Case C-561/14: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 5 December 2014  — Caner Genc v Udlændingenævnet
Date: 2014-12-05
Institutions: Court of Justice
Subjects: Türkiye, association agreement (EU), family migration, freedom of movement, interpretation of the law, principle of proportionality








C_2015065EN.01002401.xml










23.2.2015   


EN


Official Journal of the European Union


C 65/24





Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 5 December 2014 — Caner Genc v Udlændingenævnet
(Case C-561/14)
(2015/C 065/34)
Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings


Applicant: Caner Genc

Defendant: Udlændingenævnet (Immigration Appeals Board)

Questions referred







1.


Must the standstill clause in Article 13 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association, attached to the Agreement of 12 September 1963 between the European Economic Community and Turkey establishing an Association between the European Economic Community and Turkey, and/or the standstill clause in Article 41(1) of the Additional Protocol of 23 November 1970, as confirmed by Council Regulation (EEC) No 2760/72 (1) of 19 December 1972, be interpreted as meaning that new and more stringent conditions on access to family reunification for family members who are not economically active, including minor children of economically active Turkish nationals who are resident and have a residence permit in a Member State, are covered by the standstill requirement having regard to:






—


the Court of Justice’s interpretation of the standstill clauses in particular in its judgments in Derin, C-325/05, EU:C:2007:442; Dülger, C-451/11, EU:C:2012:504; Ziebell, C-371/08, EU:C:2011:809 (Grand Chamber) and Demirkan, C-221/11, EU:C:2013:583 (Grand Chamber),










—


the aim and content of the Ankara Agreement, as interpreted in particular in the Ziebell and Demirkan judgments, and having regard to






—


the fact that the Agreement and the protocols and decisions, etc. attached thereto do not contain provisions on family reunification, and










—


the fact that family reunification within the then Community and the present European Union has always been governed by secondary law, at present the Free Movement Directive (Directive 2004/38/EC)? (2)



















2.


In answering Question 1, the Court is asked to indicate whether any derived right to family reunification for family members of economically active Turkish nationals who reside and have a residence permit in a Member State applies to family members of Turkish workers under Article 13 of Decision No 1/80, or whether it applies only to family members of Turkish self-employed persons pursuant to Article 41(1) of the Additional Protocol?










3.


If the answer to Question 1, read in conjunction with Question 2, is in the affirmative, the Court is asked to indicate whether the standstill clause in Article 13(1) of Decision No 1/80 must be interpreted as meaning that new restrictions, which are ‘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’ (beyond what is stated in Article 14 of Decision No 1/80) are lawful?










4.


If the answer to Question 3 is in the affirmative, the Court is asked to indicate:






(a)


What guidelines should be used to carry out the restriction test and proportionality assessment. The Court is asked inter alia to indicate whether the same principles must be followed as those laid down in its case-law on family reunification in connection with the free movement of EU citizens, which are based on the Free Movement Directive (Directive 2004/38) and the provisions of the Treaty, or whether another assessment must be applied?










(b)


If an assessment other than that which stems from the Court’s case-law on family reunification in connection with the freedom of movement of EU citizens must be applied, the Court is asked to indicate whether the proportionality assessment carried out in relation to Article 8 of the European Convention of Human Rights on respect for family life and the case-law of the European Court of Human Rights should be adopted as the point of reference and, if not, what principles must be followed?










(c)


Irrespective of which assessment method is to be applied:
Can a rule such as Paragraph 9(13) of the Danish Udlændingeloven (Law on aliens) — under which it is a condition for family reunification between a person who is a third-country national and has a residence permit and is resident in Denmark, and his minor child, where the child and the child’s other parent is resident in the country of origin or another country, that the child has, or has the possibility of establishing, such ties with Denmark that there is a basis for successful integration in Denmark — be regarded as ‘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’?










(1)  Council Regulation (EEC) No 2760/72 of 19 December 1972 concluding the additional protocol and the financial protocol signed on 23 November 1970 and annexed to the Agreement establishing an Association between the European Economic Community and Turkey and relating to the measures to be taken for their implementation
(OJ 1972 L 293, p. 1).

(2)  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 (EEC) 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 (Text with EEA relevance)
(OJ 2004 L 158, p. 77).