Judgment;Abstract — ECLI:EU:C:2023:77
Date: 2023-02-09
Language of the case: Dutch
Court formation: Second Chamber
Subject matter: Association Agreement;External relations;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary  C-402/21 – 1 
Case C-402/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
30 June 2021 
Referring court: 
Raad van State (Netherlands) 
Date of the decision to refer: 
23 June 2021 
Appellants: 
Case 1: Staatssecretaris van Justitie en Veiligheid 
Case 2: E 
Case 3: C 
Respondents: 
Case 1: S 
Case 2: Staatssecretaris van Justitie en Veiligheid 
Case 3: Staatssecretaris van Justitie en Veiligheid 
  
Subject matter of the main proceedings 
This reference for a preliminary ruling concerns three separate cases in which the 
Staatssecretaris (State Secretary) has withdrawn the residence permits of Turkish 
nationals who have been lawfully resident in the Netherlands for more than 
30 years, because they pose a threat to public policy. A new regulation of 2012 
makes this possible, but the question is whether this regulation is consistent with 
Article 13 of Decision No 1/80 of the Association Council of 19 September 1980 
on the development of the EEC-Turkey Association. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-402/21 
 
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Subject matter and legal basis of the request 
In this request for a preliminary ruling under Article 267 TFEU, the referring 
court asks the Court of Justice of the European Union (‘the Court of Justice’), in 
essence, whether Article 13 of Decision No 1/80 is applicable if a foreign national 
already derives rights from Article 6 or Article 7 of Decision No 1/80 and, if so, 
how Article 13 of Decision No 1/80 relates to Article 14 of Decision No 1/80. 
Questions referred for a preliminary ruling 
1. Can Turkish nationals who have the rights referred to in Article 6 or 
Article 7 of Decision No 1/80 still rely on Article 13 of Decision No 1/80? 
2. Does it follow from Article 14 of Decision No 1/80 that Turkish nationals 
can no longer rely on Article 13 of Decision No 1/80 if, due to their personal 
conduct, they represent a genuine, present and sufficiently serious threat affecting 
one of the fundamental interests of society? 
3. Can the new restriction whereby the right of residence of Turkish nationals 
may be terminated even after 20 years on grounds of public policy be justified by 
reference to the changed social perceptions which gave rise to that new 
restriction? Is it sufficient that the new restriction serves the public policy 
objective, or is it also required that the restriction be suitable for achieving that 
objective and not go beyond what is necessary to attain it? 
Provisions of European Union law relied on  
Additional Protocol signed on 23 November 1970, annexed to the Agreement 
establishing the Association between the EEC and Turkey (OJ 1973 C 113, p. 17), 
Article 59. 
Decision No 1/80 of the Association Council of 19 September 1980 on the 
development of the Association, Articles 6, 7, 13 and 14. 
Directive 2004/38/EC of the European Parliament and 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 (OJ 2004 L 158, p. 77), 
Article 28. 
Provisions of national law relied on 
Vreemdelingenwet 2000 (Law on foreign nationals of 2000) 
Vreemdelingenbesluit 2000 (Decree on foreign nationals of 2000), as amended by 
Article I of the Besluit van 26 maart 2012, houdende wijziging van het 
Vreemdelingenbesluit 2000 in verband met aanscherping van de glijdende schaal 
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(Decree of 26 March 2012 amending the Decree on Foreign Nationals of 2000 as 
regards the tightening of the sliding scale). 
Succinct presentation of the facts and procedure in the main proceedings 
1 Before 2012, it was no longer possible in the Netherlands to terminate the right of 
residence of foreign nationals after a period of lawful residence of more than 
twenty years. In that year, an amendment to the Decree on foreign nationals came 
into force by which the so-called sliding scale was adjusted. That term refers to a 
regulation by which an increasingly strict standard applies to the termination of a 
residence permit on grounds of public policy. The longer a foreign national has 
been in the Netherlands, the more serious must be the crimes of which he or she 
has been convicted in order for his or her residence permit to be withdrawn. Since 
2012, it has been possible to withdraw a residence permit even after twenty years 
for various serious crimes punishable by a custodial sentence of more than three 
years. 
2 However, it is questionable whether the new tighter sliding scale can be applied to 
Turkish nationals, as this adjustment constitutes a new restriction as referred to in 
Article 13 of Decision No 1/80. That article prohibits the introduction of new 
provisions that make Turkish nationals’ access to employment in the EU more 
difficult. In the case of foreign national S, who was convicted of 39 counts of 
robbery and trafficking in hard drugs, the Rechtbank (District Court) held that the 
new sliding scale could not be applied. The State Secretary has lodged an appeal 
with the referring court. 
3 However, in the comparable cases of foreign nationals E and C, the court of first 
instance ruled that, pursuant to Article 14 of Decision No 1/80, the application of 
Article 13 is excluded in the case of restrictions on the grounds of public policy, 
public security and public health, and that the new sliding scale therefore does 
apply. In those cases, foreign nationals E and C have lodged appeals. 
The essential arguments of the parties in the main proceedings 
4 The State Secretary is primarily of the view that foreign nationals S, E and C 
cannot rely on Article 13 of Decision No 1/80 because they already derive rights 
from Article 6 or Article 7 of that decision. The latter provisions protect the rights 
of Turkish nationals who take up employment in the EU. Those rights are 
progressively extended in proportion to the duration of their employment in a 
Member State. Since those two provisions already fully protect the rights of 
Turkish nationals in the field of employment, Article 13 of Decision No 1/80 
cannot have as its purpose the protection of such rights. The latter article is 
intended only to protect Turkish nationals who wish to acquire the rights provided 
for in Articles 6 and 7. Article 13 thus protects them against the tightening of 
national law which makes access to employment more difficult. According to the 
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State Secretary, this follows from the judgment of 21 October 2003, Abatay, 
C-317/01 and C-369/01, EU:C:2003:572, paragraphs 78 and 79. 
5 If, in principle, Article 13 of Decision No 1/80 does apply to the cases in the main 
proceedings, the State Secretary argues that, having regard to Article 14 of that 
decision, foreign nationals S, E and C can nevertheless not rely on it in the present 
cases because they pose a threat to public policy. According to the State Secretary, 
this can be inferred from the judgments of 7 November 2013, Demir, C-225/12, 
EU:C:2013:725, 12 April 2016, Genc, C-561/14, EU:C:2016:247, and 29 March 
2017, Tekdemir, C-652/15, EU:C:2017:239. Thus, pursuant to Article 14 of 
Decision No 1/80, the new sliding scale may be applied to foreign nationals S, E 
and C. 
6 According to these foreign nationals, the State Secretary has misinterpreted the 
Abatay judgment. After all, it would be strange if a Turkish national who satisfied 
all the requirements for a right of residence under Article 6 or Article 7 of 
Decision No 1/80 was less well protected against a restriction of that right of 
residence than a Turkish national who did not yet satisfy all the requirements. 
7 Moreover, Article 14 of Decision No 1/80 is not intended to have the effect of 
somehow preventing the application of Article 13 on grounds of public policy. A 
new restriction is only justified on grounds of public policy if it is suitable for 
safeguarding public policy and does not go beyond what is necessary for that 
purpose. The foreign nationals must represent a present, genuine and sufficiently 
serious threat affecting one of the fundamental interests of society, and the 
principle of proportionality must not preclude withdrawal [of a residence permit]. 
According to the foreign nationals, that is evident from the aforementioned Demir 
judgment and the judgment of 8 December 2011, Ziebell, C-371/08, 
EU:C:2011:809. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
Question 1 
8 The referring court doubts whether the State Secretary may interpret the Abatay 
judgment as meaning that Turkish nationals who already derive rights from 
Article 6 or Article 7 of Decision No 1/80 can no longer rely on Article 13. 
Indeed, it follows from the judgment of 17 September 2009, Sahin, C-242/06, 
EU:C:2009:554, paragraph 51, that ‘Article 6 governs the conditions in which 
actual employment permits the gradual integration of the person concerned in the 
host Member State, while Article 13 concerns the national measures relating to 
access to employment’. However, this does not necessarily mean that Article 13 is 
not applicable if a foreign national derives rights from Article 6 or Article 7. In the 
Abatay judgment, the Court of Justice may have intended only to reject the 
German Government’s contrary view that Article 13 applies only if Article 6 also 
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applies. That is presumably why it held that Article 13 applies if Article 6 does not 
apply. 
9 The objective of Decision No 1/80 to allow the free movement of Turkish workers 
and their gradual integration into the host Member State appears to be at odds with 
the view that a Turkish national loses the protection of Article 13 of Decision 
No 1/80 on becoming progressively more integrated in the host Member State. 
Moreover, it would also follow from the aforementioned Genc and Tekdemir 
judgments and from the judgments of 10 July 2019, A, C-89/18, EU:C:2019:580, 
and of 29 April 2010, Commission v Netherlands, C-92/07, EU:C:2010:228, that 
Article 13 of Decision No 1/80 applies to all national measures which may 
adversely affect the pursuit of an economic activity within Union territory, and not 
only to restrictions relating to the first admission to the territory of the Member 
State. 
10 Since it is not clear from the abovementioned case-law of the Court of Justice 
whether a foreign national who derives rights from Article 6 or Article 7 of 
Decision No 1/80 may still rely on Article 13 of Decision No 1/80, the referring 
court is of the view that it is necessary to refer the first question to the Court of 
Justice for a preliminary ruling. 
Question 2 
11 If Turkish nationals who derive rights from Article 6 or Article 7 of Decision 
No 1/80 are still able to rely on Article 13 of Decision No 1/80, the question arises 
whether they can also do so if, due to their personal conduct, they constitute a 
threat to public policy. Article 13 of Decision No 1/80 is addressed to the Member 
States and prohibits them from introducing new measures which have the object 
or effect of making Turkish nationals subject to more restrictive conditions in the 
field of freedom of movement (see Demir judgment, paragraph 33). A Turkish 
national can request a court or tribunal to declare inapplicable new rules of 
national law that conflict with that article (see Sahin judgment, paragraph 62). If a 
foreign national poses a threat to public policy due to his or her personal conduct 
and therefore satisfies Article 14 of Decision No 1/80, it is not obvious that the 
prohibition laid down in Article 13 automatically ceases to apply. After all, that 
prohibition is addressed to the Member States and has no connection whatsoever 
with the personal conduct and personal circumstances of Turkish nationals. 
12 However, the Court of Justice has also ruled in the aforementioned Ziebell 
judgment, paragraph 82, that a Member State can restrict the rights ensuing from 
Articles 6 and 7 of Decision No 1/80 if the personal conduct of a Turkish national 
constitutes a present, genuine and sufficiently serious threat to a fundamental 
interest of society, and the restriction of those rights is proportionate. At the same 
time, the fundamental rights of the foreign national, in particular, the right to 
privacy and family life, must be respected. 
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13 The referring court therefore raises the question whether it is not rather the case 
that the importance of not being confronted with new restrictions as referred to in 
Article 13 of Decision No 1/80 must be taken into account when assessing the 
personal conduct of the foreign national and compliance with the principle of 
proportionality. On the basis of that assessment, the rights derived from Article 6 
or Article 7 of Decision No 1/80 could possibly be terminated in any case. In that 
event, reliance on Article 13 would no longer be relevant. According to the 
referring court, it is therefore not clear from the abovementioned case-law of the 
Court of Justice whether a Turkish national who constitutes a threat to public 
policy can still rely on the fact that a new measure which is contrary to Article 13 
of Decision No 1/80 must be disapplied, and it therefore refers the second 
question for a preliminary ruling. 
Question 3 
14 In the cases in the main proceedings, the tightening of the sliding scale was 
prompted by changed social perceptions on the protection of public policy. In the 
Explanatory Memorandum to the decree that made it possible to withdraw 
residence permits after more than 20 years of lawful residence, it is stated that the 
previous regulation at times did not take adequate account of people’s sense of 
justice. Sometimes, despite a long period of residence, it was considered necessary 
to be able to terminate the right of residence. The question is whether those 
changed social perceptions justify the tightening of the sliding scale. 
15 According to the referring court, it is not clear from the case-law of the Court of 
Justice when a new legislative measure which is contrary to Article 13 of Decision 
No 1/80 is nevertheless justified in the interests of public policy. It does not 
follow clearly from paragraph 40 of the previously mentioned Demir judgment 
whether a new restriction is only required to be in the interests of public policy or 
whether such a new restriction must also be suitable for achieving the legitimate 
objective pursued and not go beyond what is necessary for that purpose. The latter 
requirement provides less scope for Member States to introduce new restrictions 
within the meaning of Article 13 of Decision No 1/80 and seems to be supported 
by the judgments of 22 December 2010, Bozkurt, C-303/08, EU:C:2010:800, 
paragraph 56, and of 22 May 2012, I., C-348/09, EU:C:2012:300, paragraph 23. 
However, in the latter judgment, the Court of Justice also held that Member States 
retain the freedom ‘to determine the requirements of public policy and public 
security in accordance with their national needs, which can vary from one 
Member State to another and from one era to another’. It follows from the 
judgment of 4 December 1974, Van Duyn, 41/74, EU:C:1974:133, paragraph 18, 
that the national authorities have a certain margin of discretion in that respect. It is 
obvious that this also applies to the tightening of legal measures in the interests of 
public policy. 
16 The referring court raises the question whether the tightening of the sliding scale 
due to changes in social perceptions takes sufficient account of the restrictive 
interpretation that must be given to the concept of public policy and whether it 
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still falls within a Member State’s margin of discretion. For that reason, the third 
question is referred for a preliminary ruling.