Caner Genc v Integrationsministeriet.
Date: 2016-04-12
33


It is settled case-law that the standstill clauses set out in Article 13 of Decision No 1/80 and Article 41(1) of the Additional Protocol prohibit generally the introduction of new internal measures which are intended to or have the effect of making the exercise by a Turkish citizen of an economic freedom subject, on the territory of the Member State concerned, to conditions more stringent than those which were applicable at the date of entry into force of that decision or that protocol as regards that Member State (see, to that effect, judgments in Savas, C‑37/98, EU:C:2000:224, paragraph 69, and Sahin, C‑242/06, EU:C:2009:554, paragraph 63 and the case-law cited).
36


In those circumstances, it is the father of the applicant in the main proceedings whose situation relates to an economic freedom, in this case the freedom of movement for workers, and who, as a worker legally integrated in the labour market in Denmark, is therefore covered by Article 13 of Decision No 1/80 (see, to that effect, judgments in Savas, C‑37/98, EU:C:2000:224, paragraph 58, and Abatay and Others, C‑317/01 and C‑369/01, EU:C:2003:572, paragraphs 75 to 84).
37


Consequently, it is only the situation of the Turkish worker residing in the Member State concerned, in this case Mr Genc’s father, to which it is appropriate to refer in order to determine whether, under the standstill clause referred to in Article 13 of Decision No 1/80, a national measure such as that at issue in the main proceedings must be disapplied, if it proves to be the case that it is likely to affect his freedom to carry out paid employment in that Member State.
39


In that regard, it is necessary to bear in mind that the Court has previously held that 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 the Additional Protocol entered into force, constitutes a ‘new restriction’, within the meaning of Article 41(1) of the Additional Protocol, on the exercise of the freedom of establishment by those Turkish nationals (judgment in Dogan, C‑138/13, EU:C:2014:2066, paragraph 36).
40


That is the case since the decision of a Turkish national to establish himself in a Member State in order there to exercise 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 obliged to choose between his activity in the Member State concerned and his family life in Turkey (see, to that effect, judgment in Dogan, C‑138/13, EU:C:2014:2066, paragraph 35).
41


Furthermore, the Court has ruled that, as the standstill clause in Article 13 of Decision No 1/80 is of the same kind as that contained in Article 41(1) of the Additional Protocol, and as the objective pursued by those two clauses is identical, the interpretation of Article 41(1) must be equally valid as regards the standstill obligation which is the basis of Article 13 in relation to freedom of movement for workers (judgment in Commission v Netherlands, C‑92/07, EU:C:2010:228, paragraph 48).
42


It follows that the interpretation which the Court gave in paragraph 36 of the judgment in Dogan (C‑138/13, EU:C:2014:2066) may be transposed to the main proceedings.
44


Thus, it is only in so far as national legislation tightening the conditions for family reunification, such as that at issue in the main proceedings, is likely to affect the exercise by Turkish workers, such as Mr Genc’s father, of an economic activity on the territory of the Member State concerned that the view must be taken that such legislation is covered by the standstill clause in Article 13 of Decision No 1/80, as the Advocate General noted in point 27 of his Opinion.
48


In fact, that judgment concerned a Turkish national who wished to avail herself of the standstill clause set out in Article 41(1) of the Additional Protocol, on her entry into the Member State concerned, since, once present on the territory of that Member State, she was the beneficiary of services. Since, however, the Court held that the notion of ‘freedom of provision of services’ referred to in that provision did not include the passive freedom of provision of services (see, to that effect, judgment in Demirkan, C‑221/11, EU:C:2013:583, paragraphs 60 and 63), there was no link between the entry and residence of that national in the Member State concerned and the exercise of an economic freedom and accordingly prevented her from relying on that standstill clause.
49


The interpretation based on the judgment in Dogan is, furthermore, coherent with that given by the Court with regard to the first paragraph of Article 7 of Decision No 1/80, in accordance with which the objective of that provision of the decision is to create conditions conducive to family unity in the host Member State by facilitating the employment and residence of Turkish workers duly registered as belonging to the labour force of the Member State concerned (see judgments in Kadiman, C‑351/95, EU:C:1997:205, paragraphs 34 to 36; Eyüp, C‑65/98, EU:C:2000:336, paragraph 26, and Ayaz, C‑275/02, EU:C:2004:570, paragraph 41).
50


Consequently, it must be concluded that national legislation, such as that at issue in the main proceedings, 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 that 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.
51


Finally, it must be borne in mind that a restriction whose purpose or effect is to make the exercise by a Turkish national of the freedom of movement of workers in national territory subject to conditions more stringent than those applicable at the date of entry into force of Decision No 1/80, 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 (judgment in Demir, C‑225/12, EU:C:2013:725, paragraph 40).
52


Under Article 12 of the Association Agreement, the parties thereto have, in accordance with the exclusively economic aim which forms the basis of the EEC-Turkey Association, agreed to be guided by the provisions of primary EU law on the freedom of movement for workers, so that the principles accepted in the context of those provisions must be extended, so far as possible, to Turkish nationals who enjoy rights under that Association Agreement (see, to that effect, judgment in Ziebell, C‑371/08, EU:C:2011:809, paragraphs 58 and 65 to 68).
55


As regards whether the objective of achieving successful integration may constitute such an overriding reason, it is necessary to recall the importance given, in the context of EU law, to integrating measures, as is clear from Article 79(4) TFEU, which refers to promoting the integration of third-country nationals in the host Member States as an action by the Member States to be encouraged and supported, and from a number of directives, such as Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12) and Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44), which provide that the integration of third-country nationals is a key factor in promoting social and economic cohesion, a fundamental objective of the European Union set out in the Treaty.
56


In those circumstances, the objective of ensuring the successful integration of third-country nationals in the Member State concerned, referred to by the Danish Government, may constitute an overriding reason in the public interest, as the Advocate General noted in point 35 of his Opinion.