Minister voor Vreemdelingenzaken en Integratie v T. Sahin.
Date: 2009-09-17
50. In that regard, it must, first, be recalled that, in paragraphs 75 to 84 of Abatay and Others , the Court held that Article 13 of Decision No 1/80 is not subject to the condition that the Turkish national concerned satisfy the requirements of Article 6(1) of that decision and that the scope of that Article 13 is not restricted to Turkish migrants who are in paid employment.
51. Those two provisions of Decision No 1/80 are aimed at different situations, since 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, while including within its scope family members whose admission into the territory of a Member State does not depend on actual employment. The Court concluded, in Abatay and Others , that Article 13 is not intended to protect Turkish nationals already integrated into a Member State’s labour force, but is intended to apply precisely to Turkish nationals who do not yet qualify for the rights in relation to employment and, accordingly, residence under Article 6(1) of Decision No 1/80.
53. Second, as regards the meaning of ‘legally’ in Article 13 of Decision No 1/80, according to the case-law, this means that the Turkish worker or member of his family must have complied with the rules of the host Member State as to entry, residence and, where appropriate, employment, with the result that he is lawfully present in the territory of that State (see, inter alia, Abatay and Others , paragraph 84 and case-law there cited). Accordingly Article 13 is of no assistance to a Turkish national whose position is not lawful ( Abatay and Others , paragraph 85).
62. In that regard, it must first be observed that it is clear from settled case‑law of the Court that Article 13 of Decision No 1/80 may be validly relied on before the courts and tribunals of Member States by the Turkish nationals to whom it applies to prevent the application of rules of national law that conflict with it (see Case C‑192/89 Sevince  [1990] ECR I‑3461, paragraph 26, and Abatay and Others , paragraphs 58 and 59 and the first indent of paragraph 117).
63. It is also settled case-law that the standstill clause enacted in Article 13 prohibits generally the introduction of any new measure having the object or effect of making the exercise by a Turkish national in its territory of the freedom of movement for workers subject to more restrictive conditions than those which applied at the time when Decision No 1/80 entered into force with regard to the Member State concerned (see Abatay and Others , paragraph 66, and the second indent of paragraph 117, and by analogy, as regards the standstill clause in relation to freedom of establishment and freedom to provide services in Article 41(1) of the Additional Protocol, Case C‑228/06 Soysal and Savatli  [2009] ECR I‑0000, paragraph 47).
64. The Court has therefore more specifically held that Article 41(1) of the Additional Protocol prohibits the introduction, as from the date of entry into force of the legal act of which that provision forms part in the host Member State, of any new restrictions on the exercise of freedom of establishment or freedom to provide services, including those relating to the substantive and/or procedural conditions governing the first admission to the territory of that Member State of Turkish nationals intending to make use of those economic freedoms (see Case C‑16/05 Tum and Dari  [2007] ECR I‑7415, paragraph 69, and Soysal and Savatli , paragraphs 47 and 49).
65. Since the Court has already ruled that 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 that the objective pursued by those two clauses is identical (see Case C‑37/98 Savas  [2000] ECR I‑2927, paragraph 50, and Abatay and Others , paragraphs 70 to 74), the interpretation set out in the preceding paragraph must be equally valid as regards the standstill obligation which is the basis of Article 13 in relation to freedom of movement for workers.
67. The Court has however also ruled in this connection that the adoption of new rules which apply in the same way both to Turkish nationals and to Community nationals is not inconsistent with any of the standstill clauses laid down in the fields covered by the EEC-Turkey Association (see, by analogy, as regards Article 41(1) of the Additional Protocol, Soysal and Savatli , paragraph 61). The Court added, in the same paragraph of that judgment, that, if such rules applied to nationals of Member States but not to Turkish nationals, Turkish nationals would be put in a more favourable position than Community nationals, which would be clearly contrary to the requirement of Article 59 of the Additional Protocol, according to which the Republic of Turkey may not receive more favourable treatment than that which Member States grant to one another pursuant to the EC Treaty.
71. Nevertheless, such legislation must not amount to creating a restriction within the meaning of Article 13 of Decision No 1/80. Read in conjunction with Article 59 of the Additional Protocol, Article 13 implies that although a Turkish national to whom those provisions apply must certainly not be placed in a position more advantageous than that of Community nationals, he cannot on the other hand be subjected to new obligations which are disproportionate as compared with those established for Community nationals.
72. It is clear from the order for reference that, at the material time in the case in the main proceedings, Turkish nationals were required, under the Netherlands legislation, to pay a sum amounting to EUR 169 for the processing of an application for a residence permit or extension thereof, whereas the amount which Community nationals could be charged in the Netherlands for the processing of a similar application was only EUR 30. Moreover, it is common ground that the period of validity of the documents in question is in some cases shorter when they are issued to Turkish nationals, with the result that Turkish nationals are obliged to apply for the renewal of such documents more often than Community nationals and that, consequently, the financial impact on the former is significant, the more so since, if the application is rejected, the sum paid is not refunded.
73. In that regard, in neither its written observations lodged with the Court nor in response to questions put to it at the hearing has the Netherlands Government advanced any relevant argument capable of justifying such a significant difference between the amounts of the administrative charges imposed on Turkish nationals and those provided for in relation to Community nationals. It must be added in that context that the Court cannot accept the argument of the Netherlands Government that the enquiries and checks required before a residence document can be issued to a Turkish national are more complex and more costly than those needed in respect of a Community national, given that, under the Netherlands legislation concerned, payment of the administrative charge must be made before the application for a residence permit or extension thereof is even considered, and that, furthermore, there is nothing to prevent a Member State from requiring the applicant himself to submit to the competent authorities a dossier containing all the supporting documents required for such an application.
74. It must therefore be concluded that national legislation such as that at issue in the main proceedings constitutes a restriction prohibited by Article 13 of Decision No 1/80 to the extent that, before an application for the grant of a residence permit or extension thereof can be considered, the legislation requires payment, by Turkish nationals to whom Article 13 applies, of administrative charges of an amount which is disproportionate as compared with that demanded in similar circumstances from Community nationals.