Opinion of the Advocate General — ECLI:EU:C:2016:28
Date: 2016-01-20
Language of the case: Danish
Subject matter: Association Agreement;External relations;Immigration and asylum policy;Free movement of workers;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary — Judgment of the Court (Grand Chamber), 12 April 2016 1. International agreements — EEC-Turkey Association Agreement — Freedom of movement for persons — Freedom of establishment — Standstill rule in Article 41(1) of the Additional Protocol — Concept of ‘new restriction’ — National legislation, introduced after the entry into force of that provision, making family reunification more difficult by tightening the conditions for the first admission — Included — Interpretation also valid for Article 13 of Decision No 1/80 (Additional Protocol to the EEC-Turkey Association Agreement, Art. 41(1); Decision No 1/80 of the EEC-Turkey Association Council, Art. 13) 2. International agreements — EEC-Turkey Association Agreement — Freedom of movement for persons — Workers — Standstill clause in Article 13 of Decision No 1/80 of the Association Council — Scope — National legislation laying down new, more stringent conditions on access to family reunification for family members, who are not economically active — Condition requiring ties sufficient to enable successful integration — Applicability of the condition on the basis of the date of granting the Turkish worker a definitive residence permit — Not permissible — Justification — None (Decision No 1/80 of the EEC-Turkey Association Council, Arts 13 and 14) 1. See the text of the decision. (see paras 39-41) 2. A national measure making family reunification between a Turkish worker residing lawfully in the Member State concerned and his minor child subject to the condition that the latter have, or have the possibility of establishing, sufficient ties with that Member State to enable him successfully to integrate, when the child concerned and his other parent reside in the State of origin or in another State, and the application for family reunification is made more than two years from the date on which the parent residing in the Member State concerned obtained a permanent residence permit or a residence permit with a possibility of permanent residence constitutes a ‘new restriction’, within the meaning of Article 13 of Decision 1/80 of the EEA-Turkish Association Council. Such a restriction is not justified. National legislation which makes family reunification more difficult by tightening the conditions for first admission to the territory of the Member State concerned of minor children of Turkish workers residing in that Member State, in relation to those applicable at the time of entry into force of Decision No 1/80, and which, accordingly, is likely to affect the exercise of an economic activity by those workers in that territory, constitutes a ‘new restriction’, within the meaning of Article 13 of that decision, on the exercise by those Turkish nationals of the freedom of movement for workers in that Member State. Such a restriction is prohibited unless it falls within the restrictions referred to in Article 14 of that decision or, in so far as it is justified by an overriding reason in the public interest, is suitable to achieve the legitimate objective pursued and does not go beyond what is necessary in order to attain it. Although the objective of ensuring the successful integration of third-country nationals in the Member State concerned may constitute an overriding reason in the public interest, it appears that the requirement of having evidence of sufficient ties becomes applicable, however, as a function not of the personal situation of the children which could adversely affect their integration in the Member States concerned, such as their age or their ties to that Member State, but of a criterion which, at first sight, appears unconnected to the likelihood of achieving such an integration, namely the period separating the grant to the parent concerned of a definitive residence permit in the Member State concerned and the date on which the application for family reunification is made, and that such a requirement runs the risk of leading to discrimination, based on the date on which the application for family reunification was made, between children in entirely similar personal situations. In that regard, with regard in particular to the assessment of the personal situation of the child concerned, that assessment by the national authorities must be made on the basis of sufficiently precise, objective and non-discriminatory criteria which must be examined on a case-by-case basis, giving rise to a reasoned decision which may be subject to an effective appeal in order to prevent a systematic administrative practice of refusal. (see paras 50, 51, 56, 61, 65-67, operative part)