Staatssecretaris van Justitie v F. Toprak (C-300/09) and I. Oguz (C-301/09).
Date: 2010-12-09
43. The Court has already ruled on changes to the conditions for the grant of a residence permit to Turkish nationals in the light of the standstill rules in Article 41(1) of the Additional Protocol and Article 13 of Decision No 1/80. It has held that the introduction of an obligation which did not exist when the Additional Protocol entered into force, namely the obligation to be in possession of a visa in order to provide certain services in Germany, constitutes a ‘new restriction’ within the meaning of Article 41(1) of the Additional Protocol (Case C‑228/06 Soysal and Savatli  [2009] ECR I‑1031, paragraph 57). The Court has also held that the introduction of administrative charges, for the grant of a residence permit, in an amount which is disproportionate in comparison with those applied to nationals of the Member States constitutes a restriction prohibited by Article 13 of Decision No 1/80 (Case C-242/06 Sahin  [2009] ECR I‑8465, paragraph 74).
45. The fact that the workers concerned are not already integrated into the labour force of the Netherlands, in the sense that they do not meet the conditions laid down in Article 6(1) of Decision No 1/80, does not in any way constitute an obstacle to the application of Article 13 thereof. The Court has previously held that the standstill rule in Article 13 of Decision No 1/80 is not intended to protect Turkish nationals who are 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 that decision (see Joined Cases C-317/01 and C-369/01 Abatay and Others  [2003] ECR I-12301, paragraph 83, and Case C-92/07 Commission  v Netherlands  [2010] ECR I-0000, paragraph 45).
49. It should be observed that, since the wording of Article 13 of Decision No 1/80 does not stipulate any particular date from which the standstill rule is to apply, the existence of ‘new restrictions’, within the meaning of that article, may be assessed in relation to the date of entry into force of the text in which it appears, this being, in the present cases, the date on which Decision No 1/80 entered into force. Furthermore, the Court has referred to that starting point on several occasions. Thus, in paragraph 49 of the judgment in Case C‑92/07 Commission  v Netherlands , the Court held that Article 13 of Decision No 1/80 precludes the introduction into Netherlands law, as from the date on which that decision entered into force in the Netherlands, of any new restrictions on the exercise of the free movement of workers (see also, inter alia, Abatay and Others , paragraph 74, and Sahin , paragraph 63; see, by way of analogy, as regards the standstill rule laid down in Article 41(1) of the Additional Protocol, Abatay and Others , paragraph 66, and Soysal and Savatli , paragraph 47).
52. In paragraph 72 of its judgment in Abatay and Others , the Court held that the standstill rules in Article 13 of Decision No 1/80 and in Article 41(1) of the Additional Protocol pursue the same objective, which is to create conditions conducive to the gradual establishment of freedom of movement for workers, of the right of establishment and of freedom to provide services by prohibiting national authorities from creating new obstacles to those freedoms so as not to make the gradual achievement of those freedoms more difficult between the Member States and the Republic of Turkey.
53. In its judgment in Case C-16/05 Tum and Dari  [2007] ECR I-7415, at paragraph 61, the Court added, with respect to Article 41(1) of the Additional Protocol, that that provision is intended to create conditions conducive to the progressive establishment of freedom of establishment by way of an absolute prohibition on national authorities from creating any new obstacle to the exercise of that freedom by making more stringent the conditions which exist at a given time.
54. Having regard to the convergence in the interpretation of both Article 41 of the Additional Protocol and Article 13 of Decision No 1/80 as regards the objective pursued, it must be held that the scope of the standstill obligation in Article 13 extends by analogy to any new obstacle to the exercise of free movement by workers which makes more stringent the conditions which exist at a given time.
55. It is thus necessary to ensure that the Member States do not depart from the objective pursued by reversing measures which they have adopted in favour of the free movement of Turkish workers subsequent to the entry into force of Decision No 1/80 within their territory.
58. With regard to value added tax, the Court has held that national rules infringe the standstill rule in Article 17(6) of the Sixth Directive if their effect is to increase, after the entry into force of that directive, the extent of existing exclusions, thus diverging from the objective of that directive. The Court stated that the same is true of any amendment subsequent to the entry into force of that directive which increases the extent of exclusions applicable immediately prior to that amendment. It is of little importance, in this regard, that the amendment does not extend the scope of the exclusions which applied when the directive came into force (see Case C-40/00 Commission v France  [2001] ECR I-4539, paragraphs 17 to 19).
59. The Court has ruled along the same lines with regard to the exception laid down in Article 57(1) EC concerning free movement of capital, which allows measures on the movement of capital to or from non-member countries which existed in national law on 31 December 1993 to be maintained in force. It held that the notion of a restriction existing on the date indicated in that article, namely 31 December 1993, presupposed that the legal provision relating to the restriction in question formed part of the legal order of the Member State concerned continuously since that date. It added that, if that were not the case, a Member State could, at any time, reintroduce restrictions on the movement of capital to or from non-member countries which existed as part of the national legal order on 31 December 1993 but had not been maintained. The Court accordingly concluded that the exception did not cover a provision which reintroduced an obstacle which, following the repeal of earlier legislation, no longer existed (Case C‑101/05 A  [2007] ECR I‑11531, paragraphs 48 and 49).
62. In the light of the foregoing considerations, the answer to the question referred is that, in circumstances such as those of the cases in the main proceedings, concerning a national provision on the acquisition of a residence permit by Turkish workers, Article 13 of Decision No 1/80 must be interpreted as meaning that a tightening of a provision introduced after 1 December 1980, which provided for a relaxation of the provision applicable on 1 December 1980, constitutes a ‘new restriction’ within the meaning of that article, even where that tightening does not make the conditions governing the acquisition of that permit more stringent than those which resulted from the provision in force on 1 December 1980, this being a matter for the national court to determine.
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