61983J0267

1 . FREE MOVEMENT OF PERSONS - WORKERS - RIGHT OF RESIDENCE OF FAMILY - NO REQUIREMENT THAT THE FAMILY MUST LIVE UNDER THE SAME ROOF PERMANENTLY - INDEPENDENT RIGHT OF RESIDENCE UNDER ARTICLE 11 OF REGULATION NO 1612/68 - NONE

( COUNCIL REGULATION ( EEC ) NO 1612/68 , ARTS 10 AND 11 )

2 . FREE MOVEMENT OF PERSONS - WORKERS - RIGHT OF RESIDENCE OF FAMILY - SPOUSE - HUSBAND AND WIFE LIVING SEPARATELY

( COUNCIL REGULATION ( EEC ) NO 1612/68 , ART . 10 )

1 . THE RIGHT OF RESIDENCE PROVIDED FOR IN ARTICLE 10 OF REGULATION NO 1612/68 FOR THE MEMBERS OF A MIGRANT WORKER ' S FAMILY IS SUBJECT TO THE REQUIREMENT LAID DOWN IN ARTICLE 10 ( 3 ) THAT THE ACCOMMODATION WHICH THE WORKER HAS AVAILABLE MUST BE SUCH AS MAY BE CONSIDERED NORMAL FOR THE PURPOSE OF ACCOMMODATING HIS FAMILY . HOWEVER , IT IS NOT CONDITIONAL ON ANY REQUIREMENT THAT THE FAMILY MUST LIVE UNDER THE SAME ROOF PERMANENTLY .

ARTICLE 11 OF REGULATION NO 1612/68 CONFERS ON THE MEMBERS OF A MIGRANT WORKER ' S FAMILY ONLY A RIGHT TO EXERCISE ANY ACTIVITY AS EMPLOYED PERSONS THROUGHOUT THE TERRITORY OF THE HOST STATE . IT CANNOT THEREFORE CONSTITUTE THE LEGAL BASIS FOR A RIGHT OF RESIDENCE WITHOUT REFERENCE TO THE CONDITIONS LAID DOWN IN ARTICLE 10 .

2 . FOR THE PURPOSES OF ARTICLE 10 OF REGULATION NO 1612/68 , WHICH PROVIDES FOR THE RIGHT OF A MIGRANT WORKER ' S SPOUSE TO INSTALL HERSELF WITH HIM , THE MARITAL RELATIONSHIP CANNOT BE REGARDED AS DISSOLVED SO LONG AS IT HAS NOT BEEN TERMINATED BY THE COMPETENT AUTHORITY . IT IS NOT DISSOLVED MERELY BECAUSE THE SPOUSES LIVE SEPARATELY , EVEN WHERE THEY INTEND TO DIVORCE AT A LATER DATE .

IN CASE 267/83

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESVERWALTUNGSGERICHT ( FEDERAL ADMINISTRATIVE COURT ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

AISSATOU DIATTA , A SENEGALESE NATIONAL RESIDING IN WEST BERLIN ,

AND

LAND BERLIN , REPRESENTED BY THE POLIZEIPRASIDENT ( CHIEF COMMISSIONER OF POLICE ), BERLIN ,

ON THE INTERPRETATION OF ARTICLES 10 AND 11 OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ,

1 BY AN ORDER DATED 18 OCTOBER 1983 , WHICH WAS RECEIVED AT THE COURT ON 5 DECEMBER 1983 , THE FIRST SENATE OF THE BUNDESVERWALTUNGSGERICHT ( FEDERAL ADMINISTRATIVE COURT ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF ARTICLES 10 AND 11 OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ).

2 THE QUESTIONS AROSE IN A DISPUTE BETWEEN MRS DIATTA , A SENEGALESE NATIONAL , AND THE LAND BERLIN , REPRESENTED BY THE POLIZEIPRASIDENT ( CHIEF COMMISSIONER OF POLICE ).

3 MRS DIATTA MARRIED A FRENCH NATIONAL WHO RESIDES AND WORKS IN BERLIN . SHE HAS WORKED CONTINUOUSLY IN BERLIN SINCE FEBRUARY 1978 .

4 AFTER LIVING WITH HER HUSBAND FOR SOME TIME , SHE SEPARATED FROM HIM ON 29 AUGUST 1978 WITH THE INTENTION OF DIVORCING AND HAS LIVED SINCE IN SEPARATE ACCOMMODATION .

5 ON THE EXPIRY OF HER RESIDENCE PERMIT , MRS DIATTA REQUESTED AN EXTENSION . BY A DECISION OF 29 AUGUST 1980 , THE POLIZEIPRASIDENT REJECTED THAT REQUEST ON THE GROUNDS THAT MRS DIATTA WAS NO LONGER A MEMBER OF THE FAMILY OF A NATIONAL OF A MEMBER STATE OF THE EEC AND THAT SHE DID NOT LIVE WITH HER HUSBAND . THAT REFUSAL WAS UPHELD BY THE VERWALTUNGSGERICHT ( ADMINISTRATIVE COURT ) ON THE GROUND THAT THE SPOUSES DID NOT LIVE TOGETHER . ON THE OTHER HAND , THE VERWALTUNGSGERICHT TOOK THE VIEW THAT THE FAMILY RELATIONSHIP STILL EXISTED . MRS DIATTA APPEALED AGAINST THAT DECISION TO THE OBERVERWALTUNGSGERICHT ( HIGHER ADMINISTRATIVE COURT ) AND , FOLLOWING THE DISMISSAL OF THAT APPEAL , TO THE BUNDESVERWALTUNGSGERICHT .

6 THE BUNDESVERWALTUNGSGERICHT REFERRED TO THE COURT THE FOLLOWING QUESTIONS :

( 1 ) IS ARTICLE 10 ( 1 ) OF REGULATION ( EEC ) NO 1612/68 TO BE INTERPRETED AS MEANING THAT THE SPOUSE OF A WORKER WHO IS A NATIONAL OF A MEMBER STATE AND WHO IS EMPLOYED IN THE TERRITORY OF ANOTHER MEMBER STATE MAY BE SAID TO LIVE ' WITH THE WORKER ' IF SHE HAS IN FACT SEPARATED FROM HER SPOUSE PERMANENTLY BUT NONE THE LESS LIVES IN HER OWN ACCOMMODATION IN THE SAME PLACE AS THE WORKER?

( 2)DOES ARTICLE 11 OF REGULATION ( EEC ) NO 1612/68 ESTABLISH FOR A SPOUSE WHO , THOUGH NOT A NATIONAL OF A MEMBER STATE , IS MARRIED TO A NATIONAL OF A MEMBER STATE WHO WORKS AND LIVES IN THE TERRITORY OF ANOTHER MEMBER STATE A RIGHT OF RESIDENCE WHICH DOES NOT DEPEND ON THE CONDITIONS SET OUT IN ARTICLE 10 OF THAT REGULATION , IF THE SPOUSE WISHES TO PURSUE AN ACTIVITY AS AN EMPLOYED PERSON IN THE TERRITORY OF THAT MEMBER STATE?

7 THE TWO QUESTIONS REFERRED TO THE COURT BY THE BUNDESVERWALTUNGSGERICHT ARE INTENDED TO ESTABLISH WHETHER THE MEMBERS OF A MIGRANT WORKER ' S FAMILY , AS DEFINED IN ARTICLE 10 OF REGULATION NO 1612/68 , ARE NECESSARILY REQUIRED TO LIVE WITH HIM PERMANENTLY IN ORDER TO QUALIFY FOR A RIGHT OF RESIDENCE UNDER THAT PROVISION , AND WHETHER ARTICLE 11 OF THAT REGULATION ESTABLISHES A RIGHT OF RESIDENCE INDEPENDENT OF THAT PROVIDED FOR IN ARTICLE 10 .

8 ARTICLE 10 OF REGULATION NO 1612/68 PROVIDES THAT :

' ( 1 ) THE FOLLOWING SHALL , IRRESPECTIVE OF THEIR NATIONALITY , HAVE THE RIGHT TO INSTALL THEMSELVES WITH A WORKER WHO IS A NATIONAL OF ONE MEMBER STATE AND WHO IS EMPLOYED IN THE TERRITORY OF ANOTHER MEMBER STATE :

( A ) HIS SPOUSE AND THEIR DESCENDANTS WHO ARE UNDER THE AGE OF 21 YEARS OR ARE DEPENDANTS ;

( B)DEPENDENT RELATIVES IN THE ASCENDING LINE OF THE WORKER AND HIS SPOUSE .

( 2)MEMBER STATES SHALL FACILITATE THE ADMISSION OF ANY MEMBER OF THE FAMILY NOT COMING WITHIN THE PROVISIONS OF PARAGRAPH 1 IF DEPENDENT ON THE WORKER REFERRED TO ABOVE OR LIVING UNDER HIS ROOF IN THE COUNTRY WHENCE HE COMES .

( 3)FOR THE PURPOSES OF PARAGRAPHS 1 AND 2 , THE WORKER MUST HAVE AVAILABLE FOR HIS FAMILY HOUSING CONSIDERED AS NORMAL FOR NATIONAL WORKERS IN THE REGION WHERE HE IS EMPLOYED ; THIS PROVISION , HOWEVER MUST NOT GIVE RISE TO DISCRIMINATION BETWEEN NATIONAL WORKERS AND WORKERS FROM THE OTHER MEMBER STATES . '

9 ARTICLE 11 OF THAT REGULATION STATES THAT :

' WHERE A NATIONAL OF A MEMBER STATE IS PURSUING AN ACTIVITY AS AN EMPLOYED OR SELF-EMPLOYED PERSON IN THE TERRITORY OF ANOTHER MEMBER STATE , HIS SPOUSE AND THOSE OF THE CHILDREN WHO ARE UNDER THE AGE OF 21 YEARS OR DEPENDENT ON HIM SHALL HAVE THE RIGHT TO TAKE UP ANY ACTIVITY AS AN EMPLOYED PERSON THROUGHOUT THE TERRITORY OF THAT SAME STATE , EVEN IF THEY ARE NOT NATIONALS OF ANY MEMBER STATE . '

10 MRS DIATTA , THE PLAINTIFF IN THE MAIN PROCEEDINGS , ARGUES THAT ARTICLE 10 DOES NOT REFER EXPRESSLY TO CO-HABITATION ; IT MERELY REQUIRES THE MIGRANT WORKER TO MAKE AVAILABLE TO THE MEMBERS OF HIS FAMILY ACCOMMODATION ' CONSIDERED AS NORMAL ' . THE PROVISION IS INTENDED TO IMPLEMENT PUBLIC POLICY AND TO PROTECT PUBLIC SECURITY BY PREVENTING THE IMMIGRATION OF PERSONS WHO WOULD HAVE TO LIVE IN PRECARIOUS CONDITIONS . HOWEVER , THAT DOES NOT MEAN THAT THE SPOUSE OR ANOTHER MEMBER OF THE FAMILY CANNOT OBTAIN ADDITIONAL SPACE BY RENTING SEPARATE ACCOMMODATION . MOREOVER , REGULATION NO 1612/68 CANNOT BE INTERPRETED AS REQUIRING A MARRIED COUPLE TO LIVE TOGETHER . IT IS NOT FOR THE IMMIGRATION AUTHORITIES TO DECIDE WHETHER A RECONCILIATION IS STILL POSSIBLE . MOREOVER , IF CO-HABITATION OF THE SPOUSES WERE A MANDATORY CONDITION , THE WORKER COULD AT ANY MOMENT CAUSE THE EXPULSION OF HIS SPOUSE BY DEPRIVING HER OF A ROOF . FINALLY , ARTICLE 11 OF THE REGULATION ESTABLISHES A MORE EXTENSIVE RIGHT OF RESIDENCE THAN ARTICLE 10 AND IS NECESSARILY BASED ON THE ASSUMPTION THAT IT IS POSSIBLE TO CHOOSE TO LIVE IN SEPARATE ACCOMMODATION .

11 ACCORDING TO THE LAND BERLIN , THE DEFENDANT IN THE MAIN PROCEEDINGS , THE SOLE AIM OF ARTICLE 10 OF REGULATION NO 1612/68 IS TO PROTECT MIGRANT WORKERS AND TO GUARANTEE THEIR MOBILITY BY ENABLING THEM TO MAINTAIN THEIR FAMILY TIES . IN CONSEQUENCE THERE ARE NO GROUNDS FOR GRANTING A RIGHT OF RESIDENCE TO THE MEMBERS OF THEIR FAMILIES WHERE THAT RIGHT IS NOT DERIVED FROM THE FACT THAT THEY LIVE TOGETHER . AS FOR ARTICLE 11 , THAT PROVISION ESTABLISHES NOT A RIGHT OF RESIDENCE BUT SOLELY A RIGHT TO WORK .

12 FURTHERMORE , ACCORDING TO THE GOVERNMENTS OF THE FEDERAL REPUBLIC OF GERMANY , THE UNITED KINGDOM AND THE NETHERLANDS , IT IS CLEAR FROM THE LETTER AND SPIRIT OF ARTICLE 10 OF THE REGULATION THAT THE SPOUSE ' S RIGHT OF RESIDENCE EXISTS ONLY IF SHE LIVES IN THE MIGRANT WORKER ' S HOME . THE FIFTH RECITAL IN THE PREAMBLE TO REGULATION NO 1612/68 SHOWS THAT THE PURPOSE OF THAT REGULATION IS TO ENABLE THE WORKER TO LIVE WITH HIS FAMILY . THERE CAN BE NO QUESTION OF THAT WHERE THE SPOUSES STOP LIVING TOGETHER . ARTICLES 10 AND 11 OF REGULATION NO 1612/68 TAKE INTO ACCOUNT THE TWO ASPECTS OF THE LEGAL POSITION ENVISAGED IN ARTICLE 48 ( 3 ) OF THE EEC TREATY , NAMELY THE RIGHT TO WORK AND THE RIGHT OF RESIDENCE . THAT INTERPRETATION IS SUPPORTED BY THE HISTORY OF ARTICLES 10 AND 11 OF REGULATION NO 1612/68 , WHICH WERE BASED ON ARTICLES 17 AND 18 OF REGULATION NO 38/64 OF THE COUNCIL OF 25 MARCH 1964 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( JOURNAL OFFICIEL 1964 , NO 62 , P . 965 ). ARTICLE 18 OF REGULATION NO 38/64 STATES CLEARLY THAT WHERE A MEMBER OF THE FAMILY DOES NOT HAVE THE LEGAL STATUS DEFINED IN ARTICLE 17 , HE HAS NO INDEPENDENT RIGHT OF RESIDENCE .

13 THE COMMISSION MAINTAINS THAT IT IS GENERALLY ACKNOWLEDGED THAT THE FUNDAMENTAL RIGHT TO FREE MOVEMENT PROVIDED FOR IN ARTICLE 48 ET SEQ . OF THE TREATY IS ALSO GRANTED TO MIGRANT WORKERS ' FAMILIES . IN THE COMMISSION ' S VIEW , IT IS NOT THEREFORE PERMISSIBLE TO MAKE THE RIGHT TO FREE MOVEMENT SUBJECT TO THE MANNER IN WHICH THE SPOUSES WISH TO CONDUCT THEIR MARRIED LIFE , BY REQUIRING THEM TO LIVE UNDER THE SAME ROOF . ATTITUDES TO MARITAL RELATIONSHIPS VARY ACCORDING TO THE MEMBER STATES AND INDIVIDUALS . THAT IS WHY ARTICLE 10 IMPOSES NO SUCH REQUIREMENT . ARTICLE 10 IS INTENDED SOLELY TO ENSURE THE EXISTENCE OF NORMAL ACCOMMODATION FOR IMMIGRANTS IN ORDER TO SATISFY THE REQUIREMENTS OF THE AUTHORITIES RESPONSIBLE FOR ALIENS WITH REGARD TO HYGIENE AND ACCOMMODATION . SIMILARLY , IT IS CLEAR FROM ARTICLE 4 ( 3 ) AND ( 4 ) OF COUNCIL DIRECTIVE NO 68/360/EEC OF 15 OCTOBER 1968 ON THE ABOLITION OF RESTRICTIONS ON MOVEMENT AND RESIDENCE WITHIN THE COMMUNITY FOR WORKERS OF MEMBER STATES AND THEIR FAMILIES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 485 ) THAT THE ISSUE OF A RESIDENCE PERMIT IS SUBJECT SOLELY TO THE OBJECTIVE REQUIREMENT OF MARRIAGE AND NOT TO THE ADDITIONAL REQUIREMENT OF A SHARED DWELLING . AT THE HEARING THE COMMISSION WENT FURTHER AND EXPRESSED THE VIEW THAT THE RIGHT OF RESIDENCE OF MEMBERS OF A MIGRANT WORKER ' S FAMILY AND THEIR RIGHT TO EXERCISE AN ACTIVITY AS EMPLOYED PERSONS THROUGHOUT THE TERRITORY OF THE HOST STATE WOULD NOT BE EXTINGUISHED IN THE EVENT OF SEVERANCE OF THE FAMILY RELATIONSHIP AFTER ENTRY INTO THAT TERRITORY .

14 IN ORDER TO REPLY TO THE QUESTIONS SUBMITTED IT IS NECESSARY TO VIEW REGULATION NO 1612/68 IN ITS CONTEXT .

15 THAT REGULATION IS ONE OF VARIOUS MEASURES INTENDED TO FACILITATE THE ACHIEVEMENT OF THE OBJECTIVES OF ARTICLE 48 OF THE TREATY . IT MUST THEREFORE ENABLE A WORKER TO MOVE FREELY IN THE TERRITORY OF THE OTHER MEMBER STATES AND TO RESIDE IN THEIR TERRITORY IN ORDER TO WORK THERE .

16 TO THAT END , ARTICLE 10 OF THE REGULATION PROVIDES THAT CERTAIN MEMBERS OF THE MIGRANT WORKER ' S FAMILY MAY ALSO ENTER THE TERRITORY OF THE MEMBER STATE IN WHICH HE IS ESTABLISHED AND INSTALL THEMSELVES WITH HIM .

17 HAVING REGARD TO ITS CONTEXT AND THE OBJECTIVES WHICH IT PURSUES , THAT PROVISION CANNOT BE INTERPRETED RESTRICTIVELY .

18 IN PROVIDING THAT A MEMBER OF A MIGRANT WORKER ' S FAMILY HAS THE RIGHT TO INSTALL HIMSELF WITH THE WORKER , ARTICLE 10 OF THE REGULATION DOES NOT REQUIRE THAT THE MEMBER OF THE FAMILY IN QUESTION MUST LIVE PERMANENTLY WITH THE WORKER , BUT , AS IS CLEAR FROM ARTICLE 10 ( 3 ), ONLY THAT THE ACCOMMODATION WHICH THE WORKER HAS AVAILABLE MUST BE SUCH AS MAY BE CONSIDERED NORMAL FOR THE PURPOSE OF ACCOMMODATING HIS FAMILY . A REQUIREMENT THAT THE FAMILY MUST LIVE UNDER THE SAME ROOF PERMANENTLY CANNOT BE IMPLIED .

19 IN ADDITION SUCH AN INTERPRETATION CORRESPONDS TO THE SPIRIT OF ARTICLE 11 OF THE REGULATION , WHICH GIVES THE MEMBER OF THE FAMILY THE RIGHT TO TAKE UP ANY ACTIVITY AS AN EMPLOYED PERSON THROUGHOUT THE TERRITORY OF THE MEMBER STATE CONCERNED , EVEN THOUGH THAT ACTIVITY IS EXERCISED AT A PLACE SOME DISTANCE FROM THE PLACE WHERE THE MIGRANT WORKER RESIDES .

20 IT MUST BE ADDED THAT THE MARITAL RELATIONSHIP CANNOT BE REGARDED AS DISSOLVED SO LONG AS IT HAS NOT BEEN TERMINATED BY THE COMPETENT AUTHORITY . IT IS NOT DISSOLVED MERELY BECAUSE THE SPOUSES LIVE SEPARATELY , EVEN WHERE THEY INTEND TO DIVORCE AT A LATER DATE .

21 AS REGARDS ARTICLE 11 OF REGULATION NO 1612/68 , IT IS CLEAR FROM THE TERMS OF THAT PROVISION THAT IT DOES NOT CONFER ON THE MEMBERS OF A MIGRANT WORKER ' S FAMILY AN INDEPENDENT RIGHT OF RESIDENCE , BUT SOLELY A RIGHT TO EXERCISE ANY ACTIVITY AS EMPLOYED PERSONS THROUGHOUT THE TERRITORY OF THE STATE IN QUESTION . ARTICLE 11 CANNOT THEREFORE CONSTITUTE THE LEGAL BASIS FOR A RIGHT OF RESIDENCE WITHOUT REFERENCE TO THE CONDITIONS LAID DOWN IN ARTICLE 10 .

22 CONSEQUENTLY , IN REPLY TO THE QUESTIONS REFERRED TO THE COURT BY THE BUNDESVERWALTUNGSGERICHT , IT MUST BE STATED THAT THE MEMBERS OF A MIGRANT WORKER ' S FAMILY , AS DEFINED IN ARTICLE 10 OF REGULATION NO 1612/68 , ARE NOT NECESSARILY REQUIRED TO LIVE PERMANENTLY WITH HIM IN ORDER TO QUALIFY FOR A RIGHT OF RESIDENCE UNDER THAT PROVISION AND ARTICLE 11 OF THE SAME REGULATION DOES NOT ESTABLISH A RIGHT OF RESIDENCE INDEPENDENT OF THAT PROVIDED FOR IN ARTICLE 10 .

COSTS

23 THE COSTS INCURRED BY THE GOVERNMENTS OF THE FEDERAL REPUBLIC OF GERMANY , THE UNITED KINGDOM AND THE NETHERLANDS AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE BUNDESVERWALTUNGSGERICHT BY ORDER OF 18 OCTOBER 1983 , HEREBY RULES :

THE MEMBERS OF A MIGRANT WORKER ' S FAMILY , AS DEFINED IN ARTICLE 10 OF REGULATION NO 1612/68 , ARE NOT NECESSARILY REQUIRED TO LIVE PERMANENTLY WITH HIM IN ORDER TO QUALIFY FOR A RIGHT OF RESIDENCE UNDER THAT PROVISION AND ARTICLE 11 OF THE SAME REGULATION DOES NOT ESTABLISH A RIGHT OF RESIDENCE INDEPENDENT OF THAT PROVIDED FOR IN ARTICLE 10 .