Nefiye Yön v Landeshauptstadt Stuttgart.
Date: 2018-08-07
38


As is apparent from the case-law of the Court, both Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80 lay down an unequivocal standstill clause as regards the introduction of new restrictions on the access to employment of workers legally resident and employed in the territory of the contracting States (judgment of 20 September 1990, Sevince, C‑192/89, EU:C:1990:322, paragraph 18).
39


The ‘standstill’ clauses contained in Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80 thus generally prohibit 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 those decisions entered into force with regard to the Member State concerned (see, to that effect, judgment of 29 March 2017, Tekdemir, C‑652/15, EU:C:2017:239, paragraph 25 and the case-law cited).
42


To that end, that agreement establishes, between the Community and the Republic of Turkey, an association which comprises a preparatory stage to enable the Republic of Turkey to strengthen its economy with aid from the Community, a transitional stage for the progressive establishment of a customs union and for the alignment of economic policies, and a final stage based on the customs union and entailing closer coordination of economic policies (judgment of 30 September 1987, Demirel, 12/86, EU:C:1987:400, paragraph 15).
43


As regards, in particular, the free movement of workers, Article 12 of the Association Agreement, in Title II thereof, relating to the implementation of the transitional stage of the association, provides that the Contracting Parties agree to be guided by Articles 39, 40 and 41 EC for the purpose of progressively securing freedom of movement for workers between them. The Additional Protocol lays down, in Article 36 thereof, the timetable for the progressive attainment of such freedom of movement and stipulates that the Association Council is to determine the detailed rules required to that end (judgment of 10 February 2000, Nazli, C‑340/97, EU:C:2000:77, paragraphs 50 and 51).
44


On the basis of Article 12 of the Association Agreement and Article 36 of the Additional Protocol, the Association Council, set up by that Agreement to ensure the implementation and the progressive development of the Association, first adopted, on 20 December 1976, Decision No 2/76 which is presented in Article 1 thereof as constituting a first stage in securing freedom of movement for workers between the Community and Turkey, which was to last for four years from 1 December 1976 (judgment of 10 February 2000, Nazli, C‑340/97, EU:C:2000:77, paragraph 52). As is apparent from Article 13 thereof, that decision entered into force on 20 December 1976.
46


It is in those circumstances that, on 19 September 1980, the Association Council adopted Decision No 1/80 which is intended, according to the third recital, to improve, in the social field, the treatment accorded to workers and members of their families in relation to the arrangements introduced by Decision No 2/76 (judgment of 23 January 1997, Tetik, C‑171/95, EU:C:1997:31, paragraph 19).
47


The provisions of Section 1, entitled ‘Questions relating to employment and the free movement of workers’, of Chapter II, entitled ‘Social provisions’, of Decision No 1/80, of which Article 13 forms part, thus constitute a further stage in securing freedom of movement for workers (see, to that effect, judgment of 23 January 1997, Tetik, C‑171/95, EU:C:1997:31, paragraph 20 and the case-law cited), and are applicable, pursuant to Article 16 of that decision, since 1 December 1980.
48


It follows from the foregoing that Article 7 of Decision No 2/76 applies ratione temporis to the national measures introduced during the period between 20 December 1976, the date of entry into force of that decision, to 30 November 1980, the date of expiry of the first stage in securing freedom of movement for workers between the Community and Turkey. Article 13 of Decision No 1/80 applies ratione temporis to the national measures introduced after 1 December 1980, which is the date marking the entry into force of that decision and the start of the second stage in securing freedom of movement for workers between the Community and Turkey.
60


In that context, it is necessary to bear in mind that, first of all, in interpreting the standstill clause set out in Article 41(1) of the Additional Protocol, the Court has 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 of 10 July 2014, Dogan, C‑138/13, EU:C:2014:2066, paragraph 36).
61


The Court stated that this was the case since the decision of a Turkish national to establish himself in a Member State in order to exercise a stable economic activity there could be negatively affected where the legislation of that State makes family reunification difficult or impossible, as a result of which 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 of 10 July 2014, Dogan, C‑138/13, EU:C:2014:2066, paragraph 35).
62


Secondly, when interpreting Article 13 of Decision No 1/80, the Court noted that the interpretation of Article 41(1) of the Additional Protocol, set out in paragraph 60 of the present judgment, should be the same as that relating to Article 13 of Decision No 1/80 (see, to that effect, judgment of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraph 42).
63


As already noted by the Court, 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 of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraph 41).
64


The Court has thus held that national legislation tightening the conditions for family reunification of Turkish workers lawfully residing in the Member State in question, in relation to the conditions applicable at the time of the entry into force in that Member State of Decision No 1/80, constitutes a new restriction, within the meaning of Article 13 of that decision, on the exercise by such Turkish workers of the freedom of movement for workers in that Member State (judgment of 29 March 2017, Tekdemir, C‑561/15, EU:C:2017:239, paragraph 31 and the case-law cited).
65


It should be noted, however, that, as the Court has already noted, the standstill clause set out in Article 7 of Decision No 2/76 is of the same kind as those set out in Article 13 of Decision No 1/80 and Article 41(1) of the Additional Protocol (see, to that effect, judgment of 11 May 2000, Savas, C‑37/98, EU:C:2000:224, paragraphs 49 and 50 and the case-law cited).
66


Moreover, in the light of the nature, context and purpose of both the Additional Protocol and Decisions Nos 2/76 and 1/80, of which Article 41(1) and Articles 7 and 13 respectively form part, and the Association Agreement to which those provisions relate, as set out in paragraphs 41 to 47 of the present judgment, the standstill clause in Article 7 of Decision No 2/76 must be regarded as having the same purpose, with respect to the free movement of workers, as that pursued by the standstill clauses in Article 41(1) of the Additional Protocol and Article 13 of Decision No 1/80, namely, as is apparent from the case-law of the Court, in particular the judgment of 21 October 2003, Abatay and Others (C‑317/01 and C‑369/01, EU:C:2003:572, paragraph 72), to create favourable conditions for the progressive putting in place, respectively, of the freedom of establishment and the freedom to provide services, as well as the free movement of workers, by prohibiting national authorities from introducing new obstacles to those freedoms in order not to make their gradual realisation between the Member States and the Republic of Turkey more difficult.
68


In that regard, it is sufficient to note that, as the Court has already held, 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 nationals lawfully residing in the Member State concerned, such as Ms Yön’s spouse, of paid employment in the territory of that State, that it must be held that such legislation is covered by the standstill clause in Article 13 of Decision No 1/80 (see, to that effect, judgment of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraph 44).
72


In the context of the interpretation of Article 13 of Decision No 1/80, the Court has already held that a restriction whose object 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 on 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 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 of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraph 51 and the case-law cited).
74


Under Article 12 of the Association Agreement, the parties thereto have, in accordance with the exclusively economic aim which forms the basis of the association between the Community and the Republic of Turkey, 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 (judgment of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraph 52 and the case-law cited).
77


On the other hand, it follows from the case-law of the Court that the objective of effective management of migratory flows may constitute an overriding reason in the public interest capable of justifying a further restriction, within the meaning of Article 7 of Decision No 2/76 (see, by analogy, judgment of 29 March 2017, Tekdemir, C‑652/15, EU:C:2017:239, paragraph 39).
81


However, the principle of proportionality also requires that the procedure for implementing such a requirement does not exceed what is necessary for achieving the objective pursued (judgment of 29 March 2017, Tekdemir, C‑652/15, EU:C:2017:239, paragraph 43).