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11 juli 2014

The requirement of a basic knowledge of the German language imposed by Germany as a condition for the issue of a visa for the purpose of reunification of spouses of Turkish nationals residing lawfully in its territory is contrary to EU law


 Consideration of the questions referred
 The first question
25      By its first question, the referring court asks, in essence, whether Article 41(1) of the Additional Protocol must be interpreted as meaning that the ‘standstill’ clause set out in that provision precludes a measure of national law, introduced after the entry into force of that additional protocol in the Member State concerned, which imposes on spouses of Turkish nationals residing in that Member State, who wish to enter the territory of that State for the purposes of family reunification, the condition that they demonstrate beforehand that they have acquired basic knowledge of the official language of that Member State.
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).
29      In the present case, it is not disputed that the national provision at issue in the main proceedings was introduced after 1 January 1973, the date on which the Additional Protocol entered into force in the Member State concerned, and that that national provision has brought about a tightening of the conditions of admission concerning family reunification which existed previously, for spouses of foreigners residing in that Member State, so that it makes such reunification more difficult.
30      Furthermore, it is apparent from the order for reference that Mrs Dogan wishes to enter the territory of the Member State concerned not for the purpose of exercising there the freedom to provide services or the freedom of establishment, but to join her spouse who is residing there, so as to lead a family life with him.
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.
32      Accordingly, in the main proceedings, the question whether the national provision at issue complies with the ‘standstill’ clause set out in Article 41(1) of the Additional Protocol must be analysed in the light of the exercise of the freedom of establishment by Mr Dogan.
33      It is therefore necessary to determine whether, in the context of family reunification, the introduction of new legislation tightening the conditions of the first admission of spouses of Turkish nationals residing in a Member State in relation to those conditions applicable when the Additional Protocol entered into force in the Member State concerned, can constitute a ‘new restriction’ on the freedom of establishment of those Turkish nationals, within the meaning of Article 41(1) of the Additional Protocol.
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).
38      In that regard, on the assumption that the grounds set out by the German Government, namely the prevention of forced marriages and the promotion of integration, can constitute overriding reasons in the public interest, it remains the case that a national provision such as that at issue in the main proceedings goes beyond what is necessary in order to attain the objective pursued, in so far as the absence of evidence of sufficient linguistic knowledge automatically leads to the dismissal of the application for family reunification, without account being taken of the specific circumstances of each case.
39      In view of the foregoing considerations, the answer to the first question is that Article 41(1) of the Additional Protocol must be interpreted as meaning that the ‘standstill’ clause set out in that provision precludes a measure of national law, introduced after the entry into force of that additional protocol in the Member State concerned, which imposes on spouses of Turkish nationals residing in that Member State, who wish to enter the territory of that State for the purposes of family reunification, the condition that they demonstrate beforehand that they have acquired basic knowledge of the official language of that Member State.
 The second question
40      In the light of the answer given to the first question, there is no need to answer the second question.
 Costs
41      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
Article 41(1) of the Additional Protocol, signed in Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 concluding the additional protocol and the financial protocol signed on 23 November 1970 and annexed to the Agreement establishing an Association between the European Economic Community and Turkey and relating to the measures to be taken for their implementation must be interpreted as meaning that the ‘standstill’ clause set out in that provision precludes a measure of national law, introduced after the entry into force of that additional protocol in the Member State concerned, which imposes on spouses of Turkish nationals residing in that Member State, who wish to enter the territory of that State for the purposes of family reunification, the condition that they demonstrate beforehand that they have acquired basic knowledge of the official language of that Member State.


Bron: http://curia.europa.eu/juris/document/document.jsf?text=&docid=154828&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=452021

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