Yon (EEC-Turkey Association Agreement - Opinion) [2018] EUECJ C-123/17

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(Request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court, Germany))

(Reference for a preliminary ruling — EEC-Turkey Association Agreement — Decision No 2/76 — Article 7 — Standstill clause — New restrictions on the conditions of access to employment — Family reunification — Additional Protocol — Article 59 — Justification — Overriding reasons in the public interest)

1. Are more restrictive immigration requirements for Turkish nationals, introduced by Germany in October 1980, that impede family reunification between a Turkish worker long resident in that Member State and his Turkish spouse precluded by the bilateral arrangements between the European Union and Turkey? This reference for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court, Germany) enquires as to the temporal and material scope of the standstill clause in Article 7 of Decision No 2/76 (2) implementing Article 12 of the EEC-Turkey Association Agreement (‘the Association Agreement’) (3) relating to freedom of movement for workers. It gives the Court the opportunity to clarify the temporal scope of two successive decisions of the EEC-Turkey Association Council (4) — Decision No 2/76 and Decision No 1/80 (5) — and to explain further how those decisions should be interpreted.

2. The Association Agreement was entered into in 1963. According to Article 2(1), the aim of the Association is to promote the continuous and balanced strengthening of trade and economic relations between the Contracting Parties. The Association was to comprise a preparatory stage, a transitional stage and a final stage. (6) During the preparatory stage, Turkey was to strengthen its economy so as to enable it to fulfil the obligations which would devolve upon it during the two subsequent stages. (7) The aim of the transitional stage was progressively to establish a customs union between the parties and to align their economic policies. (8) The final stage, based on a customs union, was to entail closer coordination of the economic policies of Turkey and the European Union. (9)

3. Article 9 provides that within the scope of the agreement and without prejudice to any special provisions pursuant to Article 8, any discrimination on grounds of nationality is to be prohibited in accordance with the principle laid down in what is now Article 18 TFEU.

4. Chapter 3 is entitled ‘Other economic provisions’. Within that Chapter, Article 12 provides that ‘the Contracting Parties agree to be guided by [Articles 45, 46 and 47 TFEU] for the purpose of progressively securing freedom of movement for workers between them’.

5. In 1970 the EEC and Turkey signed the Additional Protocol to the Association Agreement, marking the passage from the preparatory stage to the transitional stage. (10)

6. Article 36 provides that freedom of movement for workers between the Member States and Turkey is to be secured by progressive stages in accordance with the principles set out in Article 12 of the Association Agreement. It empowers the Association Council set up under that agreement to decide on the detailed rules necessary to that end.

7. Article 41(1) introduced a standstill clause that prohibits the Contracting Parties to the Association Agreement from introducing between themselves ‘any new restrictions on the freedom of establishment and the freedom to provide services’.

8. Article 59 provides that ‘in the fields covered by this Protocol Turkey shall not receive more favourable treatment than that which Member States grant to one another pursuant to the Treaty establishing the Community’.

9. By virtue of Article 62, the Additional Protocol and its Annexes form an integral part of the Association Agreement.

10. Decision No 2/76 of the Association Council laid down a number of measures intended to promote freedom of movement for workers. Specifically, it established ‘the detailed rules for the implementation of Article 36 of the Additional Protocol’ for a first stage that ‘shall last four years, as from December 1976’. (11) Its provisions were however to continue to apply until the beginning of the subsequent stage. (12)

‘The Member States of the Community and Turkey may not introduce new restrictions on the conditions of access to employment applicable to workers legally resident and employed in their territory’.

12. Article 9 permits derogations from the provisions of the decision on grounds of public order, public security or public health.

14. Decision No 1/80 was likewise adopted by the Association Council to promote freedom of movement for workers. The third recital states that, in the social field, it is ‘necessary to improve the treatment accorded [to] workers and members of their families in relation to the arrangements introduced by Decision No 2/76’.

‘The Member States of the Community and Turkey may not introduce new restrictions on the conditions of access to employment applicable to workers and members of their families legally resident and employed in their respective territories.’

16. Article 14(1) makes it possible to derogate from the provisions of the decision on grounds of public order, public security or public health.

17. Article 16 envisaged that the Association Council would examine the results of applying those provisions ‘with a view to preparing solutions which might apply as from 1 December 1983’. No such further measures were, however, adopted. (14)

18. The relevant provisions of Decision No 1/80 applied from 1 December 1980. (15)

19. On 1 July 1980, Paragraph 1 of the Elfte Verordnung zur Änderung der Verordnung zur Durchführung des Ausländergesetzes (Eleventh Regulation amending the Regulation implementing the Law on foreign nationals) introduced a general visa requirement for Turkish nationals with effect from 5 October 1980. Before that amendment, Turkish nationals were required to have a residence permit in the form of a visa only for the purposes of exercising a professional activity in Germany. (16)

20. In accordance with Paragraph 4 of the Aufenthaltsgesetz (Law on Residence), in the absence of any provisions to the contrary in EU law or a statutory instrument and except where a right of residence exists by virtue of the Association Agreement, third-country nationals must have a residence permit in order to enter into and reside in Germany.

21. Paragraph 5(2) of the Law on Residence provides that a fixed-term residence permit may be granted only where the third-country national has entered Germany with the necessary visa and has, in his application for that visa, already provided the information that is necessary for that residence permit to be issued. Those requirements may be waived if the substantive requirements for a residence permit are satisfied or if, having regard to the particular circumstances of the case, it would be unreasonable to restart the procedure for issuing a visa. Paragraph 6(3) provides that, for stays of longer duration, a national visa delivered before the third-country national enters Germany is required.

22. Paragraph 30 of the Law on Residence concerns the reunification of spouses. The spouse of a third-country national is to be granted a fixed-term residence permit if the person concerned is able to communicate in German at least to a basic level. (17) A fixed-term residence permit is granted notwithstanding that requirement if the spouse is unable to provide evidence of a basic knowledge of German by reason of a physical, mental or psychological illness; or where in the circumstances of the particular case it is not possible or reasonable to expect him to acquire a basic knowledge of German before entering Germany. (18)

23. Mrs Nefiye Yön is a Turkish national. Her husband, also a Turkish national, has resided in Germany since 1995. He lodged an initial application for asylum which was rejected. He then married a German citizen, whom he subsequently divorced. He married Mrs Yön in 2004. He has held a permanent residence permit since at least 2005 and has been employed in a bakery since 2009. The couple have three adult children living in Austria, Germany and Turkey.

24. Mrs Yön made a first application to the German embassy in Ankara for a visa to join her husband for the purposes of family reunification in 2007. She made two further applications in 2011. All three applications were rejected on the basis that she had insufficient knowledge of the German language. In March 2013, she entered the Netherlands with a Dutch Schengen visa to visit her sister who was living there. In April 2013 she travelled to Germany to join her husband. In May 2013 she applied in Germany for a temporary residence permit for the purpose of family reunification. She is said to have health problems and to be illiterate; as a result, she is said to be dependent on her husband for support.

25. The Landeshauptstadt Stuttgart (Federal State Capital Stuttgart) rejected Mrs Yön’s application in March 2014 on the grounds that she had not shown that she was able to communicate in German at a basic level and that she had entered Germany without the necessary national visa.

26. The Verwaltungsgericht (Administrative Court) upheld Mrs Yön’s challenge to that decision. It considered that the grounds on which her application had been dismissed were contrary to the standstill clauses of Decisions Nos 2/76 and 1/80.

27. The Landeshauptstadt Stuttgart appealed against that judgment to the Bundesverwaltungsgericht (Federal Administrative Court, Germany, ‘the referring court’).

28. The referring court considers that if the language requirement for issuing a fixed-term residence permit laid down by Paragraph 30(1) of the Law on Residence were to constitute a ‘new restriction’ in terms of the standstill clauses, it could nevertheless be justified on the basis of an overriding reason in the public interest. The Law on Residence was amended in order to comply with the principle of proportionality by introducing the possibility for an applicant to be exempted from the language requirement. However, the referring court explains that the present reference does not concern the language requirement, since that issue has not yet been addressed by the national courts, but rather the requirement (under Paragraph 5(2) of the Law on Residence) to enter the national territory with the necessary visa, which is a prerequisite for issuing a residence permit.

29. The referring court next observes that the visa requirement might be considered to be a ‘new restriction’ on the freedom of movement for Turkish workers. Against that background the referring court has asked this Court the following questions:

‘(1) Has the standstill clause laid down in Article 7 of Decision No 2/76 of the Association Council been completely superseded by the standstill clause laid down in Article 13 of Decision No 1/80 of the Association Council, or is the lawfulness of new restrictions on the free movement of workers, which were introduced between the entry into force of Decision No 2/76 and the time when Article 13 of Decision No 1/80 became applicable, to continue to be assessed pursuant to Article 7 of Decision No 2/76?

(2) If the answer to the first question is that Article 7 of Decision No 2/76 was not completely replaced: should the case-law of the Court of Justice of the European Union concerning Article 13 of Decision No 1/80 also be carried over in full to the application of Article 7 of Decision No 2/76, with the result that Article 7 of Decision No 2/76 also covers a national provision, introduced with effect from 5 October 1980, under which the ability of the spouse of a Turkish worker to join that worker for the purpose of family reunification is made dependent on a national visa being issued?

(3) Is the introduction of such a national provision justified on the basis of an overriding reason in the public interest, in particular the objective of effective immigration control and the management of migration flows, where the particular circumstances of the individual case are taken into account through the operation of a hardship clause?’

30. Very brief written observations were submitted by Mrs Yön. More detailed written observations were also submitted by the appellant in the main proceedings, the German Government and the European Commission. The appellant in the main proceedings, the German Government and the Commission made oral submissions at the hearing on 18 January 2018.

The purpose of the Association Agreement and the gradual implementation of the freedom of movement for workers

31. The purpose of the Association Agreement is to establish ever closer bonds with Turkey and promote the continuous and balanced strengthening of trade and economic relations between Turkey and the European Union. (19) Whilst Turkey’s accession to the European Union is a long-term aim, (20) the Association Agreement’s objective is essentially economic. (21) Those two aspects of the Association Agreement are not inconsistent with each other. The ‘definitive stage’ of the Association is expressly stated to be a customs union and the wording and the structure of the agreement reflect its economic nature. (22) But the agreement also expressly refers to the possibility of Turkey acceding to the European Union. (23) That future objective is intended to build on the economic achievements of the Association Agreement whilst requiring further action from the parties.

32. Chapter 3 of the Association Agreement (‘Other economic provisions’) opens with Article 12, identifying the principle of freedom of movement for workers. Article 36 of the Additional Protocol then lays down a 10 year schedule to secure freedom of movement for workers ‘in progressive stages’ and provides that the Association Council is to decide on ‘the rules necessary to that end’. The Association Council duly adopted Decision No 2/76 setting out the content of the first of those ‘progressive stages’. (24) Further ‘revitalisation and development of the Association’ took place in 1980, with the adoption of Decision No 1/80. (25) And there the legislative process stalled. Although Article 16 of Decision No 1/80 instructed the Association Council to ‘examine the results of application of the provisions [on free movement of workers] with a view to preparing solutions which might apply as from 1 December 1983’, no legislative instrument developing free movement of workers further has come into being. Consequently, as the Court has pointed out, some fundamental aspects of that ambition have not yet been realised and the progressive establishment of the freedom of movement for workers has not been completed. (26)

33. Unlike certain other agreements such as the EEA Agreement and the Agreement with Switzerland on Free Movement of Persons,(27) the Association Agreement does not provide for any general extension of the internal market provisions to Turkey. It does not create freedom of movement for workers between the European Union and Turkey. It merely provides for the progressive establishment of that freedom of movement. (28) Thus, the Court has repeatedly held that, unlike workers from the European Union, Turkish nationals are not currently entitled to freedom of movement within the European Union; the Association Agreement guarantees the enjoyment of certain rights only within the territory of the host Member State. (29)

The interpretation of the Association Agreement and the Association Council decisions

34. An international agreement concluded by the European Union is to be interpreted not only on the basis of its wording but also in the light of its objectives. (30) The Court has recalled that Article 31 of the Vienna Convention on the Law of Treaties (31) provides that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. (32) Identical wording of provisions contained in the EU Treaties and in international agreements does not entail automatic uniformity of interpretation (‘the Polydor principle’). (33)

35. The Polydor principle also applies in the context of the Association Agreement and its implementing instruments. Thus, whether it is possible to apply the interpretation of an EU provision to a comparably, similarly or even identically worded provision of an agreement concluded by the EU with a non-Member State depends on, inter alia, the aim pursued by each provision in its own particular context. In deciding whether a provision of EU law lends itself to application by analogy under the EEC-Turkey Association, a comparison must be made between the objective pursued by the Association Agreement and the context of which it forms a part, on the one hand, and those of the EU law instrument in question, on the other. (34) Furthermore, the existence of an accession objective does not mean that case-law interpreting provisions of the EU Treaties is automatically to be extended to an Agreement with a non-Member State. (35)

36. In Article 12 of the Association Agreement, the parties agreed to ‘be guided by’ the provisions of primary EU law on the freedom of movement for workers. As Advocate General Cruz Villalón has observed, the phrase ‘be guided by’ demonstrates that the economic freedom identified by EU primary law is intended to serve as a model. However, the wording chosen makes it equally clear that the economic freedom identified by EU primary law is not to be extended in its entirety to the association relationship. The expression ‘be guided by’ does not imply uniformity — instead, it permits, in principle, different interpretations. (36)

37. Since the judgment in Bozkurt, it has been settled case-law that the principles accepted in the context of provisions of primary EU law on the freedom of movement for workers must be extended, so far as possible, to Turkish nationals who enjoy rights under the Association Agreement. (37) However, the Contracting Parties are not obliged to apply those rules as such. (38) Rather, those principles should be applied in the light of the wording and the objective of the specific provision interpreted and of the system it establishes. (39)

38. The Court has shown itself willing to apply the ‘so far as possible’ formula liberally and has not hesitated to draw on provisions of EU secondary law when construing the provisions of the Association Agreement and related legislation. (40) Thus, in order to interpret the concept of ‘member of the family’ in Article 6 of Decision No 1/80, the Court has referred to Regulation (EEC) No 1612/68. (41) When determining the scope of the public policy exception in Article 14 of Decision No 1/80, the Court has held that ‘reference should be made to the interpretation given to that exception in the field of freedom of movement for workers who are nationals of a Member State’ and more specifically to Council Directive 64/221/EEC. (42)

39. The judgment in Toprak went so far as to draw analogies between the standstill clause in Article 13 of Decision No 1/80 and a standstill clause in the Sixth VAT Directive. (43) (That case was decided without an Opinion from the Advocate General and I myself entertain some doubt as to whether it is really appropriate to apply the interpretation of fiscal legislation by analogy to labour market provisions forming part of the association arrangements between the EU and a third country.)

40. The Court has also applied by analogy principles from its case-law on freedom of movement for workers within the European Union to free movement of workers between the Member States and Turkey. As early as Kus, the Court referred to the principles set out in Antonissen (44) to hold that a Turkish worker could rely directly on Article 6(1) of Decision No 1/80 in order to obtain the renewal not only of his work permit but also of his residence permit. (45)

41. The Court has also cross-referred to its case-law dealing with other international agreements concluded with third countries, regardless of their nature (whether or not they were association agreements) and their objective (whether or not they concerned accession to the European Union). (46)

42. However, the case-law has also recognised some important limits to applying the ‘so far as possible’ formula.

43. First, in Demirkan the Court held that ‘the interpretation given to the provisions of European Union law, including Treaty provisions, concerning the internal market cannot be automatically applied by analogy to the interpretation of an agreement concluded by the European Union with a non-Member State, unless there are express provisions to that effect laid down by the agreement itself’. (47)

44. Thus, where there is no specific provision in EEC-Turkey Association law addressing a particular issue, the Court has expressly declined to extend EU law provisions to that issue by analogy. In Bozkurt, it held that in the absence of any specific provision conferring on Turkish workers a right to remain in the territory of a Member State after working there, a Turkish national’s right of residence will cease to exist if the person concerned becomes totally and permanently incapacitated for work. Since the conditions under which EU workers could exercise a right to remain were, under what is now Article 45(3)(d) TFEU, made subject to regulations to be drawn up by the Commission, the rules applicable under those regulations could not simply be transposed to Turkish workers. (48)

45. Second, where the objectives and content of provisions of EU secondary law exceed those of the equivalent provisions of EEC-Turkey Association law, the Court has ruled out interpretation of the latter by analogy with the former. For example, the scheme of protection against expulsion enjoyed by EU citizens under Article 28(3)(a) of Directive 2004/38/EC (49) could not be transposed mutatis mutandis to the guarantees against expulsion afforded to Turkish nationals under Article 14(1) of Decision No 1/80. In so holding, the Court observed that the purpose of Directive 2004/38 was not solely economic but also to strengthen the rights of EU citizens; that its legal basis was broader than the provisions on freedom of movement for workers; and that two legal schemes in question could not be considered equivalent. (50)

46. Third, the Court has refused to transpose the interpretation of an EU freedom in its case-law to the EEC-Turkey Association when that interpretation has been reached in a judgment issued after the adoption of the association rules and there is no indication that the Contracting Parties, when signing the Association Agreement and the Additional Protocol, intended that those instruments be interpreted in that way. Thus, the interpretation in EU law of the freedom to provide services as including the ‘passive’ freedom for recipients of services to go to another Member State in order to receive a service there, recognised by the case-law in 1984, (51) could not be transposed to the standstill clause concerning the freedom to provide services in Article 41(1) of the Additional Protocol, signed in 1970. (52)

The nature and function of the standstill clauses in the Association Council decisions

47. The standstill clauses in the decisions of the Association Council have been the subject of a number of preliminary references beginning with Sevince. In that judgment, the Court recognised that such clauses have direct effect. (53)

48. A standstill clause does not in itself create rights. (54) The obligation it establishes amounts in law to a duty not to act. It does not operate in the same way as a substantive rule by rendering inapplicable the relevant substantive law which it replaces. Rather, it is a quasi-procedural rule which specifies, ratione temporis, the provisions of a Member State’s legislation to which reference must be made in order to assess the position of a Turkish national who wishes to exercise his economic freedoms in a Member State. (55) Those provisions may regulate, inter alia, the substantive or procedural conditions governing the first admission to the territory of a Member State of Turkish nationals intending to exercise those economic freedoms. (56)

49. The standstill clauses in the Association Council decisions do not call into question the competence, as a matter of principle, of the Member States to conduct their national immigration policy. (57) They merely preclude the adoption of new restrictions in national legislation that may place further obstructions in the way of gradually establishing freedom of movement for workers between the Member States and Turkey. To put the point graphically: they freeze, at the moment in time when the standstill clause entered into force, the applicable law in each Member State in respect of restrictions on the conditions of access to employment for Turkish citizens.

50. The first question concerns the temporal scope of the standstill clause in Decision No 2/76. The referring court asks in essence whether that decision is still applicable to the national legislation at issue, which was introduced on 5 October 1980 (that is, before Decision No 1/80 entered into force on 1 December 1980).

51. The Landeshauptstadt Stuttgart and the German Government submit that Decision No 2/76 and its standstill clause can no longer be applied. They argue that Article 59(1)(a) of the VCLT and this Court’s case-law in Bozkurt support that approach. (58) The German Government contended at the hearing that once Decision No 1/80 entered into force it retroactively replaced Decision No 2/76 for all purposes and has thus became the only reference point for evaluating the validity of new restrictions. However, since the German legislation at issue already existed when Decision No 1/80 came into force, it falls outwith the scope of the standstill clause in Article 13 of that decision.

52. The Commission submits that the standstill clause in Article 7 of Decision No 2/76 continues to apply to national measures introduced between 1 December 1976 and 30 November 1980 inclusive.

54. The temporal scope of Decision No 2/76 is expressly defined by that decision read in conjunction with Decision No 1/80. Decision No 2/76 entered into force on 20 December 1976 (59) and applied for a ‘first stage’ of four years, as from 1 December 1976. Decision No 2/76 was to ‘continue to apply until the beginning [of] the subsequent stage’. (60) Decision No 1/80 marked the commencement of the subsequent stage. That decision entered into force on 1 July 1980 (61) but Section 1 (‘Questions relating to employment and the free movement of workers’) of Chapter II (‘Social provisions’) applied from 1 December 1980. (62)

55. The texts of the two decisions and the system of gradual implementation of free movement of workers contemplated by EEC-Turkey Association law make it clear that Decision No 1/80 was meant to succeed Decision No 2/76 seamlessly. Decision No 2/76 thus applied from 20 December 1976 to 30 November 1980. (63) The relevant section of Decision No 1/80 has applied since 1 December 1980. (64)

56. Nothing in Decision No 1/80 or in the overall scheme of EEC-Turkey Association law indicates that that decision was intended to have a retroactive effect on the temporal scope of Decision No 2/76 or to annul it ex tunc. The replacement of a legal act by the one that succeeds it develops its effects ex nunc, unless the succeeding legal act is given a retroactive effect or annuls the previous act ex tunc. (65)

57. Furthermore, the interpretation proposed by the German Government would create, ex post, a legal vacuum. Decision No 1/80 cannot apply retroactively to situations arising prior to 1 December 1980. Such situations, which were previously covered by Decision No 2/76, would — on the German Government’s logic — become unregulated when Decision No 1/80 entered into force and would remain unregulated thereafter. That cannot be right.

58. In Bozkurt, the Court noted that Decision No 1/80 constitutes a further stage in securing freedom of movement for workers and replaced, as from its entry into force, the corresponding, less favourable, provisions of Decision No 2/76. (66) As I read that judgment, however, the Court nowhere suggested that on entering into force, Decision No 1/80 obliterated the legal effects exercised by Decision No 2/76 in respect of events (here, the entry into effect of the contested German rules on 5 October 1980) occurring during the validity of the latter.

59. I therefore conclude that the lawfulness of new restrictions on the freedom of movement for workers introduced by a Member State between the entry into force of Decision No 2/76 and the entry into force of Decision No 1/80 falls to be assessed pursuant to Article 7 of Decision No 2/76.

60. By Question 2 the referring court asks in essence whether, in the light of the Court’s case-law concerning the standstill clause in Article 13 of Decision No 1/80, the standstill clause in Article 7 of Decision No 2/76 should be interpreted as precluding the imposition of new restrictions on family reunification for family members of Turkish workers.

61. The Landeshauptstadt Stuttgart and the German Government argue that family reunification does not fall within the scope of the standstill clause in Article 7 of Decision No 2/76, since that provision does not concern family members of Turkish nationals. The Landeshauptstadt Stuttgart adds that Turkish nationals are also subject to a visa requirement by virtue of EU law. (67)

62. The Commission submits that, like the standstill clauses in Article 13 of Decision No 1/80 and in Article 41(1) of the Additional Protocol, Article 7 of Decision No 2/76 also covers family reunification. The Court’s case-law in respect of those other provisions (68) should now be transposed to the standstill clause in Decision No 2/76.

63. As the Commission rightly observes in its written submissions, whether the term ‘new restrictions on the conditions of access to employment’ should include restrictions on family reunification has not been regulated by any legislative act of EEC-Turkey Association law. I shall therefore first analyse the scope and interpretation of that phrase and then turn to examine whether the Court’s case-law on the meaning of that expression in the context of Decision No 1/80 should be transposed to the earlier Decision No 2/76.

The scope and interpretation of ‘new restrictions on the conditions of access to employment’ in Decision No 1/80

64. The question of family reunification in EEC-Turkey Association law on freedom of movement for workers was first addressed in Demirel, (69) where the wife of a Turkish national living and working in Germany had been ordered to leave the country on the expiry of her visa. The visa in question was valid only for the purposes of a visit and not for family reunification.

65. In his Opinion, Advocate General Darmon examined the scope of the standstill clause in Decision No 1/80 in the context of family reunification. He pointed out that the right to family reunification for workers who were nationals of a Member State had had to be introduced by way of an express provision in Regulation No 1612/68. In the absence of an analogous provision in EEC-Turkey Association law, such a right could not be deemed to arise by implication. Although family reunification is certainly a necessary element in giving effect to freedom of movement for workers, it does not become a right until the freedom which it represents has taken effect and a special provision on the matter has been adopted. Advocate General Darmon concluded that the standstill clause in Article 13 of Decision No 1/80 ‘concerns access to employment and not family reunification. It makes the residence of members of the family conditional upon authorisation from the competent authorities of the Contracting Parties. It cannot therefore be construed as covering a right to family reunification …’. (70)

66. The Court endorsed that conclusion. It noted that Decision No 1/80 was the only decision adopted for the progressive attainment of freedom of movement for workers by the Association Council, (71) and that that decision prohibited further restrictions on the conditions governing access to employment for Turkish workers who were already duly integrated in the labour force of a Member State. No decision had been adopted in the sphere of family reunification. (72) The Court therefore proceeded to analyse the case before it exclusively on the basis of Articles 7 and 12 of the Association Agreement and Article 36 of the Additional Protocol. It held that Article 12 of the Association Agreement and Article 36 of the Additional Protocol ‘essentially serve to set out a programme and are not sufficiently precise and unconditional to be capable of governing directly the movement of workers’; and that ‘it is not possible to infer from Article 7 of the Association Agreement a prohibition on the introduction of further restrictions on family reunification’. (73) It is therefore crystal clear that the Court in Demirel considered that Decision No 1/80 (including the standstill clause contained in Article 13 thereof) did not cover restrictions on family reunification for Turkish workers.

67. Twenty-nine years later, the question was back before the Court in Genc . (74)The Court compressed the four very detailed and knowledgeable questions from the referring court into a single question of two parts: (i) was a national measure rendering family reunification more difficult covered by the standstill clause in Article 13 of Decision No 1/80 and (ii) if so, could the restriction contained in the contested national measure nonetheless be justified? Departing from its clear ruling in Demirel (without however referring to that judgment), the Court answered those two parts, respectively, ‘yes’ and ‘no’. It is worth examining with care the path followed by the Court in reaching the first part of that conclusion, before asking whether it should be transposed from Decision No 1/80 to its predecessor, Decision No 2/76.

68. The Court began by citing, as settled case-law, an EEC-Turkey freedom of establishment case (Savas ) (75)and a Decision No 1/80 case involving charges for issuing residence permits (Sahin ) (76)for the proposition that ‘the standstill clauses set out in Article 13 of Decision No 1/80 and Article 41(1) of the Additional Protocol prohibit generally the introduction of new internal measures which are intended to or have the effect of making the exercise by a Turkish citizen of an economic freedom subject, on the territory of the Member State concerned, to conditions more stringent than those which were applicable at the date of entry into force of that decision or that protocol as regards that Member State’. (77)In Savas (at paragraphs 56 to 63) the Court had drawn extensively on rulings involving Decision No 1/80 for principles that ‘must also apply, by analogy, in the context of … the right of establishment’. In Sahin (at paragraph 65) the Court had already stated that, ‘since …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 … the objective pursued by those two clauses is identical (see Case C‑37/98 Savas [2000] ECR I‑2927, paragraph 50, and Abatay and Others, paragraphs 70 to 74), the interpretation [of Article 41(1) of the Additional Protocol] set out in the preceding paragraph ^[(78)^] must be equally valid as regards the standstill obligation which is the basis of Article 13 in relation to freedom of movement for workers’.

69. I pause to observe that in Abatay and Others the Court had already conflated the wording of Article 41(1) of the Additional Protocol, which precludes in general terms the introduction of ‘any new restrictions on the freedom of establishment and the freedom to provide services’ and the wording of Article 13 of Decision No 1/80, which prohibits ‘new restrictions on the conditions of access to employment applicable to workers and members of their families legally resident and employed in [the EU and Turkey]’ (emphasis added). (79) It is evident, however, that the wording of the two provisions is markedly different. Applying the principles of interpretation consecrated by the Court in earlier case-law — notably the Polydor principle and the general principles of interpretation as well as the ‘as far as possible’ principle (80)— it would be necessary to have due regard to that textual divergence as well as to the overall context and scheme of the measures (freedom of establishment and freedom to provide services in general terms in Article 41(1) of the Additional Protocol; the securing of freedom of movement forworkers by progressive stages in Article 36 of the Additional Protocol, on which Decision No 1/80 is based). Both a textual and a teleological approach thus indicate that the two sets of provisions should not be given exactly the same interpretation and scope.

70. In Genc , the Court next confirmed that the reference point for the analysis under Article 13 of Decision No 1/80 is not the incoming family member, but rather the Turkish worker residing in the Member State concerned. (81)In the present case, the issue is therefore whether the husband, Mr Yön, is adversely affected by the contested measures (assuming that they are ‘new’ restrictions) — not whether Mrs Yön is so affected. The focus should be placed on the worker’s free movement rights.

71. The Court went on to import reasoning from its recent decision in Dogan . In that case, the wife of a Turkish business man (the managing director of a small company) established in Germany and resident there since 1998 had applied in Turkey for a visa for the purposes of family reunification. Her application was dismissed on the grounds that she did not have the necessary basic knowledge of German to be granted a visa for the purposes of family reunification. (82) The Court held that that condition, introduced after the Additional Protocol came into force, was precluded by the standstill clause in Article 41(1) thereof. (83)

72. Citing Dogan , the Court pointed out that ‘the decision of a Turkish national to establish himself in a Member State in order there to exercise 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’. (84)On the basis that the standstill clauses in Article 13 of Decision No 1/80 and Article 41(1) of the Additional Protocol are of the same kind and pursue an identical objective, the Court concluded that the interpretation given to Article 41(1) of the Additional Protocol in Dogan could be transposed to Genc . (85)The Court immediately added that it was ‘only in so far as national legislation tightening the conditions for family reunification … is likely to affect the exercise by Turkish workers … of an economic activity on the territory of the Member State concerned that the view must be taken that such legislation is covered by … Article 13 of Decision No 1/80’ and that ‘the standstill clauses set out in Article 13 of Decision No 1/80 and in Article 41(1) of the Additional Protocol, as interpreted by the Court, in no way imply recognition of a right to family reunification or to a right of establishment and residence for family members of Turkish workers’. (86)

73. Finally, the Court distinguished Demirkan (87) on the facts (since that case concerned a passive beneficiary of the right to receive services, there was no link to the exercise of economic activity) and stated that the interpretation which it was now giving, based on Dogan , was ‘coherent with that given by the Court with regard to the first paragraph of Article 7 of Decision No 1/80, in accordance with which the objective of that provision … is to create conditions conducive to family unity in the host Member State by facilitating the employment and residence of Turkish workers duly registered as belonging to the labour force of the Member State concerned’. (88)

74. With the greatest of respect to the Court, certain difficulties can be identified with the approach taken in Genc .

75. First, it ignores the significant difference in wording between two standstill clauses contained in two instruments of different hierarchical status. The Contracting Parties agreed to include, in the Additional Protocol, a general standstill clause on ‘any new restrictions on the freedom of establishment and the freedom to provide services’. (89) The Association Council, using delegated powers based on Article 36 of the Additional Protocol in order to secure freedom of movement for workers ‘by progressive stages’, framed a much more limited standstill clause in Decision No 1/80 covering only ‘new restrictions on the conditions of access to employment for workers and their families legally resident and employed in [the EU and Turkey]’.

76. Second, Genc conflicts both with Demirel and with more recent EEC-Turkey Association case-law where the Court has held that an express provision in a decision of the Association Council is required to confer an additional right on a Turkish worker. (90) The Association Council could, as I see it, clearly legislate on the basis of Article 36 of the Additional Protocol to deal with conditions hampering family reunification for Turkish workers — but thus far, it has not done so. Alternatively, the Court could have addressed Demirel and Bozkurt in its judgment in Genc and, had it wished to depart from them, constructed a more detailed line of argument (perhaps based on the general evolution of the case-law, the role of the Charter of Fundamental Rights, and so on). But it did not do so.

77. Third, it is noteworthy that EU primary law on freedom of movement for workers (Article 45 TFEU) does not cover the right to family reunification. That right for workers who are EU nationals was introduced expressly by secondary law. (91) Whithin Regulation No 1612/68 (already used as guidance by the Court when interpreting Decision No 1/80), (92) it is Title I of Part 1 that deals with access to employment. A later section (Title III of Part 1, entitled ‘Workers’ families’) regulates family reunification in relation to workers who are nationals of a Member State and who are already employed in another Member State. Thus, Regulation No 1612/68 does not link family reunification to access to employment (the sole subject matter identified by the text of Article 13 of Decision No 1/80).

78. Fourth, other provisions of Decision No 1/80 concerning family members of workers refer to persons that ‘have been authorised to join’ those workers (93) or who are legally resident in the host Member State. (94) That suggests that the Association Council did not intend Decision No 1/80 to regulate the first entry of family members. And the Court has indeed expressly held elsewhere that in the context of EEC-Turkey Association law ‘the members of the family of the migrant Turkish worker do not have a right to join him to live as a family; their ability to join him depends rather on a decision of the national authorities taken solely on the basis of the law of the Member State concerned’; (95) and that ‘Member States have … retained the power to regulate the entry into their territory of the members of the family of a Turkish worker’. (96)

79. Finally, the judgment in Genc itself reiterates that Article 13 of Decision No 1/80 focuses on the situation of the Turkish worker, not the family member. (97) The first entry of a Turkish citizen into a Member State is conditional upon his intending to exercise his economic freedom to work there. (98) Curiously, the subsequent entry of a family member for the purposes of family reunification with that worker now appears to be subject to fewer requirements than the principal right of the worker himself.

80. In making these observations, I am not suggesting that the conditions for entry and residence of family members of a Turkish national for the purposes of family reunification will somehow not affect the decisions that he makes as to whether, and for how long, he exercises an economic activity within the European Union. Of course they will. The question here is simply whether, on a textual and teleological construction, Article 13 of Decision No 1/80 convincingly bears the meaning ascribed to it by the Court in Genc .

81. Nor am I arguing against the liberal approach that has been taken by the Court in finding ‘new restrictions’ on Turkish workers’ economic freedoms in relation, inter alia, to the requirement of a work permit for lorry drivers; (99) visa requirements for lorry drivers not established in a Member State; (100) and the introduction of administrative charges for obtaining a residence permit in the host Member State. (101) All those decisions involved restrictions that could be fitted, without much difficulty, within the wording and teleology of Article 13 of Decision No 1/80. I do not think that the same can be said of new restrictions affecting family reunification.

82. My starting point is that EEC-Turkey Association law envisages a progressive improvement in the conditions governing the employment of Turkish workers within the European Union.

83. Decision No 2/76 laid down the detailed rules for the ‘first stage’ after the adoption of the Additional Protocol. (102) Article 3 of that decision states that ‘Turkish children who are residing legally with their parents in a Member State … shall be granted access … to courses of general education’ and arguably gives them an entitlement to enjoy ‘advantages provided for in this connection under national laws’. (103) There is otherwise no mention of family members of Turkish workers in Decision No 2/76. The text of the standstill clause in that decision (Article 7) contains no indication that it was intended to cover family reunification.

84. Decision No 1/80 records that it is ‘necessary to improve the treatment accorded [to] workers and members of their families in relation to the arrangements introduced by Decision No 2/76’. (104) The only difference in the wording between the two standstill clauses — Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80 — is indeed that the latter includes, after the phrase ‘new restrictions on the conditions of access to employment of workers’, five extra words: ‘and members of their families’.

85. Given that the two decisions represent sequential steps in the ‘progressive stages’ of securing freedom of movement for workers and that Decision No 1/80 is mean to ‘improve the treatment’ accorded to workers and their families by Decision No 2/76, the trend over time should be from ‘less favourable treatment’ to ‘more favourable treatment’. It would therefore not be unusual to interpret the provisions of Decision No 2/76 in a less extensive manner when it comes to matters concerning family life and family members than the provisions of Decision No 1/80, which replaced it.

86. For the reasons that I have identified above, (105) the Court’s analysis in Genc in respect of Article 13 of Decision No 1/80 is not as robust as one would wish. I invite the Court not to transpose that interpretation to the predecessor standstill clause on restrictions on conditions of access to employment for workers, namely Article 7 of Decision No 2/76.

87. I add that that the result is not to deprive Turkish workers of any right to have their family members join them within the territory of the European Union. Council Directive 2003/86/EC contains a lexgeneralis governing family reunification. (106) EEC-Turkey Association law is a lex specialis, introducing more specific provisions applicable to Turkish nationals as regards the matters to which it applies. (107) If Turkish workers are not covered by the lex specialis, they can still rely on the lex generalis.

88. Should the Court, contrary to the views that I have expressed, consider that the national legislation in question is caught by Article 7 of Decision No 2/76, it will be necessary to examine whether Article 59 of the Additional Protocol overrides the application of that standstill clause.

89. Article 59 of the Additional Protocol states that, ‘in the fields covered by this Protocol Turkey shall not receive more favourable treatment than that which Member States grant to one another pursuant to [the EU Treaties]’. It thus reflects the principle that membership of the European Union is the deepest and most special relationship that a State can obtain; and that any other relationship between a third country and the European Union (such as the EEC-Turkey Association Agreement) must necessarily, in consequence, be less privileged.

90. The Additional Protocol is primary law within the hierarchy of EEC-Turkey Association law. Decisions adopted by the Association Council exercising delegated powers must therefore be interpreted in a manner that is consistent with the ‘not more favourable treatment’ rule that it lays down. I note that recent judgments that have included family reunification within the scope of the standstill clause in Article 13 of Decision No 1/80 do not appear to have addressed this further and necessary test of interpretation. (108)

91. That being said, the Court has previously applied Article 59 of the Additional Protocol in the context of freedom of movement for Turkish workers and has consistently duly held that Turkish nationals cannot be placed in a more favourable position than that of EU citizens. (109) There are two lines of case-law, one concerning the substantive (positive) rights established for Turkish workers and their family members and the other concerning the negative obligation imposed on Member States by the standstill clauses.

92. In the first, the Court has looked at the overall picture rather than at precise equivalence in terms of the rights granted to Turkish nationals and those granted to EU citizens. (110) Thus, for example, the Court refused to compare the situation of the child of a Turkish worker to that of a descendant of a national of a Member State, having regard to the significant differences between their respective legal situations. (111)

93. In the second, consisting of two cases concerning the introduction of administrative charges for obtaining a residence permit in the Netherlands, the Court has taken a different approach. It has held that Article 13 of Decision No 1/80, applied in conjunction with the ‘not more favourable treatment’ rule, does not preclude the introduction of legislation which makes the granting of a residence permit or an extension of the period of validity thereof conditional on the payment of administrative charges by Turkish nationals residing in the territory of the host Member State. The Court went on to look at the proportionality of the new restriction that would otherwise be precluded by the standstill clause. (112)

94. I derive the following principles from my review of the case-law: (i) Article 59 of the Additional Protocol does not preclude the adoption of new restrictions that apply in the same manner to Turkish nationals and to EU citizens; (ii) however, it is necessary to compare the resulting legal situation of Turkish nationals, on the one hand, and EU citizens, on the other hand; (iii) the new restrictions for Turkish workers need not be identical to those bearing on EU citizens, but must be equivalent, having regard to the different situations of the two categories; (113) (iv) the new restrictions for Turkish workers must not be disproportionate to those applicable to EU citizens; (114) (v) disproportionate new restrictions would also fall foul of the principle of non-discrimination laid down in Article 9 of the Association Agreement. (115)

95. In the present case, the appropriate comparison is between a Turkish worker working in Germany and wishing to be joined by his Turkish wife and a non-German EU citizen working in Germany wishing to be joined by his third-country national spouse, including by a spouse who is a Turkish national.

96. Unless the family member in question already holds a valid residence permit, Article 5(2) of Directive 2004/38 requires an entry visa in accordance with Regulation No 539/2001 or, where appropriate, with national law. (116) Since that directive entered into force, it would, I think, be permissible for Member States to introduce a similar visa requirement for family members of Turkish workers, as long as the requirements imposed on them were not disproportionate when compared to the visa requirement introduced by Directive 2004/38. (117)

97. Furthermore, Article 5(2) of Directive 2004/38 provides that when a family member of an EU citizen does not have the necessary documents or entry visa he is not to be turned back automatically but is to be given every reasonable opportunity to obtain the necessary documents. For the same category of persons, Article 9(3) provides that failure to comply with the requirement to apply for a residence card may make the person concerned liable to proportionate and non-discriminatory sanctions. Thus, the Commission submits, family members of Turkish workers are not in a more favourable situation than third-country nationals’ family members of EU citizens, since for the latter illegal entry into a Member State does not justify refusal of a residence permit. It would then follow that Article 59 of the Additional Protocol would not intervene so as to alter the result obtained by applying the standstill clause. However, if the result of applying the standstill clause were to be that third-country national family members of Turkish nationals were then subject to no visa requirement, whereas third-country national family members of EU citizens were subject to a visa requirement, that would be precluded by Article 59 of the Additional Protocol.

98. The fact that a requirement imposed on a Turkish national is stricter than that imposed on EU citizens does not of itself mean that the former is disproportionate. (118) The particular situation of Turkish nationals as third-country nationals, the need for Member States to issue an authorisation in accordance with national law so that family members may join a Turkish worker and the procedure for implementing such a requirement must be considered.

99. It is also necessary to examine whether the consequences for contravening the rules are disproportionately severe for a Turkish worker’s family member in comparison to those applicable to third-country national family members of EU citizens. Here, I note that Paragraph 5(2) of the Law on Residence provides that the visa requirement before entering Germany may be waived if, having regard to the particular circumstances of the case it would be unreasonable to restart the visa procedure. That seems to me to deal adequately with proportionality.

100. To conclude in respect of the second question referred: I consider that the answer to that question should be that the introduction of a visa requirement for the spouse of a Turkish worker seeking to join that worker for the purposes of family reunification does not fall within the scope of Article 7 of Decision No 2/76.

101. Question 3 is relevant only if, contrary to the views that I have just expressed, the Court decides to transpose its ruling in Genc to the standstill clause in Article 7 of Decision No 2/76. In its third question, the referring court asks whether the national measure requiring a visa can be justified on the basis of an overriding reason in the public interest, in particular the objective of effective immigration control and the management of migration flows, where the particular circumstances of the individual case are taken into account through the operation of a hardship clause.

102. The Landeshauptstadt Stuttgart, the German Government and the Commission all submit that the standstill clause in Decision No 2/76 does not preclude the introduction of national legislation adopted with that objective, provided that that legislation respects the principle of proportionality.

104. First, that interpretation accords with the principles of the TFEU and the Court’s case-law on freedom of movement for workers that are to be applied, so far as possible, to freedom of movement for workers within the context of the EEC-Turkey Association. (119)

105. The Court has introduced the concept of legitimate objectives that may justify national measures which restrict free movement for workers within the European Union because of the broad scope of what is now Article 45 TFEU and the fact that the derogations from the freedom of movement for workers in Article 45(3) TFEU are to be interpreted strictly. Thus, an obstacle to that freedom may nevertheless be compatible with Article 45 TFEU provided that it pursues a legitimate aim compatible with the Treaty and is justified by overriding reasons in the public interest and that its application is such as to ensure achievement of the aim in question and does not go beyond what is necessary for that purpose. (120)

106. Similarly, in the context of EEC-Turkey Association law the wide interpretation given to freedom of movement for workers in Decision No 2/76 and Decision No 1/80, combined with the restrictive interpretation of the derogations on grounds of public policy, public security and public health (in Articles 9 and 14 of those decisions respectively), (121) renders the concept of overriding requirements in the public interest necessary to strike the correct balance within the system of freedom of movement for workers in the EEC-Turkey Association, by analogy with the situation within the internal market.

107. Second, the case-law has already recognised that justification in the context of prohibiting new conditions for the reunification of Turkish workers with their family members, insofar as the resulting restrictions are suitable to achieve the legitimate objective pursued and do not go beyond what is necessary in order to attain it. (122)

108. The following have already been recognised in the case-law as representing overriding requirements in the public interest justifying the introduction of new restrictions to the exercise of the economic freedoms under EEC-Turkey Association law: preventing unlawful entry and residence; (123) preventing forced marriages; (124) ensuring the successful integration of third-country nationals; (125) and managing migration flows efficiently. (126) The list is not exhaustive and I agree with Advocate General Mengozzi that the Court recognises that the Member States enjoy discretion in this area. (127)

109. In the present case, Germany invokes the efficient management of migration flows to justify introducing a visa requirement for the purposes of family reunification with a Turkish worker. That objective has already been accepted as an overriding requirement in the public interest pursuing an objective compatible with the Treaty. It is therefore, in principle, capable of justifying a new restriction notwithstanding the standstill clause. (128) However, it will also be necessary for the national court to check whether the requirement at issue satisfies the proportionality test. (129) In so doing, it must consider whether the national measure is suitable to achieve the objective pursued and does not go beyond what is necessary in order to attain that objective. (130)

110. As regards the suitability of the measure, it seems to me that the case-law has already accepted that a visa requirement, which allows migration flows to be monitored, is suitable to achieve the objective of managing migration flows efficiently. (131)

111. As to whether the measure at issue goes beyond what is necessary in order to attain the objective pursued, the Court has explained that, in principle, the requirement for nationals of third countries to hold a visa in order to enter and reside in a Member State cannot in itself be regarded as disproportionate in relation to the objective pursued. 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. (132)

112. In that respect, the German legislation in question requires a third-country national wishing to obtain a residence permit to have entered the country with the necessary visa and to have already, in his visa application, furnished the key information required for the residence permit. The visa requirement may, however, be waived if special circumstances relating to the individual case render it unreasonable to require a subsequent visa application.

113. I consider that by making provision for an exemption in an appropriate individual case, the procedure set out in the German legislation implementing the visa requirement respects the principle of proportionality.

114. It will be for the national court, which will have available to it the necessary information, to assess whether Mrs Yön’s case displays the necessary special features to trigger that exemption. Relevant factors are likely to include Mrs Yön’s age, her condition of health, her level of dependency upon her husband and her ability to travel. (133)

115. I therefore conclude that, should the Court find that legislation such as that at issue in the main proceedings constitutes a new restriction on the conditions of access to employment for Turkish workers within the meaning of Article 7 of Decision No 2/76, that restriction may be justified on the basis of overriding requirements in the public interest, such as the efficient management of migration flows. Any restriction must be suitable to achieve the legitimate objective pursued and not go beyond what is necessary to attain it. It will be for the national court to determine whether that is the case.

116. I therefore propose that the Court should answer the questions referred by the Bundesverwaltungsgericht (Federal Administrative Court, Germany) as follows:

– The lawfulness of new restrictions on freedom of movement for workers introduced by a Member State between the entry into force of Decision No 2/76 of the EEC-Turkey Association Council and the entry into force of Decision No 1/80 of the EEC-Turkey Association Council, falls to be assessed pursuant to Article 7 of Decision No 2/76.

– The introduction of a visa requirement for the spouse of a Turkish worker seeking to join that worker for the purpose of family reunification does not fall within the scope of Article 7 of Decision No 2/76.

– New restrictions on the conditions of access to employment for Turkish workers within the meaning of Article 7 of Decision No 2/76 may be justified on the basis of overriding requirements in the public interest, such as the efficient management of migration flows. Any restriction must be suitable to achieve the legitimate objective pursued and not go beyond what is necessary to attain it. It will be for the national court to determine whether that is the case.

2 Decision No 2/76 of the Association Council of 20 December 1976 on the implementation of Article 12 of the Association Agreement (‘Decision No 2/76’). The decision has not been published in the Official Journal of the European Union. It is however available in a useful compilation of relevant texts, published under the authority of the Council in 1992: see https://www.ab.gov.tr/files/ardb/evt/EEC-Turkey_association_agreements_and_protocols_and_other_basic_texts.pdf (‘the Council compilation of texts’).

3 Agreement establishing an Association between the European Economic Community and Turkey and the Additional Protocol, signed at Ankara on 12 September 1963 (OJ 1973 C 113, p. 1).

4 For the establishment and functioning of the Association Council, see Article 22 et seq. of the Association Agreement.

5 Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association, created under the Agreement establishing an Association between the European Economic Community and Turkey (‘Decision No 1/80’). The decision has not been published in the Official Journal of the European Union but is available in the Council compilation of texts.

6 Article 2(3) of the Association Agreement. The first and second of those stages ended, respectively, on 1 January 1973 (with the entry into force of the Additional Protocol to the Association Agreement, signed at Brussels on 23 November 1970 (OJ 1973 C 113, p. 17) (‘the Additional Protocol’)) and on 31 December 1995 (with the entry into force of Decision No 1/95 of the EEC-Turkey Association Council of 22 December 1995 on implementing the final phase of the Customs Union [envisaged by Article 2(2) of the Association Agreement] (OJ 1996 L 35, p. 1)).

11 Article 1(1) and (2) of Decision No 2/76. Thus, although the decision’s title indicates it is a decision ‘on the implementation of Article 12 of the [Association Agreement]’, its second recital and Article 1(1) make it clear that the true legislative basis is Article 36 of the Additional Protocol.

14 The Association Council has adopted other measures, not relevant to this case, concerning the rights of Turkish workers, notably Decision No 3/80 of the Association Council of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families (OJ 1983 C 110, p. 60).

20 Fourth recital and Article 28 of the Association Agreement. The latter limits itself to recording that once the operation of that agreement permits envisaging full acceptance by Turkey of the obligations arising out of the TFEU, the Parties are to examine the possibility of Turkey acceding to the EU. See also judgment of 4 May 1999, Sürül, C‑262/96, EU:C:1999:228, paragraph 70.

21 Judgments of 8 December 2011, Ziebell, C‑371/08, EU:C:2011:809, paragraph 64; of 24 September 2013, Demirkan, C‑221/11, EU:C:2013:583, paragraphs 50 and 51; and of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraph 52.

22 See, to that effect, Articles 2(1) and (2), 3, 4 and 5 of the Association Agreement. The economic purpose is also apparent from the titles of Chapters 1, 2 and 3 in Title II of the agreement, which relate to the implementation of the transitional stage. Those chapters are entitled ‘Customs union’, ‘Agriculture’ and ‘Other economic provisions’, respectively. See, in that regard, judgment of 24 September 2013, Demirkan, C‑221/11, EU:C:2013:583, paragraph 51.

25 See recital 2 and Article 1 of Decision No 1/80. See also, to that effect, judgment of 6 June 1995, Bozkurt, C‑434/93, EU:C:1995:168, paragraph 14.

26 Judgment of 18 December 2014, United Kingdom v Council, C‑81/13, EU:C:2014:2449, paragraph 52. See also the Opinion of Advocate General Kokott, EU:C:2014:2114, point 79.

27 Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) and Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons (OJ 2002 L 114, p. 6). See also in that respect Opinion of Advocate General Kokott in United Kingdom v Council, C‑81/13, EU:C:2014:2114, points 74 to 80.

28 Judgment of 18 December 2014, United Kingdom v Council, C‑81/13, EU:C:2014:2449, paragraph 50.

29 Judgment of 24 September 2013, Demirkan, C‑221/11, EU:C:2013:583, paragraph 53 and the case-law cited.

30 Judgment of 8 December 2011, Ziebell, C‑371/08, EU:C:2011:809, paragraph 61 and the case-law cited.

31 Signed in Vienna on 23 May 1969, United Nations Treaty Series, vol. 1155, p. 331 (‘the VCLT’).

32 Opinion 1/91 (First Opinion on the EEA Agreement) of 14 December 1991, EU:C:1991:490, paragraph 14.

33 Judgment of 9 February 1982, Polydor and RSO Records, 270/80, EU:C:1982:43, paragraph 15. That case concerned the agreement concluded between the European Economic Community and the Portuguese Republic, signed on 22 July 1972 (OJ, English Special Edition 1972 (L 301), p. 167).

34 Judgment of 8 December 2011, Ziebell, C‑371/08, EU:C:2011:809, paragraph 62.

35 See to that effect, judgment of 27 September 2001, Gloszczuk, C‑63/99, EU:C:2001:488, paragraph 52, in the context of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part (OJ 1993 L 348, p. 2). See also the Opinion of Advocate General Cruz Villalón in Demirkan, C‑221/11, EU:C:2013:237, point 63.

36 See the Opinion of Advocate General Cruz Villalón in Demirkan, C‑221/11, EU:C:2013:237, point 60.

37 See to that effect judgment of 6 June 1995, Bozkurt, C‑434/93, EU:C:1995:168, paragraph 20. See also judgment of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraph 52 and the case-law cited.

38 Judgment of 18 December 2014, United Kingdom v Council, C‑81/13, EU:C:2014:2449, paragraph 51.

39 See, to that effect, judgment of 29 March 2012, Kahveci, C‑7/10 and C‑9/10, EU:C:2012:180, paragraph 25; see further the principles laid down in point 35 above.

40 The first step in that direction was taken in the judgment of 5 October 1994, Eroglu, C‑355/93, EU:C:1994:369, paragraph 21, concerning the possibility for Turkish workers to extend their residence permits. See also judgment of 10 February 2000, Nazli, C‑340/97, EU:C:2000:77, paragraphs 56 and 57, concerning the scope of the public policy exception provided by Article 14(1) of Decision No 1/80. In the context of the free movement of services, see judgment of 11 May 2000, Savas, C‑37/98, EU:C:2000:224, paragraphs 47 and 48, which drew on Article 53 EC to interpret Article 41(1) of the Additional Protocol.

41 Regulation of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475). See judgment of 19 July 2012, Dülger, C‑451/11, EU:C:2012:504, paragraph 49 and the case-law cited.

42 Directive of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1963-1964(I), p. 117). See judgment of 4 October 2007, Polat, C‑349/06, EU:C:2007:581, paragraphs 30 and 31 and the case-law cited.

43 Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1). See judgment of 9 December 2010, Toprak, C‑300/09 and C‑301/09, EU:C:2010:756, paragraphs 56 to 58.

44 Judgment of 26 February 1991, Antonissen, C‑292/89, EU:C:1991:80. The Court held in paragraph 13 that the Treaty principles on freedom of movement for workers imply the right for Union citizens to stay in other Member States for the purposes of seeking employment.

45 Judgment of 16 December 1992, Kus, C‑237/91, EU:C:1992:527, paragraph 35. Reference to the Court’s case-law in the area of freedom of movement for workers under EU law has been standard practice ever since. See, inter alia, judgments of 10 February 2000, Nazli, C‑340/97, EU:C:2000:77, paragraph 57, and of 11 November 2004, Cetinkaya, C‑467/02, EU:C:2004:708, paragraphs 44 and 45.

46 See, for example, judgment of 21 October 2003, Abatay and Others, C‑317/01 and C‑369/01, EU:C:2003:572, paragraph 81, on the interpretation of the standstill clause in Article 13 of Decision No 1/80 where the Court drew inspiration from its case-law on the Association with Greece (judgment of 23 March 1983, Peskeloglou, 77/82, EU:C:1983:92). See also order of 25 July 2008, Real Sociedad de Fútbol and Kahveci, C‑152/08, EU:C:2008:450, paragraph 21 et seq., where the Court refers to its case-law on the Association Agreement with Slovakia and to the Partnership Agreement with Russia (Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Slovak Republic, of the other part (OJ 1994 L 359, p. 2) and Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part (OJ 1997 L 327, p. 3)) and considered the parallels to be sufficiently obvious to decide the case by reasoned order. However, in the (unrelated) judgment of 29 March 2012, Kahveci, C‑7/10 and C‑9/10, EU:C:2012:180, paragraph 34, the Court distinguished between Decision No 1/80 on the one hand, and the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco (OJ 1978 L 264, p. 2), on the other hand, by reason of the different general objectives that they pursued in social matters.

47 Judgment of 24 September 2013, Demirkan, C‑221/11, EU:C:2013:583, paragraph 44.

48 See, to that effect, judgment of 6 June 1995, Bozkurt, C‑434/93, EU:C:1995:168, paragraphs 40 and 41.

49 Directive of the European Parliament and of the Council of 29 April 2004 on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77) (‘Directive 2004/38’).

50 Judgment of 8 December 2011, Ziebell, C‑371/08, EU:C:2011:809, paragraph 60 et seq.

51 Judgment of 31 January 1984, Luisi and Carbone, 286/82 and 26/83, EU:C:1984:35.

52 Judgment of 24 September 2013, Demirkan, C‑221/11, EU:C:2013:583, paragraph 59 et seq.

53 See, to that effect, judgment of 20 September 1990, Sevince, C‑192/89, EU:C:1990:322, paragraph 15 et seq.

54 In the system created by the Association Agreement the establishment of new rights or privileges for the nationals of the Contracting Parties is left to the legislative competence of the Association Council (see Article 36 of the Additional Protocol).

55 See, to that effect, judgment of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraph 89 and the case-law cited.

56 Judgment of 21 July 2011, Oguz, C‑186/10, EU:C:2011:509, paragraph 22 and the case-law cited.

57 See judgment of 20 September 2007, Tum and Dari, C‑16/05, EU:C:2007:530, paragraph 58 (in the context of freedom of establishment).

63 There may be some doubt as to whether Decision No 2/76 applied retroactively between 1 December 1976 and 20 December 1976 (compare and contrast Articles 1(2) and 13 of that decision). Fortunately, it is not necessary to decide that issue in order to answer the questions referred by the national court.

64 Article 16(2) of Decision No 1/80 provides that the adoption of a new instrument containing ‘solutions which might apply as from 1 December 1983’. No such new instrument was, however, adopted; and Decision No 1/80 contains no ‘stop date’ for Section 1 of Chapter II.

65 As the Commission observed at the hearing, that is also the solution adopted by the VCLT. Under Article 70 of the VCLT (on the consequences of the termination of a Treaty), the termination of a treaty ‘does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination’ (Article 70(1)(b)). The Landeshauptstadt Stuttgart and the German Government have relied on Article 59 of the VCLT (termination or suspension of the operation of a treaty implied by conclusion of a later treaty), but I do not consider that either of the conditions there laid down is satisfied in the present case. In particular, there is no indication that the parties intended Decision No 1/80, as well as governing the future, to have retroactive effect.

67 Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ 2001 L 81, p. 1), as most recently amended by Regulation (EU) 2017/850 of the European Parliament and of the Council of 17 May 2017 amending Regulation No 539/2001 (OJ 2017 L 133, p. 1).

68 Judgments of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, and of 10 July 2014, Dogan, C‑138/13, EU:C:2014:2066.

70 Opinion of Advocate General Darmon in Demirel, 12/86, EU:C:1987:232, points 27 and 28. Regulation No 15 on initial measures to bring about free movement of workers within the Community (OJ 57, 1961, p. 1073) (‘Regulation No 15’) also contained some provisions on family reunification for nationals of the Member States having exercised their right to freedom of movement for workers.

71 Under Article 36 of the Additional Protocol, the Association Council has exclusive powers to lay down detailed rules to that effect.

72 See judgment of 30 September 1987, Demirel, 12/86, EU:C:1987:400, paragraph 22.

73 See, to that effect, judgment of 30 September 1987, Demirel, 12/86, EU:C:1987:400, paragraphs 23 and 24.

77 Judgment of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraph 33. It seems that that formula was first added in respect of Article 41(1) of the Additional Protocol by judgment of 11 May 2000, Savas, C‑37/98, EU:C:2000:224, paragraph 69 (where it appears as ‘having the object or the effect of’ — the expression constantly used by the Court). The expression ‘intended to’ in Genc seems to be a variation in translation. The Court’s subsequent case-law has been constant in that regard. See, inter alia, judgment of 29 March 2017, Tekdemir, C‑652/15, EU:C:2017:239, paragraph 25 and the case-law cited.

78 The preceding paragraph reads, ‘… Article 41(1) of the Additional Protocol 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 (see Case C‑16/05 Tum and Dari [2007] ECR I‑7415, paragraph 69, and Soysal and Savatli, paragraphs 47 and 49)’.

79 Judgment of 21 October 2003, Abatay and Others, C‑317/01 and C‑369/01, EU:C:2003:572,paragraph 117. The conflation has been maintained in later case-law. See, inter alia, judgment of 29 March 2017, Tekdemir, C‑652/15, EU:C:2017:239, paragraph 25 and the case-law cited.

81 Judgment of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraphs 45 and 46.

82 Judgment of 10 July 2014, Dogan, C‑138/13, EU:C:2014:2066. Although she presented a certificate from the Goethe Institute attesting that she had passed a language test at level A1, it transpired that she was illiterate and had taken the test by answering the multiple-choice questionnaire at random and learning three standard sentences by heart. See paragraphs 17 to 23 of the judgment for a fuller narrative of the events leading up to the reference.

83 Judgment of 10 July 2014, Dogan, C‑138/13, EU:C:2014:2066, paragraph 36.That judgment has attracted a certain amount of criticism. See, for example, Hailbronner, K., ‘The standstill clauses in the EU-Turkey Association Agreement and their impact upon immigration law in the EU Member States’, inRights of third-country nationals under EU association agreements, Brill, Nijhoff, Leiden, Boston, 2015, p. 186 to 201, esp. 194 to 197.

84 Judgment of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraph 40, citing judgment of 10 July 2014, Dogan, C‑138/13, EU:C:2014:2066, paragraph 35.

85 Judgment of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraphs 41 and 42, citing judgment of 29 April 2010, Commission v Netherlands, C‑92/07, EU:C:2010:228, paragraph 48.

86 Judgment of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraphs 44 and 45.

88 Judgment of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraph 49, citing judgment of 17 April 1997, Kadiman, C‑351/95, EU:C:1997:205, paragraphs 34 to 36; judgments of 22 June 2000, Eyüp, C‑65/98, EU:C:2000:336, paragraph 26, and of 30 September 2004, Ayaz, C‑275/02, EU:C:2004:570 paragraph 41.

89 It is true that Article 41(2) gives the Association Council power to determine the rules progressively to abolish existing restrictions on the freedom of establishment and on the freedom to provide services. Self-evidently, the abolition of existing restrictions is a separate matter from ensuring, via a standstill clause, that new restrictions are not introduced.

90 Judgment of 30 September 1987, Demirel, 12/86, EU:C:1987:400. In Bozkurt, the Court refused to recognise the right of a Turkish worker to remain in the Member State where he worked after becoming permanently incapacitated for work, because there was no express provision of EEC-Turkey Association law conferring that right. See judgment of 6 June 1995, C‑434/93, EU:C:1995:168, paragraph 40.

91 See Regulation No 15 (Articles 11 to 15) and Regulation No 1612/68 (Articles 10 to 12). The fifth recital of the latter regulation acknowledges that the exercise of freedom of movement for workers requires obstacles to the worker’s right to be joined by his family to be eliminated.

92 In judgments of 19 July 2012, Dülger, C‑451/11, EU:C:2012:504, paragraph 49, and of 30 September 2004, Ayaz, C‑275/02, EU:C:2004:570, paragraph 45, the Court referred to Article 10 of Regulation No 1612/68 in order to interpret the concept of ‘member of the family’ in Decision No 1/80.

94 Articles 7, first paragraph, first and second intent, 9 and 13 of Decision No 1/80.

96 Judgment of 21 January 2010, Bekleyen, C‑462/08, EU:C:2010:30, paragraph 36, citing judgment of 16 March 2000, Ergat, C‑329/97, EU:C:2000:133, paragraph 42.

97 See, to that effect, judgment of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraphs 45 and 46.

98 Judgment of 7 November 2013, Demir, C‑225/12, EU:C:2013:725, paragraph 34. At an earlier stage, in judgment of 21 October 2003, Abatay and Others, C‑317/01 and C‑369/01, EU:C:2003:572, paragraph 84, the Court held that Article 13 of Decision No 1/80 can benefit a Turkish national only if he has complied with the rules of the host Member State as to entry, residence and, where appropriate, employment and if, therefore, he is legally resident in the territory of that State.

99 Judgment of 21 October 2003, Abatay and Others, C‑317/01 and C‑369/01, EU:C:2003:572.

100 Judgment of 19 February 2009, Soysal and Savatli, C‑228/06, EU:C:2009:101.

103 The wording of the English text is curious, as it states that ‘They [that is, Turkish children] may also be entitled’ to enjoy those advantages. Fortunately there is no need to delve further into this point here.

106 Directive of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12).

107 Article 3(4) of Directive 2003/86 expressly states that it is without prejudice to more favourable provisions of, inter alia, ‘bilateral agreements … between the Community or the Community and its Member States, on the one hand, and third countries, on the other’. Such bilateral agreements obviously include the Association Agreement and Decision No 1/80. If the provisions of the latter are more favourable, they will in any event prevail. See also my Opinion in Pehlivan, C‑484/07, EU:C:2010:410, point 65.

108 See judgments of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, and of 29 March 2017, Tekdemir, C‑652/15, EU:C:2017:239.

109 Judgment of 29 April 2010, Commission v Netherlands, C‑92/07, EU:C:2010:228, paragraph 62 and the case-law cited. See also judgment of 26 May 2011, Akdas and Others, C‑485/07, EU:C:2011:346, paragraph 59, in the particular context of social benefits for Turkish workers.

111 Judgments of 18 July 2007, Derin, C‑325/05, EU:C:2007:442, paragraph 68, and of 16 June 2011, Pehlivan, C‑484/07, EU:C:2011:395, paragraph 65. For a more detailed analysis of the line of reasoning in Derin, see my Opinion in Bozkurt, C‑303/08, EU:C:2010:413, point 50.

112 Judgment of 17 September 2009, Sahin, C‑242/06, EU:C:2009:554, paragraph 67 et seq. That approach was confirmed in judgment of 29 April 2010, Commission v Netherlands, C‑92/07, EU:C:2010:228, paragraph 55 et seq.

113 See, to that effect, judgment of 29 April 2010, Commission v Netherlands, C‑92/07, EU:C:2010:228, paragraph 57 and the case-law cited.

114 Judgment of 29 April 2010, Commission v Netherlands, C‑92/07, EU:C:2010:228, paragraph 55 and the case-law cited.

115 Judgment of 29 April 2010, Commission v Netherlands, C‑92/07, EU:C:2010:228, paragraph 75.

116 Annex I to Regulation No 539/2001 lists the countries whose nationals are required to be in possession of a visa when crossing the external borders of the Member States. That list includes Turkey.

The reference in Article 5(2) of Directive 2004/38 to national law aims to cover the situation of Member States which do not apply that regulation. See Amended proposal for a Directive of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (presented by the Commission pursuant to Article 250(2) of the EC Treaty) COM(2003) 199 final.

117 I refer here to Directive 2004/38 merely in order to test the position under Article 59 of the Additional Protocol.

118 See, to that effect, judgment of 29 April 2010, Commission v Netherlands, C‑92/07, EU:C:2010:228, paragraph 71.

120 See, inter alia, judgment of 11 January 2007, Lyyski, C‑40/05, EU:C:2007:10, paragraph 38.

121 See, to that effect, judgment of 11 November 2004, Cetinkaya, C‑467/02, EU:C:2004:708, paragraphs 42 to 48.

122 See judgment of 10 July 2014, Dogan, C‑138/13, EU:C:2014:2066, paragraph 37, in the context of freedom of establishment. That case followed the reasoning set out in judgment of 7 November 2013, Demir, C‑225/12, EU:C:2013:725, paragraph 40 et seq., concerning admission to the territory of a Member State of a Turkish national intending to take up paid employment. See also judgment of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraph 57.

123 Judgment of 7 November 2013, Demir, C‑225/12, EU:C:2013:725, paragraph 41.

124 Judgment of 10 July 2014, Dogan, C‑138/13, EU:C:2014:2066, paragraph 38. Whilst the Court did not expressly recognise that ground of justification, it proceeded ‘on the assumption’ that the prevention of forced marriages could constitute an overriding reason in the general interest.

126 Judgment of 29 March 2017, Tekdemir, C‑652/15, EU:C:2017:239, paragraph 39.

127 Opinion of Advocate General Mengozzi in Genc, C‑561/14, EU:C:2016:28, point 34.

128 Judgment of 29 March 2017, Tekdemir, C‑652/15, EU:C:2017:239, paragraphs 35 to 39.

129 In Tekdemir and in Genc the national rules at issue permitted no exceptions and the Court had the necessary material to rule that those measures were disproportionate. Here, on the other hand, the national rules do provide for an exception in appropriate circumstances. Only the national Court will have the necessary material to review the legality of the competent authorities’ decision. See judgment of 11 January 2007, Lyyski, C‑40/05, EU:C:2007:10, paragraph 48.

130 Judgment of 10 July 2014, Dogan, C‑138/13, EU:C:2014:2066, paragraph 37.

131 See, to that effect, judgment of 29 March 2017, Tekdemir, C‑652/15, EU:C:2017:239, paragraph 41.

132 See, to that effect, in relation to the requirement to hold a residence permit, judgment of 29 March 2017, Tekdemir, C‑652/15, EU:C:2017:239, paragraphs 42 and 43.

133 On the facts, Mrs Yön’s situation is significantly different from that of the applicant in Tekdemir. Furkan Tekdemir was an infant, born in Germany a bare month before the application for a residence permit was lodged on his behalf. He was legally resident there with his father, who was a Turkish worker (see judgment of 29 March 2017, Tekdemir, C‑652/15, EU:C:2017:239). By contrast, Mrs Yön resided in Turkey (so far as is here relevant) between the date of her marriage to Mr Yön (2004) and when she entered the Netherlands with a Schengen visa issued by that Member State (March 2013).

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Yon (EEC-Turkey Association Agreement - Opinion) [2018] EUECJ C-123/17_O (19 April 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/C12317_O.html Cite as: [2018] EUECJ C-123/17_O, ECLI:EU:C:2018:267, EU:C:2018:267

Court of Justice of the European Communities (including Court of First Instance Decisions)