to give a ruling on the other questions referred.

Costs

34Since 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 (Fifth Chamber) hereby rules:

A Turkish national who enjoys the right of free access to any paid employment of his choice under the second indent of the first sentence of Article 7 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, does not forfeit that right either as a result of his prolonged absence from the labour market due to imprisonment, even for a period of several years followed by long-term drug treatment, or on account of the fact that the time of the decision to expel him he was an adult and no longer resided with the Turkish worker from whom he derived his right of residence but lived independently.

[Signatures]

*

Language of the case: German.