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
In verband met geldwolven die denken geld te kunnen claimen op krantenartikelen die op een blog als deze worden geplaatst maar na meestal een dag voor de krantenlezers aan leeswaardigheid hebben ingeboet terwijl wij vreemdelingenrecht specialisten ze soms wel nog jaren gebruiken om er een kopie van te maken voor een zaak ga ik over tot het plaatsen van alleen het eerste stukje. Ja ik weet het: de kans dat u doorklikt is geringer dan wanneer het hele artikel hier staat en een kopie van het orgineel maken handig kan zijn voor uw zaak. Wilt u zelf wat overnemen van dit weblog. Dat mag. Zet er alleen even een link bij naar het desbetreffende artikel zodat mensen niet alleen dat wat u knipt en plakt kunnen lezen maar dat ook kunnen doen in de context.
Geen opmerkingen:
Een reactie posten