EN v Udlændingenævnet (C-375/23)

Contents

Judgment of the Court (Seventh Chamber)4 July 2024^note(Reference for a preliminary ruling — EEC-Turkey Association Agreement — Decision No 1/80 — Article 13 — Standstill clause — Scope — Concept of new restriction — National legislation introducing more restrictive conditions for obtaining a permanent residence permit)In Case C‑375/23 [Meislev],^noteREQUEST for a preliminary ruling under Article 267 TFEU from the Højesteret (Supreme Court, Denmark), made by decision of 6 June 2023, received at the Court on 13 June 2023, in the proceedingsENvUdlændingenævnet,THE COURT (Seventh Chamber),composed of F. Biltgen (Rapporteur), President of the Chamber, N. Wahl and J. Passer, Judges,Advocate General: N. Emiliou,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– EN, by C. Friis Bach Ryhl and T. Ryhl, advokater,– the Danish Government, by J.F. Kronborg and C. Maertens, acting as Agents, and by R. Holdgaard, advokat,– the European Commission, by O. Glinicka, B.‑R. Killmann and C. Vang, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This reference for a preliminary ruling concerns the interpretation of Article 13 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association between the European Economic Community and Turkey (‘Decision No 1/80’).

2The request has been made in proceedings between EN, a Turkish national, and the Udlændingenævnet (Immigration Appeals Board, Denmark) concerning that board’s rejection of EN’s application for a permanent residence permit in Denmark.

Legal context

European Union law

The Association Agreement

3It is apparent from Article 2 of the Agreement establishing an Association between the European Economic Community and Turkey, signed on 12 September 1963 in Ankara by the Republic of Türkiye, on the one hand, and by the Member States of the European Economic Community and the Community, on the other, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113, p. 1) (‘the Association Agreement’), that the aim of that agreement is to promote the continuous and balanced strengthening of trade and economic relations between the contracting parties, while taking full account of the need to ensure an accelerated development of the Republic of Türkiye’s economy and to improve the level of employment and the living conditions of Turkish people.

4To that effect, the Association Agreement involves a preparatory stage enabling the Republic of Türkiye to strengthen its economy with aid from the Community (Article 3), a transitional stage, during which the contracting parties establish progressively a customs union and align their economic policies more closely (Article 4), and a final stage based on the customs union and which entails closer coordination of the economic policies of the contracting parties (Article 5).

5Article 6 of the Association Agreement provides:‘To ensure the implementation and the progressive development of the Association, the Contracting Parties shall meet in a Council of Association which shall act within the powers conferred upon it by this [Association] Agreement.’

6Article 8 of the Association Agreement, included in Title II thereof, entitled ‘Implementation of the transitional stage’, provides:‘In order to attain the objectives set out in Article 4, the Council of Association shall, before the beginning of the transitional stage and in accordance with the procedure laid down in Article 1 of the Provisional Protocol, determine the conditions, rules and timetables for the implementation of the provisions relating to the fields covered by the [EC Treaty] which must be considered; this shall apply in particular to such of those fields as are mentioned under this Title and to any protective clause which may prove appropriate.’

7Article 9 of the Association Agreement is worded as follows:‘The Contracting Parties recognise that within the scope of this [Association] Agreement and without prejudice to any special provisions which may be laid down pursuant to Article 8, any discrimination on grounds of nationality shall be prohibited in accordance with the principle laid down in Article 7 of the [EC Treaty].’

8Article 12 of the Association Agreement, which is set out in Chapter 3, entitled ‘Other economic provisions’, of Title II of that agreement, states:‘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.’

The Additional Protocol

9The Additional Protocol, signed on 23 November 1970 in Brussels and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1977 L 361, p. 59) (‘the Additional Protocol’) and which, according to Article 62 thereof, forms an integral part of the Association Agreement, lays down, in Article 1, ‘the conditions, arrangements and timetables for implementing the transitional stage referred to in Article 4 [of that agreement]’.

10The Additional Protocol includes Title II, entitled ‘Movement of persons and services’, Chapter I of which concerns ‘workers’ and Chapter II of which is entitled ‘Right of establishment, services and transport’.

11Article 41 of the Additional Protocol, which is set out in Chapter II, is worded as follows:1. The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.2. The Council of Association shall, in accordance with the principles set out in Articles 13 and 14 of the Agreement of Association, determine the timetable and rules for the progressive abolition by the Contracting Parties, between themselves, of restrictions on freedom of establishment and on freedom to provide services.…’

Decision No 1/80

12According to the third recital of Decision No 1/80, that decision is designed to improve, in the social field, the treatment accorded to Turkish workers and members of their families in relation to the arrangements introduced by Decision No 2/76 of the Association Council of 20 September 1976.

13Chapter II of Decision No 1/80, entitled ‘Social provisions’, contains Section 1, entitled ‘Questions relating to employment and the free movement of workers’, which includes Articles 6 to 16 of that decision.

14Article 6 of Decision No 1/80 provides:1.Subject to Article 7 on free access to employment for members of his [or her] family, a Turkish worker duly registered as belonging to the labour force of a Member State:– shall be entitled in that Member State, after one year’s legal employment, to the renewal of his [or her] permit to work for the same employer, if a job is available;– shall be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of Member States of the Community, to respond to another offer of employment, with an employer of his [or her] choice, made under normal conditions and registered with the employment services of that State, for the same occupation;– shall enjoy free access in that Member State to any paid employment of his [or her] choice, after four years of legal employment.…3. The procedures for applying paragraphs 1 and 2 shall be those established under national rules.’

15Article 13 of Decision No 1/80 states:‘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.’

16In accordance with Article 16 of Decision No 1/80, the provisions of Section 1 of Chapter II thereof are applicable from 1 December 1980.

Danish law

17Paragraph 11 of the udlændingeloven (Law on Foreign Nationals), in the version applicable to the facts in the main proceedings and resulting from Consolidated Law No 412 of 9 May 2016 and subsequent amendments thereof (‘the Law on Foreign Nationals’), was worded as follows:1. A residence permit in accordance with Paragraphs 7 to 9 f, 9 i to 9 n or 9 p is granted with the possibility of residence for an indefinite period or with a view to temporary residence in Denmark. The residence permit may be limited in time.…3.Unless there are grounds for revoking the residence permit pursuant to Paragraph 19, a foreign national aged 18 or over may apply for and obtain a permanent residence permit on the following conditions:(1) Subject to subparagraph 7, the foreign national must legally have resided in Denmark for at least six years, except in the cases provided for under subparagraphs 5 and 6, and must, throughout that period, have held a residence permit, issued pursuant to Paragraphs 7 to 9 f, 9 i to 9 n or 9 p ……(8) The foreign national must have been in full-time paid employment or self-employed (see subparagraph 8) for at least two years and six months during the three years preceding the issuing of a permanent residence permit.…5. Unless there are grounds for revoking the residence permit pursuant to Paragraph 19, a permanent residence permit may be issued at the request of a foreign national aged 18 or over who has legally resided in Denmark for at least four years and has, throughout that period, held a residence permit, issued pursuant to Paragraphs 7 to 9 f, 9 i to 9 n or 9 p, if he or she meets the conditions set out in subparagraph 3(2) to (9) and subparagraph 4. ……16. Even if the conditions set out in subparagraph 3(4) to (9) or subparagraph 4(1) to (4) are not met, a permanent residence permit may be issued to a foreign national aged 18 years or over if it cannot be required that these conditions are met in accordance with the international obligations of Denmark, including the [United Nations Convention on the Rights of Persons with Disabilities, approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009 (OJ 2010 L 23, p. 35)].’

The dispute in the main proceedings and the questions referred for a preliminary ruling

18On 24 May 2013, the applicant in the main proceedings, a Turkish national, was issued with a temporary residence permit in Denmark on the basis of his marriage to a Danish national residing in Denmark. By decision of the Udlændingestyrelsen (Immigration Office, Denmark) of 15 October 2020, that permit was extended until 15 October 2026.

19On 27 March 2017, the applicant in the main proceedings, who had worker status in Denmark and, on that basis, fell within the scope of the Association Agreement and Decision No 1/80, submitted an application to the Immigration Office for a permanent residence permit in Denmark.

20By decision of 10 November 2017, the Immigration Office rejected that application on the ground that the applicant in the main proceedings did not meet the condition of legal residence in Denmark for a continuous period of at least six years, as set out in Paragraph 11(3)(1) of the Law on Foreign Nationals, or the specific conditions laid down in Paragraph 11(5) thereof for obtaining a permanent residence permit after four years of legal residence in Denmark.

21On 14 November 2017, the applicant in the main proceedings appealed that decision before the Immigration Appeals Board. By decision of 18 July 2018, the Immigration Appeals Board confirmed the decision of the Immigration Office on the ground that the applicant in the main proceedings did not meet the conditions laid down by the Law on Foreign Nationals.

22On 15 October 2018, the applicant in the main proceedings brought an action for annulment of that decision before the Københavns byret (District Court, Copenhagen, Denmark).

23By order of 31 March 2020, that court referred the case to the Østre Landsret (High Court of Eastern Denmark, Denmark), which, by decision of 2 February 2022, upheld the Immigration Appeals Board’s claim that that action should be dismissed.

24On 1 March 2022, the applicant in the main proceedings brought an appeal against that decision before the Højesteret (Supreme Court, Denmark), which is the referring court.

25The referring court notes that for a measure to be classified as a ‘new restriction’, within the meaning of Article 13 of Decision No 1/80, it must have the object or effect of making the exercise by a Turkish national of the freedom of movement for workers on national territory subject to conditions that are more restrictive than those which applied at the time when that decision entered into force in the territory of that Member State (judgment of 22 December 2022, Udlændingenævnet (Language test for foreign nationals), C‑279/21, EU:C:2022:1019, paragraph 30).

26The referring court notes that it is true that the Court of Justice has held that the principles enshrined in Articles 45 to 47 TFEU must be transposed, as far as possible, to Turkish nationals who enjoy rights under the EEC-Turkey Association (judgments of 6 June 1995, Bozkurt, C‑434/93, EU:C:1995:168, paragraphs 19 and 20, and of 8 December 2011, Ziebell, C‑371/08, EU:C:2011:809, paragraph 66). However, in the referring court’s view, the broader objective of facilitating the exercise of the fundamental and individual right to move and reside freely within the territory of Member States, which is conferred directly on Union citizens – and on which Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right 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) is based – does not apply to Decision No 1/80 (judgment of 8 December 2011, Ziebell, C‑371/08, EU:C:2011:809, paragraph 68).

27Furthermore, even though the Court of Justice has already recognised that changes in the conditions for granting residence permits come within the scope of Article 13 of Decision No 1/80 since they affect the situation of Turkish workers (judgment of 9 December 2010, Toprak and Oguz, C‑300/09 and C‑301/09, EU:C:2010:756, paragraph 44), it has not yet ruled on whether national legislation laying down stricter conditions for obtaining a permanent residence permit in a Member State than those which applied at the time when that decision entered into force in that Member State constitutes a ‘new restriction’ within the meaning of that article.

28Should that be the case, the referring court is uncertain whether such a restriction can be justified by an overriding reason in the public interest. The Court of Justice has recognised that the objective of ensuring the successful integration of third-country nationals in the Member State concerned, referred to by the Danish authorities, may constitute an overriding reason in the public interest in the light of Decision No 1/80 (judgment of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraph 56). However, the Court has not yet had to rule on whether conditions relating to the prior period of residence and employment by a Turkish worker in the Member State concerned, which govern the issuing of a permanent residence permit, may be regarded as appropriate for ensuring that objective is achieved.

29In those circumstances, the Højesteret (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Do provisions of national law laying down conditions for obtaining a permanent residence permit in a Member State fall within the scope of the standstill clause in Article 13 of [Decision No 1/80]?(2) If they do, can making the temporal conditions for obtaining a permanent residence permit for a Member State more onerous (that is to say, making the minimum requirements laid down as regards the length of a foreign national’s prior residence and employment in the Member State more onerous) be regarded as appropriate for facilitating the successful integration of third-country nationals?’

Consideration of the questions referred

The first question

30By its first question, the referring court asks, in essence, whether Article 13 of Decision No 1/80 must be interpreted as meaning that legislation of a Member State which makes the obtaining of a permanent residence permit, by a Turkish worker legally resident in that Member State and falling within the scope of Article 6(1) of that decision, subject to stricter conditions than those which applied at the time when that decision entered into force in that Member State constitutes a ‘new restriction’, within the meaning of Article 13 of that decision.

31It follows from the wording of Article 13 that that decision lays down a standstill clause prohibiting the Member States from introducing new restrictions on access to employment for Turkish workers and members of their families legally resident and employed in their territories.

32It is apparent from settled case-law that that standstill clause prohibits generally the introduction of any new national measure which has the object or effect of making the exercise by a Turkish national of the freedom of movement for workers on national territory subject to conditions that are more restrictive than those which applied at the time when Decision No 1/80 entered into force in the Member State concerned (judgment of 9 February 2023, Staatssecretaris van Justitie en Veiligheid and Others (Withdrawal of the right of residence of a Turkish worker), C‑402/21, EU:C:2023:77, paragraph 52 and the case-law cited).

33Such a broad interpretation of the scope of the standstill clause in question is justified in the light of the objective of Decision No 1/80, which is to allow freedom of movement for workers. Both a new restriction which tightens the conditions of access to the first professional activity of a Turkish worker or members of his or her family and that which, once that worker or members of his or her family benefit from rights in the field of employment under Article 6 or Article 7 of that decision, restricts his or her access to paid employment guaranteed by those rights, are contrary to the objective of that decision to achieve the freedom of movement of those workers (judgment of 9 February 2023, Staatssecretaris van Justitie en Veiligheid and Others (Withdrawal of the right of residence of a Turkish worker), C‑402/21, EU:C:2023:77, paragraph 53).

34Thus, the Court has held that measures taken by a Member State which seek to define the criteria for the lawfulness of the Turkish nationals’ situation, by adopting or amending, inter alia, the conditions relating to the residence of those nationals in its territory, are capable of constituting new restrictions within the meaning of Article 13 of Decision No 1/80. The Court has also held that national legislation which permits the withdrawal of the right of residence of the persons concerned which they enjoy pursuant to the third indent of Article 6(1) and the second paragraph of Article 7 of Decision No 1/80 restricts their right to freedom of movement in relation to the right to freedom of movement which they enjoyed at the time of the entry into force of that decision and, accordingly, constitutes a new restriction within the meaning of Article 13 (judgment of 9 February 2023, Staatssecretaris van Justitie en Veiligheid and Others (Withdrawal of the right of residence of a Turkish worker), C‑402/21, EU:C:2023:77, paragraphs 58 and 59).

35In the present case, it is apparent from the order for reference that, since May 2013, the applicant in the main proceedings has held a temporary residence permit in Denmark, which was extended until 15 October 2026, giving him the right to work and to study in that Member State. Accordingly, the applicant in the main proceedings has the status of a worker legally residing in that Member State and falls within the scope of Article 6(1) of Decision No 1/80.

36It should be noted that that provision grants Turkish workers the right, after specified periods of legal employment, to continue working for the same employer or in the same occupation for an employer of his or her choice, or to enjoy free access to any paid employment of his or her choice. That necessarily implies the existence of a correlated right of residence, since otherwise the right of access to the labour force and the right to work as an employed person would be deprived of all effect (see, to that effect, judgments of 6 June 1995, Bozkurt, C‑434/93, EU:C:1995:168, paragraph 28, and of 2 June 2005, Dörr and Ünal, C‑136/03, EU:C:2005:340, paragraph 66 and the case-law cited).

37However, the refusal by the competent national authorities to grant, pursuant to the Law on Foreign Nationals, a right of permanent residence to Turkish workers who, like the applicant in the main proceedings, fall within the scope of Article 6(1) of Decision No 1/80 and hold a temporary residence permit in Denmark does not have the effect of preventing those workers from continuing to carry out their occupational activity and from enjoying the rights granted by that provision, in particular a right of residence in that Member State. Such a refusal does not, therefore, adversely affect the exercise, by Turkish workers who fall within the scope of that provision and who are legally residing in that Member State, of their right to freedom of movement.

38It follows that, although the Law on Foreign Nationals – which provides, inter alia, that foreign nationals over the age of 18 can obtain a permanent residence permit provided that they have legally resided in Denmark for at least six years and that they were in full-time paid employment or were self-employed for at least two years and six months during the three years preceding the issuing of that permit – tightens the conditions for obtaining a permanent residence permit as compared with those which applied on the date of entry into force of Decision No 1/80 in that Member State, that law does not constitute a ‘new restriction’, within the meaning of Article 13 of that decision. That law does not adversely affect the exercise, by Turkish nationals who fall within the scope of Article 6(1) of that decision and who are legally residing in that Member State, of their right to freedom of movement in the territory of that Member State.

39Any interpretation to the contrary would disregard the fact that Turkish workers cannot derive a right of permanent residence in a Member State from Article 13 of Decision No 1/80, read in conjunction with Article 45(3)(d) TFEU. The rules applicable under Article 45 TFEU cannot be automatically transposed to Turkish workers (see, to that effect, judgment of 6 June 1995, Bozkurt, C‑434/93, EU:C:1995:168, paragraph 41) and the standstill clause set out in Article 13 is not, in itself, capable of conferring on Turkish nationals – on the basis of EU legislation alone – a right to freedom of movement for workers or, as a corollary, a right of residence (see, by analogy, judgments of 20 September 2007, Tum and Dari, C‑16/05, EU:C:2007:530, paragraph 52, and of 24 September 2013, Demirkan, C‑221/11, EU:C:2013:583, paragraph 54).

40Consequently, the answer to the first question is that Article 13 of Decision No 1/80 must be interpreted as meaning that legislation of a Member State which makes the obtaining of a permanent residence permit, by a Turkish worker legally resident in that Member State and falling within the scope of Article 6(1) of that decision, subject to stricter conditions than those which applied at the time when that decision entered into force in that Member State does not constitute a ‘new restriction’, within the meaning of Article 13 of that decision, since it does not adversely affect the exercise, by Turkish nationals legally residing in that Member State, of their right to freedom of movement in the territory of that Member State.

The second question

41In view of the answer given to the first question, there is no need to answer the second question, since that question is raised by the referring court only in the event that the answer to the first question is in the affirmative.

Costs

42Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.

Operative part

On those grounds, the Court (Seventh Chamber) hereby rules: Article 13 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association between the European Economic Community and Turkeymust be interpreted as meaning that legislation of a Member State which makes the obtaining of a permanent residence permit, by a Turkish worker legally resident in that Member State and falling within the scope of Article 6(1) of that decision, subject to stricter conditions than those which applied at the time when that decision entered into force in that Member State does not constitute a ‘new restriction’, within the meaning of Article 13 of that decision, since it does not adversely affect the exercise, by Turkish nationals legally residing in that Member State, of their right to freedom of movement in the territory of that Member State.