OPINION OF ADVOCATE GENERAL

Sharpston

delivered on 8 July 2010 (1)

Case C‑303/08

Metin Bozkurt

v

Land Baden-Württemberg

(Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany))

(EEC-Turkey Association Agreement – Article 7, first paragraph, of Decision No 1/80 – Right of residence acquired by the spouse of a Turkish worker – Whether lost as the result of the divorce of the spouse – Whether lost as the result of abuse of the marital relationship giving rise to the right of residence)

1.        This reference for a preliminary ruling again concerns Decision No 1/80 of the EEC-Turkey Association Council (‘Decision No 1/80’). (2) The national court enquires as to the position of a Turkish national who acquired the right to reside in a Member State in his capacity as the husband of a Turkish worker. The marriage was subsequently dissolved and the husband was convicted of raping and assaulting his former wife. Does he remain entitled to claim rights under Article 7 of Decision No 1/80 notwithstanding the dissolution of the marriage that entitled him to reside in the host State in the first place? If so, does the fact that he may have abused the marital relationship by raping and assaulting his wife mean that such rights as he may have had under Article 7 are thereby lost?

 Legal background

 The EEC-Turkey Association Agreement

2.        The EEC-Turkey Association Agreement (3) (‘the Association Agreement’) was entered into 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) of Decision No 1/80 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.’

 The main proceedings and the questions referred for a preliminary ruling

8.        Mr Bozkurt, the applicant in the main proceedings, is a Turkish national. He was born in 1959.

9.        He entered Germany in 1992 and applied for asylum. In September 1993, he married a Turkish worker who was duly registered as belonging to the labour force in that Member State. Following his marriage, he withdrew his request for asylum and he was granted a temporary residence permit in October 1993. The residence permit was converted to a permanent one in October 1998. At that time, he had satisfied the conditions laid down in the first paragraph of Article 7 of Decision No 1/80.

10.      Since June 2000, he has lived separately from his wife. The couple divorced in November 2003.

11.      During his residence in Germany, Mr Bozkurt has held a number of jobs. The national court states, however, that it cannot give precise details of these, as Mr Bozkurt refuses to provide this information, despite his having been asked to do so. It appears that he was on sick leave for 18 months from the beginning of 2000. Since then, he has been unemployed and receiving benefits from the State.

12.      Mr Bozkurt has been convicted of criminal offences on several occasions. In May 1996, he was sentenced to four months in prison for assault causing severe injury. In November 2000, he received a sentence of eight months’ imprisonment for assault, attempted assault causing severe injury and damage to property. In May 2004, he was convicted of raping his former wife, accompanied by intentional bodily injury. It appears that the rape took place in 2002, while the couple were still married, albeit separated. On appeal, his sentence was fixed at two years. The sentence was suspended and he was released from custody in January 2005.

13.      By decision of 26 July 2005, the Land Baden-Württemberg, the defendant in the main proceedings, ordered Mr Bozkurt’s expulsion from Germany. Mr Bozkurt challenged that decision before the Vewaltungsgericht (Administrative Court) and the decision was overturned by judgment of 5 July 2006. That judgment was in turn the subject of an appeal brought by the Land Baden-Württemberg before the Verwaltungsgerichtshof (Higher Administrative Court). By judgment of 14 March 2007, the appeal was dismissed. The Verwaltungsgerichtshof held, in essence, that since Mr Bozkurt was entitled to claim a right of residence under Article 7 of Decision No 1/80, an order for his expulsion must comply with the procedures which applied to Union citizens. (5) Since those procedures were not in fact complied with, the decision to expel was unlawful. Nor did the fact that Mr Bozkurt had been unemployed since 2000, that it was possible that he might never return to work because of his illness, and that he had spent some nine months in prison mean that he had lost his rights under Article 7. On the contrary, the case-law of the Court of Justice was to be interpreted as meaning that his right of residence continued notwithstanding that the conditions which led to its being acquired were no longer satisfied. It followed that he continued to be entitled to claim rights under that article.

14.      The Land Baden-Württemberg brought an appeal against that decision before the Bundesverwaltungsgericht (Federal Administrative Court). In that appeal, questions have been raised as to the applicability of rights arising under, inter alia, Article 7 of Decision No 1/80 to a person such as Mr Bozkurt.

15.      Since it took the view that the resolution of the dispute before it required an interpretation of that provision, the Bundesverwaltungsgericht decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1.      Is the right of residence and employment acquired as a member of the family pursuant to the second indent of the first paragraph of Article 7 of [Decision No 1/80] by the spouse of a Turkish worker who is duly registered as belonging to the labour force of a Member State retained even after a divorce?

If the reply to the first question is in the affirmative:

2.      Is it an abuse of rights to plead the right of residence derived from his former wife under the second indent of the first paragraph of Article 7 of [Decision No 1/80] where the Turkish national raped and injured his former wife after acquiring rights thereunder and the offence was punished with two years’ imprisonment?’

16.      Written observations have been submitted by Mr Bozkurt, the Danish, German and Italian Governments, the Land Baden-Württemberg and the European Commission. No hearing has been requested and none has been held.

 Analysis

 Preliminary observation

17.      Although the questions referred concern Article 7 of Decision No 1/80, the national court refers in the order for reference to the possibility of Mr Bozkurt having acquired rights as a Turkish worker under Article 6 of that decision. However, it goes on to indicate that such a possibility must be excluded, since Mr Bozkurt has provided neither precise details of his employment in Germany nor documentation relating thereto, despite being asked to do so by the Land Baden-Württemberg. Without Mr Bozkurt’s cooperation, it is impossible to determine whether he has acquired rights under that article or whether he may have lost them by reason of his having been unemployed for a number of years.

18.      In its observations, the Commission expresses its doubts as to the view adopted by the national court. It notes that Article 6(2) of Decision No 1/80 clearly states that, while periods of involuntary unemployment and long absences on account of sickness are not to be treated as periods of legal employment, they are not to affect rights acquired as the result of the preceding period of employment. In the Commission’s opinion, the national court should renew its enquiries into this aspect. If it were to be the case that Mr Bozkurt had rights under Article 6, it would not be necessary to consider his position under Article 7.

19.      As the Commission itself observes, it is settled case-law that, in proceedings under Article 234 EC (now Article 267 TFEU), which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. (6) Similarly, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. (7)

20.      None the less, it may be helpful if I state – in order to assist the national court in its determination of the case before it – that I agree with the Commission’s observations in relation to the wording and effect of Article 6 of Decision No 1/80. The fact that Mr Bozkurt has been unemployed for several years does not, of itself, lead to his rights under that article being lost. (8) The precise application of that article in the main proceedings is, of course, a matter entirely for the national court.

 Question 1

21.      By its first question, the national court is essentially asking whether rights can be claimed under the second indent of the first paragraph of Article 7 of Decision No 1/80 (‘Article 7’) where the person concerned is no longer one of the ‘members of the family’ of a Turkish worker, duly registered as such in the host State.

22.      In other words, does it lie within the competence of a Member State to make those rights conditional upon retention of the status of ‘member of the family’? It will not be open to that State to order the expulsion of a person in Mr Bozkurt’s situation if the rights concerned must be seen as autonomous once they have arisen.

23.      The Danish and the German Governments and the Land Baden-Württemberg argue that, unless the status of family member is retained, those rights are lost. Mr Bozkurt and the Commission argue the contrary, that is to say, that the rights, once acquired, are autonomous. The Italian Government argues that Mr Bozkurt’s divorce should not affect his rights under Article 7, but qualifies this view in certain respects.

24.      In order to answer this question, it is necessary first to consider the extent to which Articles 6 and 7 of Decision No 1/80 fulfil a social role in creating rights for Turkish workers and members of their family within the Member States. Next, regard should be had to the process whereby the aims underlying those provisions are to be applied in practice and, by extension, the extent to which those States may impose conditions on the residence of those seeking to benefit thereunder. There is no shortage of decisions from the Court in this area and I shall draw heavily on that case-law in my analysis of these issues.

 Article 7 as a social instrument

25.      Article 7 appears in Section 1 of Decision No 1/80 (entitled ‘Questions relating to employment and the free movement of workers’) of Chapter II (entitled ‘Social provisions’) of that decision.

26.      It is clear that Article 7 must be given direct effect in the Member States, with the result that Turkish nationals fulfilling the conditions which it lays down may directly rely on the rights it confers on them. (9)

27.      By Article 6 of Decision No 1/80, which appears in the same section, Turkish workers duly registered as belonging to the labour force of a Member State are given certain rights to access the employment market in that State. After four years’ legal employment under that article, they are entitled to free access to any employment of their choice, provided that that employment is in the host State. (10)

28.      Under the first paragraph of Article 7, the members of the family of such a worker, who have been authorised to join him, are to be entitled to limited access to the employment market in the host State after they have been legally resident for at least three years. After being legally resident for five years, they are to enjoy free access to any paid employment of their choice. By these provisions, a gradual process of integration is initiated, both for the worker and for the members of his family.

29.      In order to benefit from rights under Article 7, the family member concerned must, first, be a member of the family of a Turkish worker already duly registered as belonging to the labour force of the host State and, second, have been authorised by the competent authorities of that State to join that worker there. (11)

30.      The integration process provided for under Article 7 operates in two stages. The first of these lasts for three years. During that period, unless the host State elects to put in place arrangements which are more beneficial to family members generally, the person concerned has no right to take up employment in that State. The second stage lasts for two years. The family member may take up employment, but the right to do so is subject to ‘the priority to be given to workers of Member States of the Community’. Once that five-year period has elapsed, the family member is free to take up any paid employment of his choice.

31.      The right to seek and/or obtain employment necessarily implies a concomitant right of residence in the host State, without which the former right would be inoperative. (12)

 The application of Article 7 in practice

32.      To what extent may the Member States impose conditions on the family member’s right of residence?

33.      It is clear from the Court’s case-law that the Member State in question may impose conditions, both as regards the family member’s initial entry into its territory and as regards that person’s residence during (at least) the period of three years following such entry. The decision as to entry is a matter entirely for the host State. It is free to impose conditions on that entry. The conditions which that State may impose once entry has been authorised are more limited: essentially, they are entitled to ensure that the presence of the family member is ‘in conformity with the spirit and purpose of the first paragraph of Article 7’. It is clear, for example, that the host State may impose a condition that the family member live under the same roof as the worker he has been authorised to join there. (13)

34.      What are the objectives of this qualifying period, seen from the point of view of the Turkish worker and the members of his family?

35.      Essentially, they are twofold. First, the presence of the family members in the territory of the host State is intended to enable the family to be together. (14) Initially, at least, the emphasis is on improving the situation of the Turkish workers, as opposed to that of the family members. By having their family members join them, they will benefit from an improved quality of life in their place of work.

36.      Secondly, the purpose is to integrate the family member. By enabling the family members to be present in the host State, those persons have the opportunity gradually to form part of the society of that State and, ultimately, to take up employment there. Their position in the host State is, as a result, ‘consolidated’. (15) The focus in this case is on the family members, rather than the Turkish worker whom they came to join.

37.      What is the position once the qualifying period has expired? Can the host State continue to impose conditions on those family members’ right of residence once they have acquired the unrestricted right to gain access to the labour market in that State? Can it, in effect, say to a person such as Mr Bozkurt: ‘you may remain in this country for so long as you are married. If, however, you should divorce, we reserve the right to expel you from our territory’?

38.      In my view, it is no longer open to the host State to attach conditions on the right of residence in this situation. The moment has passed.

39.      This conclusion is confirmed by the Court’s case-law relating to Article 7, both as regards the Court’s analysis of the general nature of the right and the particular cases in which the Court has recognised its continuing existence. Seen from a general perspective, what the Court has done is to stress the autonomous nature of the right arising once the qualifying period has been completed. Thus, in Ergat, (16) the Court stated that ‘Member States are no longer entitled to attach conditions to the residence of a member of a Turkish worker’s family after that period of three years’, and that ‘this must a fortiori be the case for a migrant Turk who … fulfils the conditions laid down in the second indent of the first paragraph of Article 7’ (that is to say, who has been legally resident in the host Member State for five years). (17) It went on to refer to the status of a family member who satisfied the conditions laid down in Article 7 as that of a person who ‘is … already legally integrated into the host Member State’ and who ‘has the prospect of becoming permanently integrated in his host Member State’. (18) In Eyüp, (19) it referred 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’. (20)

40.      In placing emphasis on the function of Article 7 in integrating family members having rights under it into the society of the host State, the Court has stressed that the right of residence, which is the counterpart of the right to access the employment market in the Member State concerned, is ‘independent of the continuing existence of the conditions for access to [that right]’. (21) In Ergat, it stated that ‘the unconditional right to take up any employment freely chosen by the person concerned, untrammelled, moreover, by any priority for workers of Member States … would be rendered wholly meaningless if the competent national authorities were able to impose conditions or restrictions of any sort on the application of the specific rights which were conferred on migrant workers by [Decision No 1/80]’. (22)

41.      Applying that reasoning to particular situations, the Court has held, for example, that rights may validly be claimed under Article 7, even though the claimant’s father, from whom he derived his right of residence, had left the host State at the time those rights were exercised and was no longer resident or in employment there. (23) Similarly, it has held that the fact that a person who had satisfied the conditions laid down in the first paragraph of Article 7 still, even at the age of 23, did not have paid employment, did not prevent his being entitled to a right of residence. (24)

42.      It is true that that case-law concerns persons who, unlike Mr Bozkurt, were ‘family members’ at the time their right of residence was challenged by the host State. But to argue, as the Danish and the German Governments and the Land Baden-Württemberg do in their observations, that the lack of a continuing family tie means that Mr Bozkurt has now lost whatever rights he had under Article 7, seems to me to miss the point. It is clear from the order for reference that Mr Bozkurt spent five years as the family member of a Turkish worker duly registered as belonging to the labour force of a Member State, in this case Germany. There is no suggestion that, during that period, he did anything other than comply with the conditions that were imposed on him. Accordingly, on completion of that five-year period, he acquired full rights under Article 7. Those rights were autonomous and, subject to the two qualifications I shall address in the next point, continuing. In my view, the fact that he subsequently divorced and lost the relationship of ‘family member’ can have no effect whatsoever on his position.

43.      The two qualifications are these. Turkish nationals who have acquired unconditional rights of residence and of access to the employment market in the host State can lose those rights in either of two situations. The first of these involves the public policy, public security and public health ground which is laid down in Article 14(1) of Decision No 1/80. I shall return to this point below. (25) The second is where the party concerned leaves the territory of the host State for a significant length of time without legitimate reason. (26)

44.      Thus, the first situation reflects the continuing right of a Member State to expel a Turkish national from its territory for particular, good reason – a right that it also retains in respect of EU nationals. The second situation reflects the fact that an unqualified right of residence is not, conceptually, the same as possessing the nationality of the host State or enjoying the special rights associated with citizenship of the Union.

45.      In my opinion, it is quite clear that these are the only grounds on which the rights which a person such as Mr Bozkurt enjoys may be terminated. (27)

46.      In its order for reference, the national court refers to the impact that Regulation No 1612/68 (28) might have on Mr Bozkurt’s situation. In that regard, the Court has held that, since Article 7 does not contain a definition of ‘family member’, recourse might be had to the definition of that concept in the regulation in order to construe the equivalent concept in Article 7. (29) In Reed, (30) the Court held in relation to Article 10 of Regulation No 1612/68 that the concept of the ‘family’ of a worker did not extend to his unmarried cohabitee. (31) The national court (whose line of reasoning in that regard is supported by the Danish and German Governments) asks whether this should be taken to mean that Mr Bozkurt’s right of residence terminated with his divorce.

47.      In my opinion, it follows from the above analysis that, once the five-year period has been completed and full rights under Article 7 have been acquired, the question of the application by analogy of Regulation No 1612/68 to a person in Mr Bozkurt’s situation becomes irrelevant. The question whether Mr Bozkurt is a family member simply does not arise in this context. What matters is that he had been a family member during the five-year qualifying period.

48.      Lastly, I should address the application of Article 59 of the Additional Protocol, which has also been raised by the national court and the Danish, German and Italian Governments. By that provision, more favourable treatment of Turkish nationals than their Union counterparts in comparable situations is effectively precluded. Under the Community legislation in force at the time of Mr Bozkurt’s order for expulsion, (32) Union citizens who had entered into and resided in a Member State in their capacity as a family member were liable themselves to lose their right of residence in the event of their divorcing the person they had come to join there. Were Article 7 to be interpreted as meaning that Mr Bozkurt had a continuing right of residence in equivalent circumstances (the argument runs), this would result in his being treated more favourably. Such an outcome would be contrary to Article 59 and must accordingly be rejected.

49.      I do not agree.

50.      As the Commission rightly points out in its observations, the same argument mutatis mutandis – the case concerned a child rather than a spouse – was addressed, and rejected, in Derin. (33) That case involved the child of a Turkish national, who claimed a right of residence under Article 7 although he was over 21 years of age and no longer lived with, or was maintained by, his parents, who he had come to join in the host State. In considering the applicability of Article 59, the Court compared the rights available to Union citizens with those available to Turkish nationals. It noted that the children of those citizens enjoyed an unconditional right to install themselves with their family in the host State, whereas the equivalent right of children of Turkish nationals was conditional, since it required the consent of the authorities of the State concerned. Next, it observed that the children of a Union citizen enjoy the right to take up any activity as an employed person in the host State, while the equivalent right of the children of Turkish workers is specifically regulated by the first paragraph of Article 7. Lastly, it pointed out that Turkish nationals are not entitled to freedom of movement within the Community, and that they may lose their right of residence in cases where Article 14 of Decision No 1/80 applies or where they leave the territory of the host State for a significant length of time without legitimate reason. (34) The Court therefore held that the situation of the child of a Turkish worker ‘cannot usefully be compared’ to that of a descendant of a national of a Member State, having regard to the significant differences between their respective legal situations. (35)

51.      In my opinion, there is nothing to preclude that line of reasoning being transposed to a person, such as Mr Bozkurt, in his capacity as the former spouse of a Turkish national.

52.      It follows that the argument based on Article 59 of the Additional Protocol must be rejected.

53.      For all of the above reasons, I am of the view that the answer to Question 1 must be that the right of residence and employment acquired as a member of the family pursuant to the second indent of the first paragraph of Article 7 by the spouse of a Turkish worker who is duly registered as belonging to the labour force of a Member State is retained even after a divorce.

 Question 2

54.      This is an important question. Before addressing the issues of law which fall to be dealt with, I would like to emphasise that this case is not about rape and what one thinks about rape. It is about what constitutes an abuse of rights, where there is a breakdown of a marriage through which a right of residence has arisen by virtue of Article 7. That is the background against which the question must be answered. The right of a Member State to expel a person in Mr Bozkurt’s situation is a separate issue, governed by Article 14 of Decision No 1/80, which I shall consider in point 71 et seq. below.

55.      By its second question, the national court asks whether it is an abuse of rights for a person such as Mr Bozkurt to plead the right of residence derived from his former wife under the second indent of the first paragraph of Article 7, where he raped and injured her after acquiring that right and the offence was punished with a suspended term of imprisonment of two years.

56.      The Danish and German Governments and the Land Baden-Württemberg argue that such conduct is indeed an abuse of rights. It follows that a Member State is competent to deprive Mr Bozkurt of his right of residence. The Italian Government takes the view that this question is most appropriately treated by having regard to Article 14(1) of Decision No 1/80. I shall address that issue below. (36) For its part, the Commission argues that to apply the concept of abuse of rights to a situation such as Mr Bozkurt’s in the main proceedings is misconceived.

57.      I agree with the Commission.

58.      It is clear beyond doubt that it is a general principle of European Union law that abuse of rights is prohibited. (37) It follows that EU law cannot be used for fraudulent or abusive ends. (38)

59.      It has been observed that the test for establishing whether there has been conduct amounting to abuse in an individual case is ‘whether there has been a distortion of the purposes and objectives of the Community provision which grants the right in question’. (39)

60.      The right at issue in the main proceedings is the right of residence which flows from Article 7. I have already set out what the purposes and objectives of that right are. (40)

61.      Can it be said that Mr Bozkurt’s wrongful conduct, of itself and without more, may lead to that right being terminated?

62.      In my opinion, it cannot.

63.      From the material contained in the order for reference, it seems that there is no suggestion that this is a case of a sham marriage, contracted in order to create benefits that would otherwise be unavailable. The Court has held that a marriage of convenience cannot create rights under European Union law. (41) Were Mr Bozkurt to have attempted to obtain rights under Article 7 by contracting a fictitious relationship, those rights would have been worthless. (42) But that is not the situation here.

64.      Rape is a very serious crime. Given that the victim of Mr Bozkurt’s crime was his wife, there can be no doubt that he abused the marriage. In my opinion, however, that does not amount to behaviour which constitutes an abuse of Mr Bozkurt’s right of residence under Article 7 with the result that that right must be treated as being lost by reason of the principles set out above.

65.      I say this for two reasons.

66.      First, it seems to me that, where the right in question falls to be construed as an autonomous one, as I have proposed it should, to talk of the right being abused by reason of a crime committed against the person from whom that right was derived, is misconceived. Where the right is an independent one, issues relating to the source of that right can, by definition, no longer apply.

67.      Second, in order to determine whether there has been an abuse of rights for the purposes of Article 7, it is necessary to look to the requirements laid down in the case-law. In Emsland-Stärke, (43) the Court held that a two-stage test must be applied. In the first place, it is necessary to establish a combination of objective circumstances in which, despite formal observance of the conditions laid down by the Community rules, the purpose of those rules has not been achieved. In the second place, there must be a subjective element consisting in the intention to obtain an advantage from the Community rules by creating artificially the conditions laid down for obtaining it. (44) That subjective element must represent the ‘sole purpose’ of the conduct in question. (45)

68.      It will be clear that the conduct complained of in Mr Bozkurt’s case cannot meet both these requirements. It cannot be said that, by marrying Mrs Bozkurt, his sole purpose was to obtain an advantage from Community rules. The national court observes that Mr Bozkurt’s conduct makes him ‘unworthy’ of receiving rights under Article 7. That may be so, but unworthiness of that kind and an abuse of rights under Community law are not the same thing. ‘Unworthiness’ is not the test laid down in Emsland-Stärke. (46)

69.      I would add for the sake of completeness that it follows logically from this conclusion that, even had the conduct complained of taken place during the three or five-year periods referred to in the first paragraph of Article 7, it would still not have amounted to an abuse of rights for the purposes of European Union law.

70.      For all of the above reasons, I am of the opinion that the answer to Question 2 must be that it is not an abuse of rights to plead the right of residence derived from a former wife under the second indent of the first paragraph of Article 7, where the person in question raped and injured her after acquiring rights thereunder and the offence was punished with a suspended term of imprisonment of two years.

 Final observations

71.      Although the national court mentions Article 14 of Decision No 1/80 in its order for reference, it develops no specific line of reasoning in relation to that article. As I understand the position, the attempt to expel Mr Bozkurt in 2005 fell at the hurdle of Article 9 of Directive 64/221. It was plain both that that provision had to be complied with if the decision to expel was to be valid, and that it had not been complied with. (47)

72.      None the less, it is difficult to escape what I might describe as a feeling of unease that permeates both the order for reference and the observations of the Danish and German Governments and those of the Land Baden-Württemberg that a person with a criminal record such as Mr Bozkurt should be allowed to remain on the national territory: something must be done.

73.      I would not wish to say that attempts to address issues of expulsion ‘laterally’, as has been the case in the main proceedings, are of necessity doomed to failure. A person who does not fulfil the conditions laid down in Article 7, properly construed, does not enjoy the right to remain in the territory of the host State and may be expelled.

74.      However, it seems to me that, as a general rule, where an issue arises as to whether a Turkish national who has made use of his rights under Decision No 1/80 may be expelled from the territory of a Member State, the point will be most easily addressed by using Article 14 of that decision as a starting point. That provision is, after all, intended to govern expulsions in precisely this type of case.

75.      The rules on the applicability of Article 14(1) of Decision No 1/80 have been clearly laid down by the Court. The following is a brief summary. Where the national authorities seek to expel a person under that article, they must assess the personal conduct of the offender and whether it constitutes a present, genuine and effectively serious threat to public policy and security, and, in addition, they must observe the principle of proportionality. In particular, a measure ordering expulsion based on Article 14(1) may be taken only if the personal conduct of the person concerned indicates a specific risk of new and serious prejudice to the requirements of public policy. Such a measure cannot be ordered automatically following a criminal conviction and with the aim of general deterrence. (48) A national court which is called upon to review the lawfulness of an order for expulsion in these circumstances must take into consideration factual matters which occurred after the final decision of the competent authorities which may point to the cessation or diminution of the present threat which the conduct of the person concerned constitutes to the requirements of public policy. (49)

76.      All procedural requirements under both European Union and national law must, of course, be observed.

77.      Against that background, whether Article 14(1) of Decision No 1/80 has any application to the facts in the main proceedings, as they now stand, is a question for the national court alone.

 Conclusion

78.      In the light of all of the foregoing, I propose that the Court answer the questions referred by the Bundesverwaltungsgericht as follows:

(1)      The right of residence and employment acquired as a member of the family pursuant to the second indent of the first paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council by the spouse of a Turkish worker who is duly registered as belonging to the labour force of a Member State is retained even after a divorce.

(2)      It is not an abuse of rights to plead the right of residence derived from a former wife under the second indent of the first paragraph of Article 7, where the person in question raped and injured her after acquiring rights thereunder and the offence was punished with a suspended term of imprisonment of two years.

---

1 – Original language: English.

---

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.

---

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

---

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).

---

5 – See, in that regard, Case C‑136/03 Dörr and Ünal [2005] ECR I‑4759, paragraph 69. The procedural guarantees set out in Articles 8 and 9 of Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1963-1964, p. 117) apply to Turkish nationals whose legal status is governed by Article 6 or Article 7 of Decision No 1/80. Article 9(1) of that directive provides, essentially, that save where there is a full right of appeal to a court of law, having suspensory effect, and save in cases of urgency a decision refusing renewal of a residence permit or ordering the expulsion of the holder of a residence permit is not to be taken by the national authorities until an opinion has been obtained from a competent authority of the host country, before which the person concerned enjoys such rights of defence and of assistance and representation as the domestic law of that country provides. Although it appears that Article 9(1) applied to the decision to expel Mr Bozkurt, no opinion was ever obtained from the competent authority as that provision requires. Directive 64/221 was repealed 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 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) with effect from 30 April 2006.

---

6 –      See, among many, Case 36/79 Denkavit Futtermittel [1979] ECR 3439, paragraph 12, and Case C‑433/05 Sandström [2010] ECR I‑0000, paragraph 35.

---

7 –      See, among many, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 59, and Case C‑440/08 Gielen [2010] ECR I‑0000, paragraph 27.

---

8 –      See, in that regard, Case C‑171/95 Tetik [1997] ECR I‑329, paragraph 38.

---

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

---

10 – For a fuller analysis of the background to Articles 6 and 7 of Decision No 1/80, see my Opinion in Case C‑484/07 Pehlivan, delivered on the same date as this Opinion, point 29 et seq.

---

11 – See Case C‑275/02 Ayaz [2004] ECR I‑8765, paragraph 34.

---

12 – See, inter alia, Case C‑351/95 Kadiman [1997] ECR I‑2133, paragraph 29. The reasoning applied by the Court here mirrors its earlier reasoning in relation to Article 6 of Decision No 1/80: see Case C-192/89 Sevince [1990] ECR I-3461, paragraph 29, and Case C-237/91 Kus [1992] ECR I-6781, paragraph 22.

---

13 – See Kadiman, cited in footnote 12 above, paragraphs 33 and 41. For a fuller analysis of the conditions which a host Member State is entitled to impose during the period in question, see my Opinion in Pehlivan, cited in footnote 10 above, point 39 et seq.

---

14 – See Kadiman, cited in footnote 12 above, paragraphs 35 and 36.

---

15 – See, to that effect, Kadiman, cited in footnote 12 above, paragraphs 35 and 36.

---

16 – Case C‑329/97 [2000] ECR I‑1487.

---

17 – Paragraphs 38 and 39.

---

18 –      Paragraphs 42 and 43.

---

19 –      Case C‑65/98 [2000] ECR I‑4747.

---

20 –      Paragraph 28 (emphasis added).

---

21 – See Ergat, cited in footnote 16 above, paragraph 40, and Case C‑467/02 Cetinkaya [2004] ECR I‑10895, paragraph 31.

---

22 – See paragraph 41. See also Case C‑453/07 Er [2008] ECR I‑7299, paragraph 27.

---

23 – See Case C‑210/97 Akman [1998] ECR I‑7519, paragraph 51.

---

24 – See Er, cited in footnote 22 above, paragraph 31, which points out that Article 7 differs in this regard from Article 6(1) of Decision No 1/80. See also Case C‑373/03 Aydinli [2005] ECR I‑6181, paragraph 31, and, Derin, cited in footnote 9 above, paragraph 56.

---

25 – See point 71 et seq. below.

---

26 –      See, inter alia, Ergat, cited in footnote 16 above, paragraph 48; Case C‑349/06 Polat [2007] ECR I‑8167, paragraph 21; and Case C‑337/07 Altun [2008] ECR I‑10323, paragraph 62.

---

27 – See, inter alia, Cetinkaya, cited in footnote 21 above, paragraph 38.

---

28 – 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.

---

29 –      See Ayaz, cited in footnote 11 above, paragraph 38.

---

30 –      Case 59/85 [1986] ECR 1283.

---

31 – See paragraph 16.

---

32 – See point 46 above.

---

33 –      Cited in footnote 9 above.

---

34 –      Paragraphs 62 to 67.

---

35 –      Paragraph 68.

---

36 –      See point 71 et seq. below.

---

37 – See, among many, Case C‑321/05 Kofoed [2007] ECR I‑5795, paragraph 38.

---

38 – See, inter alia, Case C‑367/96 Kefalas [1998] ECR I‑2843, paragraph 20; Case C‑373/97 Diamantis [2000] ECR I‑1705, paragraph 33; and Case C‑16/05 Tum and Dari [2007] ECR I‑7415, paragraph 64.

---

39 – See the Opinion of Advocate General Tizzano in Case C‑200/02 Zhu [2004] ECR I‑9925, point 115.

---

40 – See point 25 et seq. above.

---

41 – See, as regards Regulation No 1612/68, Case C‑109/01 Akrich [2003] ECR I‑9607, paragraph 61. See, as regards Article 6 of Decision No 1/80, Case C‑285/95 Kol [1997] ECR I‑3069, paragraph 25.

---

42 –      In my opinion, even after the expiry of the periods laid down in Article 7. See my Opinion in Pehlivan, cited in footnote 10 above, point 89 et seq.

---

43 –      Case C‑110/99 [2000] ECR I‑11569.

---

44 –      See paragraphs 52 and 53.

---

45 –      Paragraph 50. See also Kofoed, cited in footnote 37 above, paragraph 38, where the Court referred to the abusive conduct in question being ‘solely’ for the purpose of obtaining an advantage.

---

46 – Cited in footnote 43 above.

---

47 –      See point 13 and footnote 5 above.

---

48 –      See Derin, cited in footnote 9 above, paragraph 74.

---

49 –      See Cetinkaya, cited in footnote 21 above, paragraph 47.