Naime Dogan v Bundesrepublik Deutschland.
Date: 2014-07-10
26. First of all, it should be noted that it is settled case-law that the ‘standstill’ clause set out in Article 41(1) of the Additional Protocol prohibits generally the introduction of any new measures having the object or effect of making the exercise by a Turkish national of the freedom of establishment or the freedom to provide services on the territory of that Member State subject to stricter conditions than those which applied to him at the time when the Additional Protocol entered into force with regard to the Member State concerned (judgment in Dereci and Others , C‑256/11, EU:C:2011:734, paragraph 88 and case-law cited).
27. It has also been acknowledged that that provision 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 (judgment in Oguz , C‑186/10, EU:C:2011:509, paragraph 22 and case-law cited).
28. Finally, according to the Court’s case-law, irrespective of whether freedom of establishment or freedom to provide services is invoked, it is only where the activity in question is the corollary of the exercise of an economic activity that the ‘standstill’ clause may relate to the conditions of entry and residence of Turkish nationals within the territory of the Member States (judgment in Demirkan , C‑221/11, EU:C:2013:583, paragraph 55).
31. Finally, it is also apparent from the order for reference that Mr Dogan is a Turkish national, who has resided in the Member State at issue since 1998 and who, as managing director of a limited liability company of which he is the majority shareholder, receives income from a self-employed activity (see, to that effect, judgment in Asscher , C‑107/94, EU:C:1996:251, paragraph 26). Consequently, Mr Dogan’s situation is within the scope of the principle of the freedom of establishment.
34. In that regard, it must be noted that the Court has held that 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 (see judgment in Dülger , C‑451/11, EU:C:2012:504, paragraph 42).
35. The decision of a Turkish national to establish himself 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 obliged to choose between his activity in the Member State concerned and his family life in Turkey.
36. It must therefore be held that legislation such as that at issue in the main proceedings, 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.
37. Finally, it must be noted that a restriction, whose purpose or effect is to make the exercise by a Turkish national of the freedom of establishment in national territory subject to conditions more restrictive than those applicable at the date of entry into force of the Additional Protocol, is prohibited, unless 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 (see, by analogy, judgment in Demir , C‑225/12, EU:C:2013:725, paragraph 40).