OPINION OF ADVOCATE GENERAL

Sharpston

delivered on 8 July 2010 (1)

Case C‑484/07

Fatma Pehlivan

v

Staatssecretaris van Justitie

(Reference for a preliminary ruling from the Rechtbank ’s‑Gravenhage (Netherlands))

(EEC-Turkey Association Agreement – Decision No 1/80 of the Association Council – Right of residence of the members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State)

1.        By this reference for a preliminary ruling, the Court is once again asked to interpret Decision No 1/80 of the EEC-Turkey Association Council (‘Decision No 1/80’). (2) The particular issue which arises in this case is that of the status of the daughter of a Turkish worker who was authorised to join, and did join, him in a Member State by virtue of Article 7 of that decision. Before the expiry of the three-year period after which rights of access to the employment market may arise under the first indent of the first paragraph of that article, she married a Turkish national in Turkey, but remained ‘under the same roof’ as the worker and his spouse in the Netherlands throughout that period. The national authorities of that Member State have sought to withdraw her right of residence. They argue that, by reason of her marriage, she ceased to be a member of the family of a Turkish worker for the purposes of that article and that she has therefore lost her right to remain in the host Member State.

 Legal background

 The EEC-Turkey Association Agreement

2.        The EEC-Turkey Association Agreement (3) (‘the Association Agreement’) was concluded in 1963.

3.        Article 59 of the Additional Protocol to the Association Agreement (4) is worded as follows:

‘In the fields covered by this Protocol Turkey shall not receive more favourable treatment than that which Member States grant to one another pursuant to the Treaty establishing the Community.’

4.        Chapter II of Decision No 1/80 is entitled ‘Social provisions’. Section 1 of that chapter is entitled ‘Questions relating to employment and the free movement of workers’. It comprises Articles 6 to 16 of the decision.

5.        Article 6(1) and (2) provides:

‘(1) Subject to Article 7 on free access to employment for members of his family, a Turkish worker duly registered as belonging to the labour force of a Member State:

–        shall be entitled in that Member State, after one year’s legal employment, to the renewal of his permit to work for the same employer, if a job is available;

–        shall be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of Member States of the Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment services of that State, for the same occupation;

–        shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment.

(2) Annual holidays and absences for reasons of maternity or an accident at work or short periods of sickness shall be treated as periods of legal employment. Periods of involuntary unemployment duly certified by the relevant authorities and long absences on account of sickness shall not be treated as periods of legal employment, but shall not affect rights acquired as the result of the preceding period of employment.’

6.        Article 7 of Decision No 1/80 states:

‘The members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State, who have been authorised to join him:

–        shall be entitled – subject to the priority to be given to workers of Member States of the Community – to respond to any offer of employment after they have been legally resident for at least three years in that Member State;

–        shall enjoy free access to any paid employment of their choice provided they have been legally resident there for at least five years.

Children of Turkish workers who have completed a course of vocational training in the host country may respond to any offer of employment there, irrespective of the length of time they have been resident in that Member State, provided one of their parents has been legally employed in the Member State concerned for at least three years.’

7.        Article 14(1) of Decision No 1/80 provides:

‘The provisions of this section shall be applied subject to limitations justified on grounds of public policy, public security or public health.’

 National law

8.        The Wet van 23 november 2000 tot algehele herziening van de Vreemdelingenwet (Law of 23 November 2000 providing for a comprehensive review of the Law on Foreign Nationals) (‘the Vw 2000’) entered into force on 1 April 2001.

9.        On the same date, the Vreemdelingenbesluit (Decree on Foreign Nationals) 2000 (‘the Vb 2000’) and the Voorschrift Vreemdelingen (Regulation on Foreign Nationals) also entered into force. In the Vreemdelingencirculaire (Guidelines on the Implementation of the Law on Foreign Nationals) 2000 (‘the Vc 2000’), the Staatssecretaris van Justitie (Secretary of State for Justice), the defendant in the main proceedings, explained the way in which he intended to use the powers conferred on him by the Vw 2000 and the Vb 2000.

10.      By Article 14(1) of the Vw 2000, the national authorities of the Netherlands have the power, inter alia, to approve and reject applications for the grant and extension of fixed-term residence permits by foreign nationals and to amend those permits. Article 14(2) allows such permits to be issued subject to restrictions or conditions.

11.      Article 18(1) of the Vw 2000 provides that an application for the extension of a fixed-term residence permit may be refused for various reasons. These include cases where (1) the applicant has submitted incorrect information or has withheld information which would have led to the rejection of the original application for the grant or extension of a permit and (2) the applicant has failed to comply with a restriction subject to which the permit was granted or with a condition attached to it.

12.      Article 19 of the Vw 2000 allows the national authorities to withdraw a residence permit on certain grounds which would have allowed an application for the extension of the permit to be refused. These include the matters referred to in point 11 above.

13.      Article 3.51(1)(a) of the Vb 2000 provides that a fixed-term residence permit subject to a restriction relating to continued residence may be granted to a foreign national who has resided in the Netherlands for three years as the holder of a residence permit, subject to a restriction relating to the reunification of a family with a person having a non-temporary right of residence.

14.      The guidelines laid down in the Vc 2000 include provisions intended to regulate the way in which the Netherlands authorities are to apply the provisions of Decision No 1/80. Part B11/3.5 of the Vc 2000, in the version which applied at the time of the decision at issue in the main proceedings, was worded as follows:

‘… “members of the family”: the spouse of the Turkish worker and their blood relatives in the descending line below the age of 21 years or dependent on them, together with the blood relatives in the ascending line of that worker and his spouse who are dependent on them …

“legally resident”: this term presupposes that the family member has actually lived with the Turkish worker for a continuous period of three or five years ... In the calculation of this period allowance must, however, be made for brief interruptions of cohabitation without the intention of abandoning such cohabitation. An example might be absence from the communal residence for a reasonable period for which there are sound reasons or an involuntary stay of less than six months by the person concerned in his country of origin ...’

15.      Part B2/8.3 of the Vc 2000, in the form which applied at the time of the decision at issue in the main proceedings, provided as follows:

‘A residence permit shall not be granted if the child who is of the age of majority, does not in fact form part or, in the country of origin, did not already form part of the parent’s family. “In fact form part of the family” means that:

–        the family link already existed in the foreign country;

–        there is moral and financial dependence on the parent, which must have already existed in the foreign country; and

–        the foreign national must be going to live with the parent(s).

Children who have reached the age of majority no longer in fact form part of the family if the actual family link can be regarded as broken. This is always the case in one or more of the following circumstances:

…

–        the foreign national forms a separate family by entering into a marriage or relationship;

–        the foreign national is responsible for or has custody of a legitimate or illegitimate child, a foster or adopted child or other dependent family members.

…’

16.      As regards the right of residence of a family member who has completed the three-year period referred to in the first indent of the first paragraph of Article 7 of Decision No 1/80, Part B11/3.5.1 of the Vc 2000 provided:

‘… free access to the labour market as referred to in the second indent of the first paragraph of Article 7 of Decision No 1/80 is applicable after three years of legal residence. This more favourable rule for the members of the family of a Turkish worker departs from the first indent of the first paragraph of Article 7 of Decision No 1/80. This more favourable rule must be applied at all times.

…

Pursuant to Article 7 of Decision No 1/80, no further conditions shall be imposed on the residence of family members after three years of legal residence. ...’

 The main proceedings and the questions referred for a preliminary ruling

17.      Ms Pehlivan, the applicant in the main proceedings, was born on 7 August 1979 and has Turkish nationality. She entered the Netherlands on 11 May 1999. With effect from 9 August 1999, the Staatssecretaris van Justitie granted her a normal fixed-term residence permit with the endorsement ‘extended family reunification with parents’. That permit was last extended until 24 July 2003.

18.      On 22 December 2000, Ms Pehlivan married a Mr Ekrem Pehlivan, a Turkish national, in Turkey. A son was born on 30 March 2002. Although it appears that she was required to notify the marriage to the Netherlands authorities on, or shortly after, its taking place, it was not until 3 May 2002 that Ms Pehlivan in fact did so.

19.      Shortly before the birth of her son, on 19 March 2002, Ms Pehlivan lodged an application for an amendment of the endorsement on her residence permit, with a view to the endorsement reading ‘continued residence’. By decision of 13 October 2003 (‘the decision at issue’), the Staatssecretaris van Justitie withdrew Ms Pehlivan’s residence permit and, at the same time, refused the application for the endorsement to be changed.

20.      The reason given for the decision to withdraw the residence permit was that the actual family link had been broken as a result of Ms Pehlivan’s marriage on 22 December 2000. The withdrawal was retrospective, taking effect on that date.

21.      From 12 August 1999 until 1 April 2005, (5) Ms Pehlivan lived with her parents in the Netherlands. She continued to do so notwithstanding her marriage. According to a declaration made by Ms Pehlivan to an official commission in that country, her husband came to the Netherlands and lived with her and her parents for nine months from June 2002. He was deported following the rejection of his residence application. By judgment of a Turkish court of 10 February 2004, the marriage was dissolved.

22.      Being dissatisfied with the decision to withdraw her residence permit and to refuse her application for a change to the endorsement associated with that permit, Ms Pehlivan objected to the decision at issue on 7 November 2003. By decision of 12 December 2005, the Staatssecretaris van Justitie rejected that objection.

23.      On 29 December 2005, Ms Pehlivan challenged the last mentioned decision before the Rechtbank ’s-Gravenhage (District Court, the Hague).

24.      Since it took the view that the interpretation of Article 7 of Decision No 1/80 was necessary in order for it to give a ruling in the main proceedings, the national court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1a      Must the first indent of the first paragraph of Article 7 of [Decision No 1/80] be interpreted as meaning that that article is applicable if a family member has actually cohabited with a Turkish worker for three years without the right of residence of that family member being challenged by the competent national authorities during those three years?

1b      Does the first indent of the first paragraph of Article 7 of [Decision No 1/80] prevent a Member State from stipulating during those three years that, if the family member who has been admitted marries, no further rights are acquired under that provision, even if the family member continues to live with the Turkish worker?

2      Does the first indent of the first paragraph of Article 7 or any other provision or principle of European law prevent the competent national authorities from challenging the right of residence of the foreign national concerned with retroactive effect after that period of three years under national rules determining whether that person is a family member and/or was legally resident during those three years?

3a      Is it of any relevance to the answers to the above questions whether or not the foreign national intentionally withholds information which is relevant to his right of residence under national legislation? If so, in what way?

3b      Does it make any difference in this context whether that information becomes known in the aforementioned period of three years or only after those three years have elapsed, bearing in mind that, after that information has become known, the competent national authorities possibly need to undertake (further) investigations before reaching their decision? If so, in what way?’

25.      Written observations have been submitted by Ms Pehlivan, by the German, Italian and Netherlands Governments and by the European Commission. At the hearing, which took place on 15 April 2010, oral argument was presented by Ms Pehlivan, the Netherlands Government and the Commission.

 Assessment

26.      The questions referred raise a number of points. The most important of these is that set out in Question 1b, which concerns the substantive issue of the impact of marriage on a person’s right of residence under Article 7 of Decision No 1/80 (‘Article 7’). I shall address that first. I shall then consider Questions 1a and 2, which involve the right of a Member State to challenge rights purportedly acquired under that article and are best dealt with together. Since Questions 3a and 3b concern matters that are consequential on the answers to the other questions, I shall deal with them last.

 Question 1b

27.      By this question, the national court is essentially questioning the validity of a national rule which provides that, if a person, such as Ms Pehlivan, who lawfully enters a Member State and takes up residence there under Article 7, should marry during the three-year period referred to in the first indent of the first paragraph of Article 7, that person ceases to be entitled to enjoy rights arising under it.

28.      Each of the Member States which has submitted observations before the Court argues that such a national rule is valid. In their view, the decision at issue, whereby Ms Pehlivan’s right of residence in the Netherlands was terminated by reason of her marriage, was perfectly lawful. For their part, Ms Pehlivan and the Commission maintain that the order should not have been made and that Ms Pehlivan’s right of residence should continue, unaffected by her marriage. Ms Pehlivan stated in her written observations and again at the hearing that there is no question of her having withheld the information from the authorities fraudulently or dishonestly.

 Preliminary observations

29.      It is necessary to begin by examining the context in which Article 7 was enacted.

30.      Article 2(1) of the Association Agreement sets out its purpose. It provides that the aim of the agreement is to promote the continuous and balanced strengthening of trade and economic relations between the Contracting Parties. By virtue of Article 12 of the agreement, the Contracting Parties agree to be bound by the Treaty provisions on freedom of movement for workers set out in what are now Articles 45 TFEU, 46 TFEU and 47 TFEU.

31.      Decision No 2/76 of the Association Council (6) laid down a number of measures intended to implement the provisions of the agreement relating to freedom of movement for workers. In particular, Article 2 gave Turkish workers employed in a Member State certain limited rights of access to the employment market in that State after a period of three years’ legal employment there. After five years’ employment, those workers were entitled to free access in that Member State to any paid employment of their choice. Article 3 stated that Turkish children who were ‘residing legally’ with their parents in that State were to be granted access there to general courses of education. However, they were given no right to access the employment market in the Member State in which their parent was working.

32.      Decision No 2/76 was superseded by Decision No 1/80. The third recital to the latter decision records that it was deemed ‘necessary to improve the treatment accorded [to] workers and members of their families’ in relation to the arrangements laid down in Decision No 2/76.

33.      By Article 6 of Decision No 1/80, the provisions of Article 2 of Decision No 2/76 were expanded upon. In particular, a Turkish worker ‘duly registered as belonging to the labour force of a Member State’ was given a degree of security of employment after one year’s legal employment, in the form of the right to renewal of his permit to work for the same employer if a job was available. The period of five years’ legal employment after which that worker was previously entitled to free access in the Member State to paid employment of his choice under Decision No 2/76 was reduced to one of four years.

 Article 7

34.       By Article 7 of Decision No 1/80, the terms of which are at issue in the main proceedings, the provisions relating to the Turkish worker’s family members were significantly extended. In particular, the first paragraph of that article provides that the members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State, who have been authorised to join him, are to be entitled to limited access to the employment market in that country after they have been legally resident for at least three years. After being legally resident for at least five years, they are to enjoy free access to any paid employment of their choice. The social policy grounds underlying Article 7 are clear. By providing that a Turkish worker who makes use of the rights available under Article 6 may be joined by members of his family, that worker’s stay in the host Member State is enriched. The result is of benefit both to the worker (in terms of his improved quality of life) and the host State (in terms of a more settled workforce). On such considerations of mutual advantage, much of the social policy of the European Union is based.

35.      The Court has ruled on the interpretation of Articles 6 and 7 of Decision No 1/80 on a number of occasions and has laid down various general principles relevant to the family members of Turkish workers. First, Article 7 must be given direct effect in the Member States, with the result that Turkish nationals fulfilling the conditions under it may rely directly on the rights it confers on them. (7) The corollary of this is that rights available to family members are rights which arise under European Union law, rather than rights arising under national law which at some future stage may become ‘European’ rights. That includes the right of residence of the family member, once he has been authorised to enter the host Member State, pending the acquisition of rights to take up employment under the first indent of Article 7, first paragraph. By extension, the question of what conditions may be attached to those rights is one which falls to be determined as a matter of European Union law and not national law.

36.      Second, Decision No 1/80 does not define what is meant by a ‘member of the family’ of a Turkish worker. The Court has held that the concept of ‘family member’ must be construed in a uniform manner at Community level in order to ensure consistent application in the Member States. (8) This is an inevitable result of the fact that Article 7 has direct effect.

37.      Third, no rights can arise where they are based on fraudulent representations. That is the case, for example, of a right of residence purportedly based on marriage where, in fact, the marriage is a sham. (9) I should stress, though, that there is no question of a marriage of convenience in this case.

38.      Fourth, the initial decision as to whether to allow a member of the family to enter and reside with a Turkish worker in a Member State is a matter for that State. (10) The host State is entitled to attach conditions to such entry and residence and thereby regulate that person’s stay until he becomes entitled to respond to any offer of employment. (11)

 The conditions a Member State may impose as regards the right of residence during the three-year period referred to in the first indent of Article 7, first paragraph

39.      What conditions can a Member State impose as regards the requirement that, in order for rights to arise under the first indent of Article 7, first paragraph, the family member must have been ‘legally resident’ in the host Member State for at least three years?

40.      In their written observations, the German and Italian Governments argue that the conditions which a Member State may attach to the family member’s entry and residence are unfettered. The Netherlands Government adopts a more nuanced position. It accepts that limitations exist as to the nature of the conditions that may be set. It does not, however, consider that a condition as to marriage, of the kind imposed on Ms Pehlivan, falls within those limitations.

41.      I take a different view.

42.      It is clear from the Court’s case-law that the right of Member States to impose conditions in these circumstances is not an unlimited one. As the Court held in Kadiman, (12) the power vested in the Member States is one ‘to subject that right of residence to conditions of such a kind as to ensure that the presence of the family member in its territory is in conformity with the spirit and purpose of the first paragraph of Article 7 of Decision No 1/80’. (13)

43.      What is the ‘spirit and purpose’ of the first paragraph of Article 7?

44.      In general terms, the Court has held that the purpose of that provision is to ‘favour employment and residence of Turkish workers duly registered as belonging to the labour force of a Member State by ensuring that their family links are maintained there’. (14) Similarly, it has stated that ‘the system established by the first paragraph of Article 7 is designed to create conditions conducive to family unity in the host Member State, first by enabling family members to be with a migrant worker and then by consolidating their position by granting them the right to obtain employment in that State’. (15) In Eyüp, (16) it used the expression ‘de facto family unity in the host Member State’. (17)

45.      The Court has given practical expression to that objective by referring to conditions enabling ‘the family to be together’, and to the requirement that ‘the unity of the family, in pursuit of which the person concerned entered the territory of the Member State concerned, should be evidenced for a specified period by actual cohabitation in a household with the worker and that this must be so until he or she becomes entitled to enter the labour market in that State’. (18) More succinctly, it has stated that the worker and the family member concerned must ‘live under the same roof’. (19)

46.      Does Ms Pehlivan’s marriage during the three-year period in question affect her position? In other words, can it be said that she ceased to be one of the ‘members of the family of a Turkish worker’ by virtue of that act, thereby losing any rights she would otherwise have?

47.      In my opinion, to see the question as being capable of being answered by a simple ‘yes’ or ‘no’ is misconceived. The true question is not ‘did the person concerned marry?’ There can, I suggest, be no irrebuttable presumption that marriage will inevitably result in rights under the first indent of Article 7, first paragraph, being lost. Rather, the question is ‘did the marriage result in the family ties with the Turkish worker being lost?’

48.      In that regard, it seems to me that it is entirely possible for the family ties to be retained following a marriage. It is, after all, the case that a significant number of couples live together with their families following their marriage. It is not uncommon for three, or even, four generations to live together under the same roof. Any decision in this connection is likely to revolve around the social and/or economic circumstances of those concerned. In the case of families trying to make their way in a country that is not their own, it will often be a combination of these that will dictate the choice. Family ties are likely to be strong and money will often be short. There can, I suggest, be no binding rule as to what constitutes a separate family. It will be a question of fact, to be decided on a case-by-case basis, whether the family ties are maintained following the marriage. All relevant factors must be weighed in the balance.

49.      While it will ultimately be a matter for the national court to resolve, there is nothing in the order for reference to suggest that, in Ms Pehlivan’s case, the family ties were not maintained. The order states that she entered the Netherlands on 11 May 1999 and lived with her parents there from 12 August 1999. Although she married in Turkey on 22 December 2000 and her husband lived with her at her parents’ residence in the Netherlands, he did so only for a period of nine months (from June 2002) before being deported. A year later, on 10 February 2004, the marriage was dissolved. Ms Pehlivan continued to live with her parents (at various addresses) until 1 April 2005, (20) when she and her son moved. At no stage during the three-year period for the acquisition of rights under Article 7 did Ms Pehlivan cease to live under the same roof as her parents in the Netherlands.

50.      It seems to me that the approach that I propose is reflected in the relevant case-law. Eyüp, as here, involved the effect of marriage on rights arising under Article 7. (21) That case involved the wife of a Turkish worker who had been duly registered as belonging to the Austrian labour force. She joined him in that Member State. Two years later, the couple divorced, but continued to cohabit, as was evidenced by the fact that they had four children together after the separation. While they subsequently remarried, they did not do so until well after the end of the three-year period for acquiring rights under Article 7. In holding that the wife had not lost her rights under that article, the Court essentially disregarded the effect of the divorce on her right to remain in the Member State concerned. It observed that the couple’s conduct was ‘permanently in accordance with the objective underlying [Article 7], namely de facto family unity in the host Member State’. (22)

51.      Applying that reasoning to a person in the situation of Ms Pehlivan, I do not consider that her change in marital status should affect her rights under Article 7 in any way.

52.      It is true, as the Netherlands Government points out in its written observations, that the Court in Eyüp also noted that the competent national authorities did not challenge the wife’s right of residence during the period of cohabitation. (23) However, I understand that observation to have been made in passing and not to form part of the Court’s essential reasoning in that case, which was founded on the continuing cohabitation of the couple concerned.

53.      All of these considerations lead me to the view that a condition of the kind referred to in Question 1b, whereby the national authorities may automatically withdraw the right of residence of a family member who marries during the three-year period for acquiring rights under Article 7, cannot validly be imposed.

54.      Are there any matters which require me to qualify or to depart from that view?

55.      First, does the fact that the Court has held that regard may be had to Regulation No 1612/68 (24) in construing Article 7 (25) affect the reasoning I have set out above?

56.      I do not believe that it does.

57.      Under Article 10 of that regulation, the family members entitled to ‘install’ themselves with a worker who is a national of one Member State and is employed in another State are (a) his or her spouse and their descendants who are under the age of 21 years or are dependants and (b) dependant relatives in the ascending line of the worker and his spouse. Article 11 gives the right to take up activity as an employed person in a Member State in which a national of a Member State is working to his or her spouse and those of his children ‘who are under the age of 21 years or dependant on him’. Applying the provisions of these articles to the interpretation of Article 7 of Decision No 1/80, the Italian Government argues that a person who is 21 or older should not be classified as a family member unless he or she is dependant on the worker in question. (26)

58.      Although the Court has had regard to Regulation No 1612/68 in construing Article 7 of Decision No 1/80, it has also pointed out that the use of that regulation as an aid to the interpretation of Article 7 is limited. (27) In particular, Article 10 of the regulation provides an unconditional right in favour of the family members of an EU national to install themselves with a parent who is working in another Member State. In contrast, Article 7 provides only a restricted right which requires, as a minimum, that authorisation to enter and reside be granted by the national authorities of the State concerned. Whereas Article 11 of the regulation allows family members to enter into an employment relationship immediately they arrive, the equivalent right under Article 7 is limited by the requirement to spend a period of three years in the Member State before doing so. The general context of the rules may be similar in each case; the particular context is not.

59.      I also note that when the Court was called upon in Diatta to consider the meaning of the word ‘install’ under Article 10 of the regulation, it expressly held that ‘a requirement that the family must live under the same roof permanently cannot be implied [into the regulation]’,(28) whereas it is precisely this condition that the Court has imposed in the case of family members of a Turkish worker claiming rights under Article 7. 

60.      Thus, it seems to me that the divergence between the wording, the purposes and the interpretation of Articles 10 and 11 of Regulation No 1612/68 and Article 7 of Decision No 1/80 is such that no useful guidance can be drawn from the former as to the interpretation of the latter in this case.

61.      Second, the Italian Government argues that to interpret Article 7 in a way which does not precisely reflect the provisions of Regulation No 1612/68 would give those benefiting under Article 7 more favourable treatment than their European Union counterparts. Such a result is precluded by Article 59 of the Additional Protocol.

62.      I do not share this point of view.

63.      It is clear from the Court’s case-law that Article 59 of the Additional Protocol cannot be construed in that narrow way. Rather than looking to precise equivalence in terms of the rights granted to Turkish citizens and those granted to those of the Union, it is necessary to have regard to the overall picture. (29) The rights of the former under Decision No 1/80 are in many ways more restricted than those available to the latter under European Union law generally. (30) Seen from that perspective, I do not consider that to interpret Article 7 in the manner I propose will result in Article 59 being infringed.

64.      Third, the Netherlands Government calls in aid Directive 2003/86. (31) It notes that the provisions in Article 4(2)(b) and Article 4(3) of that directive, whereby the Member States may authorise family members to enter in and reside in their territory, do not extend to the married children of the sponsor. (32) This, it argues, means that the legislature, by enacting that directive, and, by extension, generally, takes the view that the concept of family reunification should not apply to children who are married.

65.      Once again, I can draw no useful guidance from the provisions of this piece of Community legislation. Dealing as it does with the exercise of the general right to family reunification by third-country nationals residing in the territory of the Member States, (33) its scope is very much wider than that of Article 7. It is therefore to be expected that its application may be narrower. Furthermore, Article 3(4) of the directive expressly states that it is without prejudice to more favourable provisions of, inter alia, ‘bilateral agreements … between the Community or the Community and its Member States, on the one hand, and third countries, on the other’. Such bilateral agreements obviously include the Association Agreement and Decision No 1/80. If the provisions of the latter are more favourable, they will prevail.

66.      Fourth, is my conclusion affected by the fact that, as the German Government points out in its written observations, the Court has interpreted the requirement that the parties live under the same roof in a manner which allows for some exceptions to the need for actual cohabitation in the same place?

67.      I do not think so.

68.      It is true that the Court held in Kadiman  (34) that objective circumstances such as the family member’s distance from employment or vocational training might justify a failure to live under the same roof. (35) However, I do not understand this to represent a departure from the requirement that, so far as possible and practicable, there be actual cohabitation. Rather, I interpret it as an indication of the breadth of the Court’s approach to the notion. In other words, where appropriate, the emphasis may be on the spirit rather than the letter of that requirement.

69.      Finally, completeness requires that I address the issue of what conditions a Member State may impose in order for a family member to be ‘legally resident’ for the purposes of Article 7. In response to a question put by the Court at the hearing, the Commission appeared to argue that, once the decision had been made to authorise entry, the only condition (other than a purely administrative condition) a host State may impose in relation to the notion of legal residence is that of cohabitation.

70.      I do not agree.

71.       It is, of course, plain that the host Member State can require that the family member live under the same roof as the Turkish worker he has come to join. That is the obvious substantive condition that may be imposed and is an inevitable result of the Court’s case-law in that regard. (36) As the right to take up employment under Article 7 arises only at the end of the three-year period, it must also be open to the national authorities to impose the substantive condition that, during the qualifying period, employment is not taken up.

72.      It follows that a Member State may require of the family member that he comply with administrative conditions designed to monitor and verify that those two substantive conditions are fulfilled: both that there is cohabitation and that the family member is not, in fact, working. It also seems to me that it is open to the host State to check at appropriate intervals that the grounds on which authorisation to enter and reside was granted in the first place were indeed satisfied and continue to be satisfied. In the case of a person granted entry to the host State on the basis that he (or she) is to join their spouse there (which is, of course, not the situation in the present case), it would in my view be in order for that State to impose conditions designed to establish that the marriage is not purely one of convenience. (37) An administrative condition requiring registration with the relevant authorities on arrival and continuing renewal of that registration would also not be out of place. A condition requiring the family member to renew his residence permit on its expiry will plainly be in order.

73.      It also seems to me that it will be in order for a Member State to impose what I might term a ‘public order condition’ that family members comply with rules relating to public policy, public security and public health during their residence. This reflects Article 14(1) of Decision No 1/80, which provides that the provisions of Section I of the decision are to be applied ‘subject to limitations justified on grounds of public policy, public security and public health’.

74.      In the light of the foregoing considerations, I propose that the answer the Court should give to Question 1b is that the first indent of the first paragraph of Article 7 of Decision No 1/80 must be interpreted as preventing a Member State from stipulating during the three-year period laid down in that provision that, if the family member who has been admitted marries, no further rights are acquired under that provision, even if the family member continues to live with the Turkish worker.

 Questions 1a and 2

75.      The answer that I propose to Question 1b is of itself sufficient to enable the national court to deal with Ms Pehlivan’s right of residence in the Netherlands. For the sake of completeness, I shall also address Questions 1a and 2.

76.      By those questions, the national court is essentially asking whether the competent national authorities may challenge a right of residence purportedly acquired under Article 7 once the three-year period for the acquisition of rights under that article has expired.

 The position prior to the expiry of the three-year period referred to in the first indent of Article 7, first paragraph

77.      Questions 1a and 2 raise only indirectly the issue of the circumstances in which a host Member State may expel a family member who has been authorised to enter a host State as a family member, but has not yet acquired rights under the first indent of Article 7, first paragraph. The issue was, however, extensively discussed both in Ms Pehlivan’s written observations and again at the hearing. I shall therefore address it briefly.

78.      Here, once again, the arguments were polarised. When asked to clarify its position at the hearing, the Commission stated that, once a family member has been authorised to enter a Member State under Article 7, there are no circumstances in which the Member State can expel him. The only sanction that may be imposed is one of an administrative nature. The Governments of the Member States take the opposite view, maintaining that any breach of conditions validly imposed by the host State can lead to expulsion.

79.      I cannot agree with either of these positions.

80.      In points 71 to 73 above, I specified the conditions which I consider a host State may validly impose. I divided these into three categories: substantive, administrative and public order.

81.      I can see no good reason why a Member State should not expel a family member who is plainly and irremediably in breach of a substantive condition. Such a person has shown himself to be manifestly incapable of keeping his side of the bargain on which the right of residence was based. That is, however, subject to the proviso that the requirements of the European Convention on Human Rights must be observed. (38) It was submitted on Ms Pehlivan’s behalf that an expulsion in breach of that line of case-law could not be valid. I agree.

82.      In the case of administrative conditions, any sanction relating to breach must be proportionate. Thus, in Ergat, (39) the Court stated that ‘in [connection with the power of the Member States to impose penalties for breach of administrative obligations], it follows from settled case-law on the subject of failure to comply with the formalities required to establish the right of residence of an individual enjoying the protection of Community law that, whilst Member States are entitled to make failure to comply with such provisions subject to penalties comparable to those attaching to minor offences committed by their own nationals, they are not entitled to impose a disproportionate penalty that would create an obstacle to that right of residence …’ It went on to observe that ‘that applies in particular to a sentence of imprisonment and, a fortiori, to deportation, which negates the very right of residence conferred and guaranteed by Decision No 1/80 …’

83.      As regards contravention of a public order condition, Article 14(1) of Decision No 1/80 must apply. The terms of the Court’s case-law relating to the implementation of that condition must be observed. (40) In this context, as well, the principle of proportionality must be observed. To put the point at its simplest, if a family member were to be convicted of a relatively minor speeding offence, it would be wholly disproportionate to seek to expel him as a result.

84.      Completeness also requires that I address the issue of legal certainty at this stage. That principle requires that rules of law be clear, precise and predictable in their effects, particularly where they may have negative consequences on individuals. The point was discussed at some length at the hearing and is in any event deserving of an answer.

85.      Although required to do so immediately, Ms Pehlivan did not inform the national authorities of her marriage until May 2002, that is to say, some 16 months after it took place. (41)

86.      She stated at the hearing that, had her right of entry into the Netherlands been based on her marital status, that would have been clearly marked on her residence permit issued on entry. It would have been clear, by necessary implication if nothing else, that any change in her marital status would require to be notified to the competent authorities. However, as I understand Ms Pehlivan’s position (and I do not understand any of the other parties to have argued otherwise at the hearing), the significance of her status as a single person was nowhere apparent on the face of the residence permit issued to her when she entered the Netherlands.

87.      Rather, it appeared that the requirement for Ms Pehlivan to notify her change of status was a matter to be gleaned from the Vc 2000, and in particular Part B2/8.3 thereof. (42) Indeed, it would appear from that document that an identical situation arises when the person concerned gives birth to a child, as Ms Pehlivan did during the three-year period in question. The Vc 2000 is a bulky document. It does not form part of the national legislation governing rights of residence. It was described by the Netherlands Government at the hearing as an ‘administrative document’ containing policy guidance for officials in applying the law. There was, as I understand it, no serious suggestion that it would be anything other than very difficult, and even impossible, for a lay person such as Ms Pehlivan to access and understand its contents.

88.      That being so, I cannot see how it can properly be suggested that Ms Pehlivan was supposed to realise that she should notify her marriage to the Netherlands authorities. The failure to make it clear to her that she was under a duty to do so plainly contravenes the requirement of legal certainty. There can be neither clarity nor precision in the contents of a document (the Vc 2000) which is, for practical purposes, inaccessible to a lay person in Ms Pehlivan’s position. The principle of legal certainty was accordingly breached in this regard.

 The position after the expiry of the three-year period referred to in the first indent of Article 7, first paragraph

89.      I deal with this issue in the abstract – on the view that I have taken, it does not affect Ms Pehlivan’s position. Let us suppose that the three-year period referred to in the first indent of Article 7, first paragraph, has expired. The family member concerned has broken one of the conditions applying to his residence during the period in question, but the host State does not become aware of the breach until later on. Can the Member State take action in respect of the breach retroactively? In particular, can the host State expel the person concerned? Is there any merit in the argument that the Member State is acting too late?

90.      Each of the Member States which has submitted observations takes the view that the time of challenge by the national authorities is irrelevant.

91.      For their part, Ms Pehlivan and the Commission take the opposite view. Once the three-year period has expired, the family member concerned has rights under Article 7 that are autonomous and can no longer be challenged.

92.      I do not think that can be right.

93.      The first indent of Article 7 requires that the family member concerned should have been ‘legally resident for at least three years in that Member State’. It follows that the test is not whether the person in question has been resident, but whether he has been legally resident. By that expression, I understand the authors of Decision No 1/80 to have intended to mean that the person should have complied with the substantive conditions attached to that person’s right of residence on his entry to the territory of the Member State concerned and on any subsequent renewal of that right of residence. It cannot be that, by merely residing in the territory of that State, without more, a person can acquire rights.

94.      The Court has not ruled on this point in relation to Article 7. However, a similar issue arose in Kol, (43) in relation to Article 6 of Decision No 1/80, where the interpretation of the expression ‘legal employment’ under that article was at issue. The Court held that a worker could not acquire rights under that article during a period in respect of which a false declaration had been made. His residence permit was accordingly likely to be rescinded when the false declaration was discovered. (44)

95.      There is nothing in the order for reference, however, to suggest that issues of fraud arise in Ms Pehlivan’s case. In particular, there is nothing to indicate that the marriage was a sham. Nor, given the views I have expressed at point 88 above, can it be said that there was a failure to communicate information. In its observations, the German Government suggests that this failure is evidence of deceit. I can see no basis for that suggestion and accordingly reject it.

96.      Ms Pehlivan contends that the principle of legitimate expectations precludes a Member State from withdrawing a right of residence once the three-year period has expired. However, the expectation to which a family member is legitimately entitled is that he will be entitled to claim rights under the first indent of that article following three years of legal residence. Ms Pehlivan’s observations therefore seem to me to be misconceived.

97.      Question 2 asks whether there is ‘any other principle of European law’ which would prevent the competent national authorities from challenging a right of residence purportedly acquired under Article 7 once the three-year period for the acquisition of rights under that article has expired.

98.      I have already referred above to the requirement to comply with the European Convention on Human Rights, and the fundamental principles of proportionality, legal certainty and legitimate expectations. All of these may circumscribe the national authorities’ freedom to take a particular form of action in particular circumstances. They do not, in my view, affect the principle that such a right of residence may be challenged after the expiry of that three-year period.

99.      As indicated in point 75 above, I believe that the answer I propose to Question 1b is sufficient to enable the national court to deal with Ms Pehlivan’s right of residence in the Netherlands. In the event, however, that the Court considers it necessary to address Questions 1a and 2, the answer I propose is that the first paragraph of Article 7 of Decision No 1/80 does not prevent the competent national authorities from challenging a right of residence purportedly acquired under Article 7 once the three-year period for the acquisition of rights under that article has expired.

 Questions 3a and 3b

100. Given the answers that I have proposed to Questions 1 and 2, it is not necessary to address these questions.

 Conclusion

101. I therefore propose that the Court answer the questions referred by the Rechtbank ’s-Gravenhage as follows:

(1)      The answer to Question 1b is that the first indent of the first paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council must be interpreted as preventing a Member State from stipulating during the three-year period laid down in that provision that, if the family member who has been admitted marries, no further rights are acquired under that provision, even if the family member continues to live with the Turkish worker.

(2)      In the event that the Court considers it necessary to address Questions 1a and 2, the answer to those questions is that the first paragraph of Article 7 of Decision No 1/80 does not prevent the competent national authorities from challenging a right of residence purportedly acquired under Article 7 once the three-year period for the acquisition of rights under that article has expired.

(3)      It is, in any event, not necessary to answer Questions 3a or 3b.

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1 – Original language: English

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2 – Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council created under the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963.

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3 – Agreement establishing an association between the EEC and Turkey, signed at Ankara on 12 September 1963.

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4 – Additional Protocol signed at Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1972 L 293, p. 1; no official translation has been published in English).

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5 – This is the date recorded in the order for reference. Although doubt is cast on its accuracy in the written observations of the Netherlands Government, it does not appear to be in dispute that Ms Pehlivan lived with her parents for at least three years following the delivery of her residence permit.

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6 – Decision No 2/76 of the Association Council of 20 December 1976 on the implementation of Article 12 of the Association Agreement.

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7 – See, inter alia, Case C‑325/05 Derin [2007] ECR I‑6495, paragraph 47.

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8 – Case C‑275/02 Ayaz [2004] ECR I‑8765, paragraphs 38 and 39.

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9 – See Case C‑285/95 Kol [1997] ECR I‑3069, paragraph 25.

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10 – Case C‑351/95 Kadiman [1997] ECR I‑2133, paragraphs 31 and 32.

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11 – Ibid., paragraph 32.

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12 – Ibid., paragraph 33.

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13 – Emphasis added.

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14 – See Kadiman, cited in footnote 10 above, paragraph 34.

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15 – See Kadiman, cited in footnote 10 above, paragraph 36; Ayaz, cited in footnote 8 above, paragraph 41; and Case C‑467/02 Cetinkaya [2004] ECR I‑10895, paragraph 25.

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16 – Case C‑65/98 [2000] ECR I‑4747.

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17 – Paragraph 34.

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18 – See, inter alia, Kadiman, cited in footnote 10 above, paragraphs 35, 37 and 40, and Eyüp, cited in footnote 16 above, paragraph 28.

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19 – See Kadiman, cited in footnote 10 above, paragraph 42.

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20 – At least according to the order for reference. See footnote 5 above.

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21 – Cited in footnote 16 above.

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22 – Paragraph 34.

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23 – Ibid., paragraph 35.

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24 – Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), as amended. With effect from 30 April 2006, Articles 10 and 11 of that regulation were repealed and replaced by Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, with corrigendum OJ 2004 L 229, p. 35).

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25 – See Ayaz, cited in footnote 8 above, paragraph 45.

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26 – Ms Pehlivan argues in her written observations that she was at all relevant times dependant on her parents. It was only on 1 April 2005, when she took up separate residence, that she received payment from the social security services. Since the national court does not address the question of Ms Pehlivan’s dependency in the order for reference, and given the position I have adopted in relation to the applicability of Regulation No 1612/68 to the questions referred, I shall not consider this issue further.

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27 – See Derin, cited in footnote 7 above, paragraph 68.

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28 – Case 267/83 [1985] ECR 567, paragraph 18.

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29 – See, to that effect, Derin, cited in footnote 7 above, paragraphs 69 to 71.

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30 – See Case C‑373/03 Aydinli [2005] ECR I‑6181, paragraph 31. For a fuller analysis of the role of Article 59 of the Additional Protocol in the context of Article 7, see my Opinion in Case C‑303/08 Bozkurt delivered on the same date as this Opinion, point 48 et seq.

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31 – Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12).

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32 – Defined in Article 2(c) of Directive 2003/86 as meaning ‘a third-country national residing lawfully in a Member State and applying or whose family members apply for family reunification to be joined with him/her’.

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33 – Article 1 of Directive 2003/86.

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34 – Cited in footnote 10 above.

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35 – See paragraph 42.

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36 – See point 44 et seq.

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37 – I do not wish to draw unduly on other European Union legislation, since I take the view that it would be wrong to regard that legislation as being limitative in its approach, but I note in that regard that Article 16(4) of Directive 2003/86 authorises the Member States to ‘conduct specific checks and inspections where there is reason to suspect that there is fraud or a marriage … of convenience … Specific checks may also be undertaken on the occasion of the renewal of family members’ residence permit[s]’.

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38 – Ms Pehlivan referred to Article 8 of the Convention on the right to respect for family life and, in particular, to the judgment of the European Court of Human Rights of 21 December 2001 in Sen v Netherlands, application No 31465/46. I agree that this line of that Court’s case-law is relevant to a person in her situation.

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39 – Case C‑329/97 [2000] ECR I‑1487, paragraphs 56 and 57.

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40 – For a fuller analysis of Article 14(1) of Decision No 1/80 and the case-law relating thereto, see my Opinion in Case C‑303/08 Bozkurt, delivered on the same date as this Opinion, point 71 et seq.

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41 – See point 18 above.

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42 – Cited in point 15 above.

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43 – Cited in footnote 9 above.

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44 – Paragraph 26.