OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 8 September 2022 ( 1 )

Case C‑279/21

X

v

Udlændingenævnet

(Request for a preliminary ruling from the Østre Landsret (High Court of Eastern Denmark, Denmark))

(Reference for a preliminary ruling – EEC-Turkey Association Agreement – Family reunification between spouses – Article 13 of Decision No 1/80 – Standstill rule – Turkish worker who already holds a permanent residence permit in the host Member State – Requirement that a language test be successfully taken which is imposed on the Turkish worker in connection with the processing of the application for family reunification submitted by his spouse – New restriction – Justification – Overriding reason in the public interest with a view to successful integration – Review of necessity, appropriateness and proportionality)

Introduction

1. On numerous occasions the Court has assisted national courts in assessing the conformity with EU law of national rules or legislation laying down the requirements with which family members of Turkish workers already present within the territory of the European Union and, in general, already duly registered as belonging to the labour force should comply in order to be permitted to join them. Some Member States have opted to require those family members to prove that they meet minimum language requirements which are deemed necessary with a view to their future integration into the society of the Member State concerned. ( 2 ) The situation at issue in the main proceedings is atypical in that the Kingdom of Denmark has opted to impose such a language requirement not on family members who wish to join the Turkish worker in Denmark, but on the Turkish worker himself who is already present in Denmark and duly registered as belonging to the labour force, before family reunification is authorised.

2. Y is a Turkish national who entered Denmark on 27 September 1979, where he has lived ever since. He has held a permanent residence permit in Denmark since 1985. X was born in Turkey and is a Turkish national. She married Y in Turkey on 10 July 2015. On 14 August 2015, she entered Denmark and then, on 21 October 2015, submitted an application for a residence permit for the purpose of family reunification in Denmark on the basis of her marriage to Y.

3. In connection with the Danish authorities’ examination of the application submitted by X, Y was required to provide certain information. In particular, he stated that he had not passed the ‘Prøve i Dansk 1’ test or an equivalent test. He instead stated that he had completed a basic course in building and construction consisting in 320 lessons in Danish. He also stated that, on account of his professional activity and his status as a Turkish worker, he should not have to meet a language requirement. He indicated that he did not suffer from a disability or any other disorder which could justify a difficulty in passing the test. He pointed out that he had been working in Denmark since 1980, that he has four adult children, that his mother and eight siblings live in Denmark and that he does not have any siblings in Turkey.

4. On 1 March 2016, the Udlændingestyrelsen (Immigration Office, Denmark) refused the application submitted by X for a residence permit for the purpose of family reunification with Y on the ground that Y had not demonstrated that he had successfully taken the ‘Prøve i Dansk 1’ language test or an equivalent test. Although Paragraph 9(1)(1)(d) of the Udlændingeloven lovbekendtgørelse nr. 1021 af 19. September 2014 (Law on foreign nationals as published by Consolidating Decree No 1021 of 19 September 2014, ‘the Law on foreign nationals’), provided that, upon application, a residence permit could be issued to any foreign national above 24 years of age who shares a common residence in marriage with a resident of Denmark who is also above 24 years of age and has held a permanent residence permit in Denmark for more than 3 years, subparagraph 12(5) of that provision specified that, save for special reasons, including considerations of family unity, a residence permit under subparagraph 1(1)(d) of that provision could be issued only if the person resident in Danish territory had successfully taken the ‘Prøve i Dansk 1’ test in accordance with Paragraph 9(1) of the Lov om danskuddannelse til voksne udlændinge m.fl (Law on Danish language education for adult foreign nationals) or a Danish test at an equivalent or higher level. Furthermore, in the view of the Immigration Office, there were no special reasons which would have required it to grant the application submitted by X despite the fact that Y had not successfully taken the test, as it did not appear to be contrary to the Kingdom of Denmark’s international obligations to refuse the application. The Immigration Office added that this conclusion was not called into question by the standstill clause as interpreted the Court in Dogan. ( 3 )

5. On 25 April 2016, the Danish authorities granted X a residence permit in Denmark on the basis of activity as an employed person, which was extended on 14 September 2017 up to 13 September 2021.

6. X lodged an administrative appeal with the Udlændinge-, Integrations- og Boligministerium (Ministry of Immigration, Integration and Housing, Denmark) ( 4 ) against the section of the decision of 1 March 2016 relating to EU law and, in particular, sought a review of the compatibility of that decision with the judgment in Dogan. ( 5 ) On 6 December 2017, the Ministry of Immigration, Integration and Housing upheld the Immigration Office’s decision, taking the view that the Immigration Office had adequately weighed and assessed specifically whether there were special reasons to justify the grant to X of a residence permit in Denmark for the purpose of family reunification when Y had not successfully taken the Danish language test. By order of 22 November 2019, the action for annulment brought by X against the decision of 6 December 2017 was remitted to the referring court, which is ruling at first instance. Before the referring court, the Udlændingenævnet (Immigration Appeals Board, Denmark; ‘the Appeals Board’) replaced the Ministry as the defendant in the main proceedings.

7. According to the order for reference, the Danish language training which is certified by the ‘Prøve i Dansk 1’ test includes courses in Danish language and culture and civic education. It is targeted at participants who have never attended school or who have a lower level of education and who have not learned to read and write in their native language. The requirement to pass this test, which must be satisfied by the Turkish worker for the examination of the application for a residence permit submitted by his spouse who wishes to join him in Denmark, was introduced by an amendment to the Law on foreign nationals in 2012. ( 6 ) It includes a requirement which must be met by any applicant who is a third-country national ( 7 ) in order to be granted a permanent residence permit in Denmark. It is now a requirement for foreign nationals who already hold a permanent residence permit issued under legislation which did not impose any language requirement in order to be eligible for such a residence permit, as was the case for Y, where those nationals request to be joined by their spouse in Denmark. The referring court states that, at the time when Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association between the European Economic Community and Turkey ( 8 ) entered into force, there was no rule requiring that a Turkish worker already present in Denmark must successfully take a Danish language test in order for his or her spouse to be permitted to join him or her.

8. In the first place, the referring court enquires whether a national measure like that at issue in the main proceedings which, as a condition for the grant of a residence permit for the purpose of family reunification to the spouse of a Turkish national residing legally and working in the host Member State, requires that a language test be successfully taken constitutes a ‘new restriction’ within the meaning of the ‘standstill’ clause in Article 13 of Decision No 1/80 ( 9 ) and, if so, whether such a restriction may be justified by the objective of ensuring the successful integration of the foreign spouse.

9. The referring court notes in this regard that there is abundant case-law of the Court of Justice concerning Article 13 of Decision No 1/80, ( 10 ) the Court having ruled in particular that the ‘standstill’ clause contained in that provision precludes the introduction by a Member State of new restrictions on the possibility of securing family reunification unless such a restriction 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. ( 11 ) While the Court has already acknowledged that the objective of achieving successful integration may constitute an overriding reason in the public interest, ( 12 ) it has also ruled that a condition requiring the applicant spouse of a Turkish national residing in the Member State concerned, who wishes to enter the territory of that State for the purpose of family reunification, to demonstrate beforehand that he or she has acquired basic knowledge of the official language of that Member State, went, in practice, beyond what is necessary in order to attain the objective pursued, on the ground that the absence of evidence of sufficient linguistic knowledge automatically led to the dismissal of the application for family reunification, without account being taken of the specific circumstances of each case. ( 13 ) X has claimed before the referring court that Paragraph 9(12)(5) of the Law on foreign nationals is not compatible with Article 13 of Decision No 1/80 as it goes beyond what is necessary in order to attain the objective of successful integration in so far as passing the language test is the only way in which the resident foreign national can demonstrate the ability to integrate, without account being taken of other criteria. X also claims that in reality there is no possibility to derogate from that requirement, as failure to pass that test results in the application for a residence permit for the purpose of family reunification being refused.

10. In the second place, the referring court enquires whether the prohibition of discrimination on the basis of nationality laid down in Article 10(1) of Decision No 1/80 ( 14 ) precludes a national measure like that at issue in the main proceedings in so far as it is not applied to Danish nationals or to nationals of Member States of the European Union and the European Economic Area (EEA). It notes in this regard that, according to its wording, that provision concerns remuneration and other conditions of work and it has doubts whether the national measure at issue in the main proceedings can be considered to fall within the scope ratione materiae of that provision. While X claims that the legislation at issue in the main proceedings comes under ‘other conditions of work’ within the meaning of that provision, the Appeals Board disputes that contention and, in any event, maintains that the difference in treatment to which the language requirement gives rise is not contrary to the prohibition of discrimination implemented by Article 10 of Decision No 1/80.

11. In the third place, if the Court were to consider that Article 10(1) of Decision No 1/80 is not applicable in the present case, the referring court asks whether the general prohibition of discrimination laid down in Article 9 of the Association Agreement may be applied ( 15 ) and, if so, whether that provision precludes a national measure like that at issue in the main proceedings. X claims that the legislation at issue in the main proceedings constitutes direct discrimination against Turkish nationals, on grounds of nationality, compared with the treatment afforded to Danish nationals, nationals of other Nordic countries and EU citizens, who are not required to satisfy any such requirement in order to be eligible for family reunification. By contrast, the Appeals Board asserts that the situation of X is governed exclusively by Decision No 1/80 and not by the Association Agreement itself, as she does not derive rights from the agreement, and that in any case there is no discrimination. In any event, Danish nationals, nationals of other Nordic countries and EU citizens are not in a comparable situation to Turkish workers.

12. In the fourth and last place, the referring court wishes to know whether Article 9 of the Association Agreement has direct effect and can thus be relied on directly by individuals before national courts. X claims that the prohibition of discrimination laid down in Article 9 can be relied on directly and applies independently. The Appeals Board asserts that Article 9 is a general rule which is specified and put into effect in Article 10 of Decision No 1/80 and that its generality and the nature and purpose of the Association Agreement preclude that Article 9 being recognised as having direct effect.

13. In those circumstances, the Østre Landsret (High Court of Eastern Denmark, Denmark) decided to stay the proceedings and, by decision received at the Court Registry on 28 April 2021, to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Does the standstill clause in Article 13 of Decision No 1/80 preclude the introduction and application of a national rule which, as a condition for the reunification of spouses, requires – unless there are particularly compelling reasons in a specific case – that a language test in the host Member State’s official language be successfully taken by the spouse/cohabitant who, as a Turkish worker in the EU Member State concerned, is covered by the Association Agreement and by Decision No 1/80, in a situation such as that in the main proceedings, in which the Turkish worker has acquired the right of permanent residence in the EU Member State concerned under the rules previously in force, which did not require that a test in the language of the Member State concerned be successfully taken as a precondition for the acquisition of that right? (2) Does the specific prohibition of discrimination laid down in Article 10(1) of Decision No 1/80 cover a national rule which, as a condition for the reunification of spouses, requires – unless there are particularly compelling reasons in a specific case – that a language test in the host Member State’s official language be successfully taken by the spouse/cohabitant who, as a Turkish worker in the EU Member State concerned, is covered by the Association Agreement and by Decision No 1/80, in a situation such as that in the main proceedings, in which the Turkish worker has acquired the right of permanent residence in the EU Member State concerned under the rules previously in force, which did not require that a test in the language of the Member State concerned be successfully taken as a precondition for the acquisition of that right? (3) If the answer to the second question is in the negative, does the general prohibition of discrimination laid down in Article 9 of the Association Agreement then preclude a national rule, such as that mentioned, in a situation such as that in the main proceedings, in which the Turkish worker has acquired the right of permanent residence in the EU Member State concerned under the rules previously in force, which did not require that a language test in the official language of the host Member State be successfully taken as a precondition for the acquisition of that right, when such a requirement is not imposed on nationals of the Nordic Member State concerned (in this case, Denmark) and of the other Nordic countries, or on others who are nationals of an EU country (and is thus not imposed on EU/EEA nationals)? (4) If the answer to the third question is in the affirmative, can the general prohibition of discrimination laid down in Article 9 of the Association Agreement be relied on directly before national courts?’

14. Written observations were submitted by X, the Danish Government and the European Commission, which each also presented oral argument at the hearing held before the Court on 18 May 2022.

Analysis

15. It should be stated at the outset that, through the questions which it has referred to the Court for a preliminary ruling, the national court is seeking to ascertain whether national legislation under which an application for family reunification submitted by the spouse of a Turkish worker will be granted only if that worker is able to prove that he or she has successfully taken a Danish language test is compatible with Decision No 1/80 (more precisely, Article 10(1) and Article 13 thereof) and/or with the Association Agreement (in this instance Article 9 thereof). However, it need only to be found that one of those three provisions precludes the rules at issue in the main proceedings for the referring court to settle the dispute before it. On the basis of my analysis, the situation described by the referring court and clarified in the oral proceedings before the Court appears to be manifestly contrary to Article 13 of Decision No 1/80. Accordingly, this Opinion will focus hereinafter on that provision alone, and therefore solely on the first question referred for a preliminary ruling.

16. By its first question, the referring court asks, in essence, whether Article 13 of Decision No 1/80 is to be interpreted as meaning that national legislation like that at issue in the main proceedings which, as a condition for family reunification with a Turkish worker legally resident in Denmark for his or her spouse who is a third-country national, requires the worker to have successfully taken a test evidencing a certain knowledge of Danish constitutes a ‘new restriction’ and, if so, whether such a measure can be justified.

The existence of a new restriction

17. It should be noted that the standstill clause contained in Article 13 of Decision No 1/80 prohibits generally the introduction of any new national measure having the object or effect of making the exercise by a Turkish national of the freedom of movement for workers on national territory subject to conditions more restrictive than those which applied at the time when Decision No 1/80 entered into force with regard to the Member State concerned. ( 16 ) The Court has repeatedly held that national legislation which tightens the conditions for family reunification of Turkish workers legally resident in the Member State in question, in relation to the conditions applicable at the time when Decision No 1/80 entered into force in that Member State, constitutes a ‘new restriction’, within the meaning of that provision, on the exercise by such Turkish workers of the freedom of movement in that Member State. ( 17 )

18. According to the order for reference, Paragraph 9(12)(5) of the Law on foreign nationals, which, in connection with an application for a residence permit for the purpose of family reunification with a spouse who is a Turkish worker, requires a spouse who is a third-country national to prove that the worker has successfully taken a test evidencing basic knowledge of Danish, tightened, in the area of family reunification, the conditions governing the first admission to Danish territory of spouses of Turkish nationals residing legally in Denmark, in relation to the conditions which were applicable when Decision No 1/80 entered into force in that Member State. ( 18 )

19. According to settled case-law, family reunification constitutes an essential way of making possible the family life of Turkish workers who belong to the labour force of the Member States, and contributes both to improving the quality of their stay and to their integration in those Member States. ( 19 ) The decision of a Turkish national to establish himself or herself in a Member State in order to exercise there a stable economic activity could be negatively affected where the legislation of that Member State makes family reunification difficult or impossible, so that that national could, as the case may be, find himself or herself obliged to choose between his or her activity in the Member State concerned and his or her family life in Turkey. In those circumstances, legislation which makes family reunification more difficult by tightening the conditions of first admission to the territory of the Member State concerned by spouses of Turkish nationals in relation to those conditions applicable when Decision No 1/80 entered into force constitutes a ‘new restriction’ within the meaning of Article 13 of that decision. ( 20 )

20. This is the effect of Paragraph 9(12)(5) of the Law on foreign nationals, which, by imposing on the Turkish worker himself a requirement which did not previously apply and which must be satisfied in order for his spouse to be granted a residence permit for purposes of family reunification, therefore constitutes a ‘new restriction’ within the meaning of Article 13 of Decision No 1/80, which is not contested, moreover, by the Danish Government.

21. Such a restriction is prohibited unless it falls within the restrictions referred to in Article 14 of Decision No 1/80 ( 21 ) or 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. ( 22 ) As it is not apparent from the documents before the Court that the legislation at issue in the main proceedings falls within the restrictions referred to in Article 14 of Decision No 1/80, it must be established, first, whether that new restriction can be justified by an overriding reason in the public interest.

The existence of an overriding reason in the public interest

22. The Danish Government asserts that the objective purportedly pursued by Paragraph 9(12)(5) of the Law on foreign nationals is to ensure successful integration. The ratio legis of Paragraph 9(12)(5) of the Law on foreign nationals was clarified, moreover, by the referring court, which mentioned Draft Law No L 180 of 26 April 2012 (which gave rise to the adoption of the Law on foreign nationals in its version applicable to the dispute in the main proceedings) and, in particular, section 3.8 of that draft law, in which the Government stated that ‘in order to be able to bring a foreign spouse to Denmark, resident foreign nationals must be well integrated and have a link with Danish society. The integration of a foreign spouse into Danish society is made easier if the resident is able to support his or her spouse and help him or her to settle, learn Danish and access the labour market’. ( 23 ) Consequently, family reunification for spouses should be made subject to the requirement that resident foreign nationals hold a permanent residence permit, the grant of which is now conditional on the passing of a language test, since the resident foreign national must be able to contribute to the integration of his or her spouse into Danish society. The Danish Government further states in the draft law in question that resident foreign nationals who were granted such a residence permit before this requirement was introduced will not currently have proved that they are well integrated. That is why the Danish Government has proposed to impose on resident foreign nationals who are seeking family reunification with their spouse who is a third-country national and who already hold a permanent residence permit a number of new requirements for the grant of that permit, including successfully taking a Danish language test.

23. Accordingly, the Danish authorities asserted before the referring court that Paragraph 9(12)(5) of the Law on foreign nationals was justified by an overriding reason in the public interest with a view to ensuring successful integration. The Danish Government has further stated before the Court that the requirement that a Danish language test be successfully taken is based on the idea that if the resident knows Danish, he or she will be better able to support his or her spouse in the process of integration into Danish society.

24. The Court has already acknowledged that where the declared objective of a measure consists in ensuring the successful integration of third-country nationals in the host State, that objective may, in principle, constitute an overriding reason in the public interest for the purposes of Article 13 of Decision No 1/80. ( 24 )

25. I note, however, that the arguments put forward by the Danish legislature, then by the Danish Government before the Court, are not entirely unambiguous as regards the group specifically covered by the objective of successful integration. The requirement that a language test be successfully taken applies to a Turkish worker where, it seems, it is wished to evaluate his or her degree of integration, or his or her ‘ability to integrate’ to use the expression employed by X, ( 25 ) before determining whether he or she will be able to support his or her spouse on the path to integration. This ambiguity would seem problematical on several levels. First, as I have noted, the Court has ruled that family reunification contributes specifically to improving the quality of the stay and to the integration of the Turkish worker in the host Member State. ( 26 ) Second, as the Commission has stated, I do not think that a Turkish worker whose situation is consolidated having regard to Article 6 of Decision No 1/80 can be required to prove the intensity of his or her integration.

26. In those circumstances, Paragraph 9(12)(5) of the Law on foreign nationals is considered to pursue a legitimate objective only in so far as the overriding reason in the public interest relied on has no purpose other than to ensure the successful integration of spouses of third-country nationals requesting family reunification with them.

27. With that proviso, it must therefore be ascertained whether Paragraph 9(12)(5) of the Law on foreign nationals is suitable to achieve the legitimate objective pursued and does not go beyond what is necessary in order to attain it.

The appropriateness of the new restriction

28. As I stated above, the Danish legislature proceeds from the premiss that if the Turkish worker is ‘well’ integrated into Danish society, the integration of the spouse who wishes to join him or her will be made easier. The preparatory documents mention studies confirming this link. I can accept that a worker who intends to bring his or her spouse into his or her household and who has been present in Denmark for some time, knows Danish, is involved in local life and has Danish friends will actually be able to have a positive influence on the acculturation process for his or her spouse. ( 27 )

29. However, a first problem arises in analysing Paragraph 9(12)(5) of the Law on foreign nationals in the light of the appropriateness requirement, as that provision establishes an exclusive link between integration, on the one hand, and knowledge of the Danish language, on the other. An individual’s integration into a host society is a complex and multifactorial process that cannot be reduced to possession of certain basic knowledge of the language alone, a fortiori where this is not required of the individuals themselves but of their spouses.

30. A second problem then arises, which I consider to be even more serious. While I can certainly accept that the integration of the spouse may potentially be made easier if the Turkish worker already present in Denmark has basic knowledge of Danish language, culture and society, I firmly take issue with the idea that the spouse’s integration would be prevented or doomed to failure if that were not the case. In other words, it is not possible to make a prognosis that the spouse will be unable to integrate merely because the Turkish worker cannot himself or herself prove that he or she has successfully taken the required test.

31. It also appears extremely problematical, in terms of justification of the new restriction at issue, that the Danish Government acknowledged, in response to a question asked by the Court, that even if it transpired that the spouse of Y was bilingual and fluent in Danish, her application for family reunification would nonetheless be refused as Y would still not have proven that he had successfully taken the ‘Prøve i Dansk 1’ test. That assertion runs firmly counter to the premiss underlying Paragraph 9(12)(5) of the Law on foreign nationals, according to which there is an inseparable link between the ability to communicate in the language of the host State and the success of integration since, following that logic, spouses who have every prospect of being able to integrate smoothly into the society of the host Member State on the basis of their own knowledge of the language would nonetheless be refused a residence permit for purposes of family reunification. That statement then inevitably calls into question, I feel, the real nature of the objective pursued by the measure at issue.

32. Accordingly, since it is apparent from the documents before the Court that taking the test successfully is a necessary requirement for the grant of a residence permit to the spouse of the Turkish worker already present in the host State and duly registered as belonging to its labour force, without any account being taken of the spouse’s own ability to integrate, even though the objective purported pursued is the successful integration of the spouse, the national measure at issue in the main proceedings, in so far as it does not make it possible to assess the real integration prospects of the applicant for a residence permit for the purpose of family reunification, does not appear suitable for ensuring the successful integration of such third-country nationals in Denmark. ( 28 )

Proportionality

33. If the Court were to rule that the new restriction to which Paragraph 9(12)(5) of the Law on foreign nationals gives rise is suitable to achieve the legitimate objective pursued, it will still have to be ascertained that that provision does not go beyond what is necessary in order to attain it.

34. In this regard, first, I note that the requirement that the ‘Prøve i Dansk 1’ test be successfully taken applies to all Turkish workers without any assessment of other circumstances that would demonstrate their real integration into Danish society. Thus, as in the case of Y, a working life, as well as various contributions to Danish society, would not appear to be sufficient to exempt him from that requirement when his spouse requests to join him in Denmark. Paragraph 9(12)(5) of the Law on foreign nationals therefore seems to establish an irrebuttable presumption that a Turkish worker who cannot demonstrate that he or she has successfully taken the language test would not be integrated. However, for a Turkish worker who has been present in Denmark since 1979 – a period of 36 years when his spouse requested to join him – other evidence of his capacity to support his spouse in her integration process should be taken into account, such as the Danish language courses taken by him. ( 29 ) The lack of proportionality becomes fairly evident given that there is no possibility to balance or offset the inability to prove that the ‘Prøve i Dansk 1’ test has been successfully taken against the social and cultural integration that is bound to stem from 36 years of working life in a host country or, at least, the other factors which are capable of demonstrating that, if necessary, the spouse will be able to be supported in the integration process by the Turkish worker who is already present in the host Member State.

35. The reason why proof that the ‘Prøve i Dansk 1’ test has been successfully taken is a such a necessary requirement for authorisation of family reunification with the spouse is also difficult to comprehend as it is evident from the national rules that once spouses’ stays have been authorised for purposes of family reunification, they will have to take a test themselves, within six months of their arrival in Denmark, to assess the competences acquired in the compulsory courses that they are required to take, the objective of which also seems to be to ensure the successful integration of spouses, once they have entered Danish territory.

36. In this regard, without seeking to replace the national legislature but, on the contrary, endeavouring to understand the rules as implemented, I cannot fail to see a certain lack of consistency in denying X a residence permit for purposes of family reunification with her spouse on the ground that he has not successfully taken the ‘Prøve i Dansk 1’ test, which is supposed to demonstrate that he has basic knowledge of Danish language and Danish society, which will be helpful for the integration of his spouse into Danish society while, at the same time, granting her a residence permit in 2016 in order to pursue an activity as an employed person, which was then renewed until 2021. ( 30 )

37. Second, it is true that administrative practice like that described by the referring court, then by the Danish Government, does not reveal a systematic practice of refusing applications for residence permits for the purpose of family reunification ( 31 ) on the ground that the spouse does not satisfy the requirement of having successfully taken the language test. This does not, however, necessarily make that practice proportionate. There must also be genuine possibilities of derogating from that requirement. It is clear from the documents before the Court that there are a very small number of such situations, which never allow sufficient account to be taken of the particular circumstances surrounding each application for family reunification and relating to the individual applicant. I have already explained that, even if a spouse is fluent in the language of the host State, his or her application for a residence permit for the purpose of family reunification would be refused if the Turkish worker already present in that State was not able to demonstrate that he or she had successfully taken the language test. In my view, this shows that provision is not made for genuine derogations or at least that insufficient account is taken of the specific circumstances of each case. ( 32 )

38. Contrary to the assertion made by the Danish Government, I do not think that the legislation is of the same kind as was at issue in the case that gave rise to the judgment in Udlændingenævnet. ( 33 ) In that judgment, the Court ruled on a new restriction which consisted in lowering the age below which a child of a Turkish worker residing legally in the territory of the host Member State could submit an application for family reunification. The Court ruled that such a measure was proportionate as Danish law provided for exceptions to the application of the provision at issue in the dispute in the main proceedings, in particular where the best interests of the child so demanded, in which case the Danish authorities were required to carry out an individual assessment of the child’s situation and, in each individual case, to take those interests into consideration. ( 34 ) The present case differs from that case in that it does not appear that an individual assessment of language capabilities or integration prospects will be carried out in respect of the applicant herself in order to ascertain whether a derogation from the requirement to be satisfied by the worker should be granted.

39. On the contrary, it is clear from examining the documents before the Court ( 35 ) that a derogation from the requirement that the ‘Prøve i Dansk 1’ test has been successfully taken is possible only in the light of ‘special reasons’ connected in particular with the Kingdom of Denmark’s international obligations and only if it is not possible to request the Turkish worker to pursue his or her family life in the country of origin without such invitation constituting an infringement of those obligations. ( 36 )

40. In those circumstances, the new restriction to which Paragraph 9(12)(5) of the Law on foreign nationals gives rise appears to go beyond what is necessary in order to attain the objective pursued, which is, I would reiterate, the successful integration of the spouse seeking to join the Turkish worker in the host Member State.

Interim conclusion

41. In the final analysis and for all the reasons mentioned, a national measure like Paragraph 9(12)(5) of the Law on foreign nationals which, as a condition for family reunification between a Turkish worker who is duly registered as belonging to the labour force and legally resident in the Member State concerned and his or her spouse, requires that the worker has successfully taken a language test in order to ensure that the integration of the spouse, once he or she has entered the territory of the Member State in question, is successful constitutes a ‘new restriction’ within the meaning of Article 13 of Decision No 1/80. Such a restriction does not appear to be justified.

Conclusion

42. In the light of all the above considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Østre Landsret (High Court of Eastern Denmark, Denmark) as follows: A national measure which, as a condition for family reunification between a Turkish worker who is duly registered as belonging to the labour force and legally resident in the Member State concerned and his or her spouse, requires that the worker has successfully taken a language test in order to ensure that the integration of the spouse, once he or she has entered the territory of the Member State in question, is successful constitutes a ‘new restriction’ within the meaning of Article 13 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association between the European Economic Community and Turkey. Such a restriction is not justified.

( 1 ) Original language: French.

( 2 ) On this topic, see judgment of 10 July 2014, Dogan (C‑138/13, EU:C:2014:2066).

( 3 ) Judgment of 10 July 2014 (C‑138/13, EU:C:2014:2066).

( 4 ) Since then it has become the Udlændinge-og Integrationsministeriet (Ministry of Immigration and Integration, Denmark).

( 5 ) Judgment of 10 July 2014 (C‑138/13, EU:C:2014:2066).

( 6 ) Law No 572 of 18 June 2012 amending the Law on foreign nationals. According to the order for reference, the legislation previously in force dating from 2011 required a foreign national residing in Denmark to satisfy the requirement of having successfully taken a Danish language test at a slightly higher level, the ‘Prøve i Dansk 2’ test.

( 7 ) That condition does not apply to EU nationals or nationals of Member States of the European Economic Area.

( 8 ) The Association Council was established by the Agreement establishing an Association between the European Economic Community and Turkey, which was signed on 12 September 1963 in Ankara by the Republic of Turkey, on the one hand, and by the Member States of the EEC and the Community, on the other hand, and which was concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1964 217, p. 3685; ‘the Association Agreement’).

( 9 ) Article 13 of Decision No 1/80 provides that ‘the Member States of the Community and Turkey may not introduce new restrictions on the conditions of access to employment applicable to workers and members of their families legally resident and employed in their respective territories’.

( 10 ) Judgments of 10 July 2014, Dogan (C‑138/13, EU:C:2014:2066, paragraphs 38 and 39); of 12 April 2016, Genc (C‑561/14, EU:C:2016:247, paragraphs 51, 52, 66 and 67); of 29 March 2017, Tekdemir (C‑652/15, EU:C:2017:239, paragraph 53); of 7 August 2018, Yön (C‑123/17, EU:C:2018:632, paragraph 72); and of 10 July 2019, A (C‑89/18, EU:C:2019:580, paragraphs 31 to 34 and 45 to 47).

( 11 ) Judgment of 10 July 2019, A (C‑89/18, EU:C:2019:580).

( 12 ) Judgments of 12 April 2016, Genc (C‑561/14, EU:C:2016:247, paragraphs 55 and 56), and of 10 July 2019, A (C‑89/18, EU:C:2019:580, paragraph 38).

( 13 ) Judgment of 10 July 2014, Dogan (C‑138/13, EU:C:2014:2066, paragraph 38).

( 14 ) Article 10(1) of Decision No 1/80 provides that ‘the Member States of the Community shall as regards remuneration and other conditions of work grant Turkish workers duly registered as belonging to their labour forces treatment involving no discrimination on the basis of nationality between them and Community workers’.

( 15 ) That Article 9 provides that ‘the Contracting Parties recognise that within the scope of this Agreement and without prejudice to any special provisions which may be laid down pursuant to Article 8, any discrimination on grounds of nationality shall be prohibited in accordance with the principle laid down in Article 7 of the Treaty establishing the Community’.

( 16 ) See, amongst abundant case-law, judgments of 17 September 2009, Sahin (C‑242/06, EU:C:2009:554, paragraph 63 and the case-law cited); of 7 November 2013, Demir (C‑225/12, EU:C:2013:725, paragraph 33); of 29 March 2017, Tekdemir (C‑652/15, EU:C:2017:239, paragraph 25); of 10 July 2019, A (C‑89/18, EU:C:2019:580, paragraph 23); and of 2 September 2021, Udlændingenævnet (C‑379/20, EU:C:2021:660, paragraph 19).

( 17 ) See judgments of 12 April 2016, Genc (C‑561/14, EU:C:2016:247, paragraphs 39 to 42 and the case-law cited), and of 2 September 2021, Udlændingenævnet (C‑379/20, EU:C:2021:660, paragraph 20).

( 18 ) See by analogy, judgment of 2 September 2021, Udlændingenævnet (C‑379/20, EU:C:2021:660, paragraph 21).

( 19 ) Judgment of 10 July 2014, Dogan (C‑138/13, EU:C:2014:2066, paragraph 34 and the case-law cited).

( 20 ) See, by analogy, judgment of 10 July 2014, Dogan (C‑138/13, EU:C:2014:2066, paragraphs 35 and 36). With regard to Decision No 1/80, see judgment of 12 April 2016, Genc (C‑561/14, EU:C:2016:247, paragraphs 39, 40, 44 and 50).

( 21 ) Article 14(1) of Decision No 1/80 provides that ‘the provisions of this section shall be applied subject to limitations justified on grounds of public policy, public security or public health’.

( 22 ) See judgments of 7 November 2013, Demir (C‑225/12, EU:C:2013:725, paragraph 40); of 12 April 2016, Genc (C‑561/14, EU:C:2016:247, paragraph 51); of 29 March 2017, Tekdemir (C‑652/15, EU:C:2017:239, paragraph 33); of 7 August 2018, Yön (C‑123/17, EU:C:2018:632, paragraph 72); of 10 July 2019, A (C‑89/18, EU:C:2019:580, paragraph 31); and of 2 September 2021, Udlændingenævnet (C‑379/20, EU:C:2021:660, paragraph 23).

( 23 ) Italics added.

( 24 ) Judgments of 12 April 2016, Genc (C‑561/14, EU:C:2016:247, paragraphs 55 and 56); of 10 July 2019, A (C‑89/18, EU:C:2019:580, paragraph 34); and of 2 September 2021, Udlændingenævnet (C‑379/20, EU:C:2021:660, paragraphs 26 and 27).

( 25 ) See point 9 of this Opinion.

( 26 ) See point 19 of this Opinion.

( 27 ) It should be stated, however, that what I can accept here is based on a much broader conception of the integration process than seems to have been used by the Danish legislature.

( 28 ) See, by analogy, judgment of 10 July 2019, A (C‑89/18, EU:C:2019:580, paragraph 45).

( 29 ) See point 3 of this Opinion.

( 30 ) The linguistic conditions to which that permit might be subject are not clear from the documents before the Court.

( 31 ) With regard to the disproportionate nature of such a practice, see judgment of 10 July 2014, Dogan (C‑138/13, EU:C:2014:2066, paragraph 38).

( 32 ) See, by analogy, judgment of 10 July 2014, Dogan (C‑138/13, EU:C:2014:2066, paragraph 38).

( 33 ) Judgment of 2 September 2021 (C‑379/20, EU:C:2021:660).

( 34 ) See judgment of 2 September 2021, Udlændingenævnet (C‑379/20, EU:C:2021:660, paragraphs 31 to 33).

( 35 ) See the explanatory memorandum concerning Paragraph 9(12)(5) and section 2.5.3 of the draft law cited in paragraphs 14 and 15 of the request for a preliminary ruling.

( 36 ) The request for a preliminary ruling also mentions the case where, for example, the Turkish worker suffers from a disability which prevents him or her from successfully taking the language test, which can also constitute a special reason within the meaning of Paragraph 9(12)(5) of the Law on foreign nationals, likewise because it is connected with an international obligation entered into by the Kingdom of Denmark.