Opinion of the Advocate General — ECLI:EU:C:2018:267
Date: 2018-04-19
Language of the case: German
Subject matter: Association Agreement;External relations;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (First Chamber), 7 August 2018 1. International agreements — EEC-Turkey Association Agreement — Freedom of movement for persons — Workers — Standstill rules in Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80 of the Association Council — Scope ratione temporis (EEC-Turkey Association Agreement, Art. 12; Additional Protocol to the EEC-Turkey Association Agreement, Art. 36; Decisions No 2/76, Arts. 1 and 7, and No 1/80, Arts. 13 and 16, of the EEC-Turkey Association Council) 2. 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 — Interpretation also valid for Article 7 of Decision No 2/76 (Additional Protocol to the EEC-Turkey Association Agreement, Art. 41(1); Decisions No 2/76, Art. 7, and No 1/80, Art. 13, of the EEC-Turkey Association Council) 3. International agreements — EEC-Turkey Association Agreement — Freedom of movement for persons — Workers — Standstill rule in Article 7 of Decision No 2/76 — Concept of ‘new restriction’– National measure introduced during the period from 20 December 1976 to 30 November 1980, which makes the grant of a residence permit for the purposes of family reunification to third-country nationals who are family members of a Turkish worker residing lawfully in the Member State concerned, subject to such nationals obtaining, before entry onto national territory, a visa — Included — Not permissible — Justification — Effective control of immigration and the management of migratory flows — Condition — Proportionality (Decision No 2/76 of the EEC-Turkey Association Council, Art. 7) 1. On the basis of Article 12 of the Association Agreement and Article 36 of the Additional Protocol, the Association Council, set up by that Agreement to ensure the implementation and the progressive development of the Association, first adopted, on 20 December 1976, Decision No 2/76 which is presented in Article 1 thereof as constituting a first stage in securing freedom of movement for workers between the Community and Turkey, which was to last for four years from 1 December 1976 (judgment of 10 February 2000, Nazli, C‑340/97, EU:C:2000:77, paragraph 52). As is apparent from Article 13 thereof, that decision entered into force on 20 December 1976. Article 11 of Decision 2/76 provided for the adoption by the Association Council of a decision implementing, in the second stage, Article 36 of the Additional Protocol, stating, first, that such a decision had to be implemented on the date of expiry of the first stage and, secondly, that the provisions of Decision No 2/76 were to apply until the beginning of the second stage. It is in those circumstances that, on 19 September 1980, the Association Council adopted Decision No 1/80 which is intended, according to the third recital, to improve, in the social field, the treatment accorded to workers and members of their families in relation to the arrangements introduced by Decision No 2/76 (judgment of 23 January 1997, Tetik, C‑171/95, EU:C:1997:31, paragraph 19). The provisions of Section 1, entitled ‘Questions relating to employment and the free movement of workers’, of Chapter II, entitled ‘Social provisions’, of Decision No 1/80, of which Article 13 forms part, thus constitute a further stage in securing freedom of movement for workers (see, to that effect, judgment of 23 January 1997, Tetik, C‑171/95, EU:C:1997:31, paragraph 20 and the case-law cited), and are applicable, pursuant to Article 16 of that decision, since 1 December 1980. It follows from the foregoing that Article 7 of Decision No 2/76 applies ratione temporis to the national measures introduced during the period between 20 December 1976, the date of entry into force of that decision, to 30 November 1980, the date of expiry of the first stage in securing freedom of movement for workers between the Community and Turkey. Article 13 of Decision No 1/80 applies ratione temporis to the national measures introduced after 1 December 1980, which is the date marking the entry into force of that decision and the start of the second stage in securing freedom of movement for workers between the Community and Turkey. Although it is true that Decision No 2/76 ended on the date of expiry of the first stage in securing freedom of movement for workers between the Community and Turkey, namely 30 November 1980, and that it was superseded, as of 1 December 1980, by Decision No 1/80, as is apparent from paragraphs 44 to 47 of the present judgment, such a replacement cannot, however, be interpreted as meaning that Decision No 2/76 was repealed retroactively by Decision No 1/80, as a result of which the first decision is no longer applicable. Therefore, in the absence of a retroactive repeal of Decision No 2/76, the ‘standstill’ clause laid down in Article 7 of that Decision is to apply in relation to any measure introduced by a Member State during the period from 20 December 1976 to 30 November 1980, as noted in paragraph 48 of the present judgment. (see paras 44-48, 51, 54) 2. See the text of the decision. (see paras 60-67) 3. Article 7 of Decision No 2/76 of 20 December 1976 adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963 by the Republic of Turkey, on the one hand, and by the Member States of the EEC and the Community, on the other, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, must be interpreted as meaning that a national measure, such as that at issue in the main proceedings, taken during the period from 20 December 1976 to 30 November 1980, which makes the grant, for the purposes of family reunification, of a residence permit to third-country nationals who are family members of a Turkish worker residing lawfully in the Member State concerned, subject to such nationals obtaining, before entering national territory, a visa for the purpose of that reunification, constitutes a ‘new restriction’ within the meaning of that provision. Such a measure may nevertheless be justified on the grounds of the effective control of immigration and the management of migratory flows, but may be accepted only provided that the detailed rules relating to its implementation do not go beyond what is necessary to achieve the objective pursued, which it is for the national court to verify. (see para 89, operative part)