Dogan (Advocate General's Opinion) [2014] EUECJ C-138/13

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(EEC-Turkey Association Agreement - Additional Protocol - Article 41(1) - National legislation amending the conditions for entry into the national territory for the purposes of family reunification of the spouse of a Turkish national having exercised the freedom of establishment - Directive 2003/86/EC - Article 7(2) - National legislation requiring proof of basic knowledge of the language for the spouse wishing to enter the national territory for the purposes of family reunification)

1. By this request for a preliminary ruling, the national court asks the Court of Justice to interpret Article 41(1) of the Additional Protocol, signed in Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (2) (‘the Additional Protocol’), relating to the measures to be taken during the transitional stage of the association established by the Agreement between the European Economic Community and the Republic of Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey, of the one part, and by the Member States of the EEC and the Community, of the other part, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (3) (‘the Association Agreement’), and the first subparagraph of Article 7(2) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. (4) This request was made in the course of proceedings between Naime Dogan and the Federal Republic of Germany concerning the German authorities’ rejection of Mrs Dogan’s application for a visa for the purposes of family reunification.

2. The Association Agreement is intended, in accordance with Article 2(1), 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 Turkish economy and to improve the level of employment and the living conditions of the Turkish people. Under Article 13 of that agreement, ‘[t]he Contracting Parties agree to be guided by Articles [43 EC] to [46 EC] and [48 EC] for the purpose of abolishing restrictions on freedom of establishment between them’.

3. Pursuant to Article 62 thereof, the Additional Protocol forms an integral part of the Association Agreement. Article 41(1) of that protocol provides that ‘[t]he Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services’.

4. The purpose of Directive 2003/86, according to Article 1, is ‘to determine the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of the Member States’. According to Article 4(1) of that directive, the Member States shall authorise the entry and residence, subject to compliance with the conditions laid down in Chapter IV of the directive, as well as in Article 16 thereof, of the members of the nuclear family, including the sponsor’s spouse.

5. Article 7 of the directive, inserted into Chapter IV entitled ‘Requirements for the exercise of the right to family reunification’, is worded as follows:

‘1. When the application for family reunification is submitted, the Member State concerned may require the person who has submitted the application to provide evidence that the sponsor has:

2. Member States may require third country nationals to comply with integration measures, in accordance with national law.

With regard to the refugees and/or family members of refugees referred to in Article 12, the integration measures referred to in the first subparagraph may only be applied once the persons concerned have been granted family reunification.’

6. Under Article 17 of Directive 2003/86, the Member States ‘shall take due account of the nature and solidity of the person’s family relationships and the duration of his residence in the Member State and of the existence of family, cultural and social ties with his/her country of origin where they reject an application, withdraw or refuse to renew a residence permit or decide to order the removal of the sponsor or members of his family’.

7. As is apparent from the decision to refer, the issuance of the visa sought by Mrs Dogan is governed by the provisions of German law on the residence, gainful employment and integration of foreign nationals in federal territory (Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet, ‘Law on the residence of foreign nationals’), recast by notice of 25 February 2008 (5) and most recently amended by Paragraph 2 of the Law of 21 January 2013. (6) Under the heading ‘Purpose of the Law and scope’, Paragraph 1(2)(1) of the Law on the residence of foreign nationals provides:

(1) whose legal status is governed by the Law on the freedom of movement of Union citizens [Gesetz über die allgemeine Freizügigkeit von Unionsbürgern], unless otherwise provided for by law, …’

‘A basic knowledge of the German language shall be the level of language skills corresponding to Level A1 of the … Common European Framework of Reference for Languages (Recommendation No R (98) 6 of the Council of Europe Committee of Ministers to the Member States of 17 March 1998 concerning modern languages).’

9. Paragraph 4 entitled ‘Residence permit requirement’ provides, in point 1 of the first subparagraph, that ‘[f]oreign nationals shall require a residence permit to enter and reside within federal territory … unless a right to reside exists under the Agreement of 12 September 1963 establishing an Association between the European Economic Community and Turkey … . Residence permits shall be granted as visas within the meaning of Paragraph 6(1)(1) and Paragraph 6(3) of this law’.

10. Under Paragraph 6(3), ‘[l]ong-term stays shall require a visa for the federal territory (national visa), which must be issued prior to entry. …’.

11. Paragraph 27(1) provides that ‘[f]or the purposes of protecting marriage and the family, as enshrined in Article 6 of the German Constitution (Grundgesetz), fixed-term residence permits may be issued and extended in order to establish or maintain, for the benefit of foreign family members, consortium vitae in a family within federal territory (family reunification)’.

12. Under the heading ‘Spouse reunification’, point 2 of the first sentence of Paragraph 30(1) provides that ‘[a] fixed-term residence permit shall be issued to the spouse of a foreign national if … the spouse is able to communicate in the German language at least at a basic level …’. Point 1 of the second sentence of Paragraph 30(1) provides that ‘[a] fixed-term residence permit may be issued notwithstanding point 2 of the first sentence if … the foreign national holds a residence permit pursuant to Paragraphs 19 to 21 of this law [residence permit for particular professional activities] and the marriage had already taken place when he/she transferred his/her centre of main interests to federal territory …’. Lastly, point 2 of the third sentence of Paragraph 30(1) provides that ‘[a] fixed-term residence permit may be issued notwithstanding point 2 of the first sentence if … the spouse is not in a position to demonstrate basic knowledge of the German language due to a physical, mental or psychological illness or disability …’.

13. The order for reference shows that point 2 of the first sentence of Paragraph 30(1) of the Law on the residence of foreign nationals was inserted by the Law implementing European Union directives on the right of residence and asylum of 19 August 2007 (Gesetz zur Umsetzung aufenthalts- und asylrechtlicher Richtlinien der Europäischen Union). (7)

14. The applicant, who is a Turkish national residing in Turkey, seeks a visa for the purposes of family reunification with her spouse, also a Turkish national, who has been living in Germany since 1998 where he manages a limited liability company in which he is the majority shareholder. Mrs Dogan’s spouse has held a residence permit since 2002, which was initially for a fixed term but which subsequently became an unlimited-term permit. Before their civil marriage in 2007, the applicant and Mr Dogan had already entered into a religious marriage before an imam, from which a total of four children were born between 1988 and 1993.

15. On 18 January 2011, the applicant applied to the German embassy in Ankara for a visa for the purposes of family reunification for herself and, initially, two of her children. For that purpose, she submitted a certificate issued by the Goethe Institut relating to a Level A 1 language test she had taken on 28 September 2010 which she had passed with the grade ‘satisfactory’ (scoring 62 out of 100). In the written part of the test, she scored 14.11 out of 25.

16. The German embassy considered that the applicant, who is illiterate, chose her multiple choice answers at random and also learned and reproduced three standard sentences by heart. Accordingly, by decision of 23 March 2011, it rejected the application on the ground that evidence of knowledge of the German language had not been provided. The applicant did not challenge that decision. Instead, on 26 July 2011, she made a new application to the same embassy for a visa for the purposes of family reunification only in relation to herself. That application was again rejected by the embassy by decision of 31 October 2011. In response to an application for reconsideration lodged by the applicant through her lawyer, on 15 November 2011 the German embassy in Ankara set aside the original decision and replaced it with a decision of 24 January 2012. The new decision also rejected the application on the ground that the applicant did not have the necessary knowledge of the language as she was illiterate.

17. The applicant lodged an action challenging the decision of 24 January 2012 before the referring court. That court decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does Article 41(1) of the [Additional Protocol] preclude a provision of national law which was introduced for the first time after the abovementioned provisions had come into force and which makes the first entry of a member of the family of a Turkish national who enjoys the legal status under Article 41(1) of th[at] … Protocol conditional on the requirement that, prior to entry, the family member can demonstrate the ability to communicate, in a basic way, in the German language?

(2) Does the first subparagraph of Article 7(2) of … Directive 2003/86 … preclude the provision of national law mentioned in Question 1?’

18. By its first question, the referring court essentially asks whether a provision of national law, adopted after the Additional Protocol came into force, which makes the admission into the Member State concerned, for the purposes of family reunification, of the spouse of a Turkish national established in that Member State conditional on proof that the spouse has a basic knowledge of the official language of said Member State, constitutes a ‘new restriction’ within the meaning of Article 41(1) of that protocol.

19. According to settled case-law, this provision lays down, clearly, precisely and unconditionally, an unequivocal ‘standstill clause’, which ‘contains an obligation … which amounts in law to a duty not to act’ (8) and ‘may be relied on before the national courts by the Turkish nationals to whom it applies to prevent the application of inconsistent rules of national law’. (9) As to its scope, the Court has held that although that clause is not in itself capable of conferring upon a Turkish national either a right of establishment or a right of residence derived directly from EU legislation, it none the less precludes a Member State from adopting any new measure having the object or effect of making the establishment, and, as a corollary, the residence of such a national in its territory subject to stricter conditions than those which applied at the time when the Additional Protocol entered into force with regard to the Member State concerned. (10) Similarly, the Court has acknowledged that even though Article 41(1) of the Additional Protocol does not confer on Turkish nationals a right of admission into a Member State − which, as EU law currently stands, remains governed by national law − it ‘must be regarded as also applicable to rules relating to the first admission of Turkish nationals into a Member State in whose territory they intend to exercise their freedom of establishment under the Association Agreement’. (11) Therefore, the clause it contains ‘does not operate in the same way as a substantive rule by rendering inapplicable the relevant substantive law it replaces, but as a quasi-procedural rule which stipulates, ratione temporis, which are the provisions of a Member State’s legislation that must be referred to for the purposes of assessing the position of a Turkish national who wishes to exercise freedom of establishment in [that] Member State’. (12) To that effect, Article 41(1) of the Additional Protocol appears to be ‘the necessary corollary to Articles 13 and 14 of the Association Agreement, and constitutes the indispensable means of achieving the gradual abolition of national obstacles to the freedom of establishment and the freedom to provide services’. (13)

20. In the present case, although it is not disputed that Mr Dogan benefits from the clause laid down in Article 41(1) of the Additional Protocol, in that he pursues an activity as a self-employed person in the European Union, the question arises as to whether that clause also applies to his spouse, who applied for a visa for the purposes of family reunification and does not seek to enter Germany in order to pursue an activity there under that provision.

21. The European Commission suggests that it does, arguing that Mrs Dogan is entitled to rely on the clause in question as a member of Mr Dogan’s family within the meaning of Article 13 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association (‘Decision No 1/80’). According to the Commission, by reason of the convergence in the interpretation of Article 41 of the Additional Protocol and Article 13 of Decision No 1/80, which lays down a similar standstill clause, (14) the Court’s reading of the latter is capable of being applied to the former. The Commission recalls that in Toprak and Oguz, (15) the Court stated that Article 13 of Decision No 1/80 applies not only to rules on the conditions of access to employment for Turkish workers, but also to rules on the right of foreign spouses in respect of family reunification.

22. The Commission’s reasoning is unconvincing. It is true that, according to the Court’s settled case-law, even though Article 13 of Decision No 1/80 and Article 41(1) of the Additional Protocol have a different scope and cannot be applied concurrently, they have the ‘same meaning’, (16) they pursue the same objective and the scope of the standstill obligation they provide for ‘extends by analogy to any new obstacle to the exercise of freedom of establishment, freedom to provide services or freedom of movement for workers which makes more stringent the conditions which exist at a given time’. (17) Indeed, it was on the very basis of this convergence of objectives that the Court held that, despite the differences in the wording of the two provisions, Article 13 of Decision No 1/80 applies not only to measures which are directly linked to access to employment, but also applies - in the same way as Article 41(1) of the Additional Protocol - to the rules on first admission and residence of Turkish workers. (18) It is also true, as is clear from its wording, that Article 13 of Decision No 1/80 applies not only to Turkish workers, but also to members of their families and that, as regards the latter, the Court stated in Abatay and Others that that decision ‘does not make the access to the territory of a Member State of family members of a Turkish worker already legally present in that state in order to join the rest of the family conditional on the exercise of paid employment’. (19)

23. None the less, as the German and Danish Governments correctly pointed out in their observations, it is apparent from Toprak and Oguz that it is only in so far as the rules on family reunification at issue in the main proceedings (20)affected the situation of Turkish workers, such as Messrs Toprak and Oguz, that those rules had to be brought within the scope of Article 13 of Decision No 1/80. (21) That position is consistent with the objective pursued by that provision and by Article 41(1) of the Additional Protocol, which is to prevent national authorities from introducing new obstacles to the exercise of, respectively, the freedom of movement for workers and the freedom of establishment and to provide services.

24. As it is, Turkish nationals such as Mrs Dogan, who have applied for admission into a Member State solely for the purposes of family reunification and not to exercise there one of the economic freedoms laid down in the Association Agreement, cannot plead an infringement of that objective so far as they are concerned.

25. Admittedly, Article 7 of Decision No 1/80 confers independent rights - subject to certain conditions - on the family members of Turkish workers duly registered as belonging to the labour force (22) in order to create conditions conducive to family reunification in the host Member State. (23) However, in the general scheme of the Association Agreement, such an aim is simply a vehicle for facilitating the attainment of the objectives of the association, namely - among others - the progressive establishment of freedom of movement for workers, freedom of establishment and freedom to provide services in accordance with Articles 12, 13 and 14 of that agreement. Thus, it cannot be concluded from reading Articles 7 and 13 of Decision No 1/80 together that the family members of a Turkish worker who have applied for admission into a Member State for the purposes of family reunification and not in order to pursue paid employment may rely on the standstill clause to preclude the application to them of rules such as those at issue in the main proceedings which are capable of preventing or, at the very least, making more difficult the acquisition by them of rights to which they may be entitled under Article 7 of Decision No 1/80.

26. That being said, at this juncture the issue to be examined is whether Mrs Dogan can rely on the standstill clause laid down in Article 41(1) of the Additional Protocol - even though she has not exercised and does not intend to exercise the economic freedoms referred to in that article - in order to preclude the application to her of a national measure capable of constituting a new restriction on the exercise of those freedoms by her spouse.

27. As a preliminary point, I recall that the Court has already had the opportunity, in Abatay and Others, to acknowledge that Turkish nationals are entitled to rely on Article 41(1) of the Additional Protocol even though they are not directly covered by that provision. This case concerned Turkish lorry drivers employed by a company established in Turkey which lawfully provided services in a Member State. The lorry drivers challenged the application to them of conditions for the exercise of their paid employment introduced by the Federal Republic of Germany after the Additional Protocol had come into force. On the basis of an analogous application of Clean Car Autoservice, (24) the Court essentially acknowledged that since the paid employees of a provider of services are indispensable to enable him to provide his services, the right of an employer established in Turkey to provide services in a Member State on the conditions laid down in Article 41(1) of the Additional Protocol necessarily entails as a corollary the right for his paid employees to perform the duties entrusted to them in the field of service provision on the same conditions. (25)

28. It is therefore necessary to establish whether the measure at issue in the main proceedings, which affects the conditions applying to family reunification, includes an indirect ‘restriction’ - as in Abatay and Others - on the freedom of establishment under Article 41(1) of the Additional Protocol. By contrast, the question whether the restriction is ‘new’ within the meaning of that provision is not under discussion.

29. First, it follows from the wording of Article 13 of the Association Agreement and from the objective of the EEC-Turkey association that the principles enshrined in Articles 52 to 56 of the EC Treaty (which became Articles 43 to 47 EC and are now Articles 49 to 53 TFEU) must be extended, so far as possible, to Turkish nationals. This principle of interpretation, which the Court initially laid down in the context of Article 12 of the Association Agreement and later confirmed in the context of Article 14 thereof, (26) also applies to Article 13 of that agreement, which contains a similar rule to the two abovementioned provisions. As I will explain in more detail below, far from being called in question by the Court in Ziebell and Demirkan, (27) that principle was expressly confirmed in the latter decision.

30. Second, it should be noted that according to the case-law, all measures which prohibit, impede or render less attractive the exercise of the freedom of establishment by EU nationals must be regarded as restrictions on that freedom, within the meaning of Article 49 TFEU. (28) In accordance with the principle set out in point 29 above, the same definition must, in my view, apply for the purposes of establishing the content and scope of the notion of ‘restriction’ referred to in Article 41(1) of the Additional Protocol. Accordingly, that provision - which freezes the rules applying, at a given point in time, to the situation of a Turkish national who wishes to exercise the freedom of establishment under the Association Agreement - precludes any worsening of his situation which may hinder, impede or render less attractive the exercise of that freedom.

31. As the Commission submits in its observations, the lack of any real prospect of family reunification for a Turkish national in the Member State where he is established or intends to establish himself in order to pursue self-employment is capable of impeding or, at the very least, rendering less attractive the exercise by him of the freedom of establishment laid down in the Association Agreement. Without that prospect, such a national might be dissuaded from settling in the European Union if the family relationship has already been formed, or be forced to interrupt his professional activity and leave the European Union if that relationship was established after his departure. In both cases, he would have to choose between his professional activity and preserving the unity of his family.

32. In this connection, I recall that both the Community legislature, in the earliest legislation applying the Treaty provisions, and the Court have acknowledged the existence of a relationship of dependence between preserving the integrity of family life and full enjoyment of the fundamental freedoms (29) in conditions which ensure respect for the liberty and dignity of migrant workers. (30) Thus, interference with the former is likely to hinder the full exercise of the latter. (31)

33. Even though no provision is made in either the Association Agreement, the Additional Protocol or the measures adopted by the Association Council for a right to family reunification, the link between the exercise of the economic freedoms laid down in that agreement and family integration means, in my opinion, that a measure by a Member State which imposes a new condition - compared to the conditions in place when the Additional Protocol came into force for that Member State - on the admission into the national territory of the spouse of a Turkish national who has exercised or wishes to exercise the freedom of establishment under the Association Agreement must fall within the scope of the standstill clause laid down in Article 41(1) of that protocol.

34. This conclusion is borne out by the objective of the standstill clause, to which the Court has referred on numerous occasions, which is to create conditions conducive to the progressive establishment of freedom of establishment between Member States and the Republic of Turkey (32) by prohibiting the introduction of any new measures having ‘the object or effect’ of making the establishment of Turkish nationals in a Member State subject to stricter conditions than those which resulted from the rules which applied to them at the time when the Additional Protocol entered into force with regard to the Member State concerned. (33) Furthermore, in view of the potential deterrent effect of measures which affect the conditions applying to family reunification, the argument put forward by the Governments of Germany and the Netherlands - that the impact of a rule such as that at issue in the main proceedings on the exercise of the freedom of establishment under the Association Agreement is too remote and hypothetical to be capable of falling within the scope of the standstill clause laid down in Article 41(1) of the Additional Protocol - cannot be accepted.

35. The recent judgments handed down by the Court in Ziebell and Demirkan, cited above, do not preclude the proposed interpretation.

36. In the first of those judgments, the Court excluded Directive 2004/38 (34) from the acquis of the Association Agreement and consequently dismissed the argument put forward by Mr Ziebell that Article 28(3)(a) of that directive, which governs the protection against expulsion enjoyed by EU nationals, should be used as a reference for the purpose of determining the meaning and scope of the exception to the right of residence on public policy grounds set out in Article 14(1) of Decision No 1/80. The Court’s conclusion was essentially based on the finding that, in contrast to the directive, which aims to ‘facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by the Treaty’, the Association Agreement ‘pursues a solely economic purpose’. (35)

37. The present case differs substantially from Ziebell. This case does not involve attributing to the association with the Republic of Turkey aims and objectives which are alien to it. Instead, it involves ensuring that the aims and objectives inherent in that association are fully attained, namely, as provided in Article 2(1) of the Association Agreement, ‘to promote the continuous and balanced strengthening of trade and economic relations between the Parties, while taking full account of the need to ensure an accelerated development of the Turkish economy and to improve the level of employment and the living conditions of the Turkish people’. The transposition to the scope of the agreement, by means of Article 13 thereof, of the notion of obstacle to the exercise of freedom of establishment as interpreted and applied by the Court, is consistent with that logic.

38. In Demirkan, cited above, the Court held that the notion of freedom to provide services referred to in Article 41(1) of the Additional Protocol could not be interpreted as encompassing the freedom for Turkish nationals who are service recipients to visit a Member State in order to obtain services. In reaching that conclusion, the Court - following the approach taken in Ziebell - found that ‘there are differences between the Association Agreement and its Additional Protocol on the one hand, and the Treaty on the other, on account, inter alia, of the link that exists between freedom to provide services and freedom of movement for persons within the European Union’ and that ‘[t]he development of economic freedoms for the purpose of bringing about freedom of movement for persons of a general nature, which may be compared to that afforded to European Union citizens under Article 21 TFEU is not the object of the Association Agreement’. (36) According to the Court, the passive freedom to provide services, which is the result of the process of establishing an internal market conceived as an area without internal borders, is closely linked to the general principle of the freedom of movement for persons which underpins the creation of that area. By contrast, ‘irrespective of whether freedom of establishment or freedom to provide services is invoked, it is only where the activity in question is the corollary of the exercise of an economic activity that the “standstill” clause [provided for in Article 41(1) of the Additional Protocol] may relate to the conditions of entry and residence of Turkish nationals within the territory of the Member States’. (37)

39. The present case does not involve transposing - in the context of the Association Agreement - a concept, such as the passive provision of services, which inherently includes the recognition of a general principle of freedom of movement for persons. Instead, it involves transposing a notion, such as the notion of obstacle to the exercise of freedom of establishment, which enables the boundaries of that freedom to be defined and is conducive, through the imposition of duties not to act on the competent authorities of the contracting parties, to the full attainment of that freedom in accordance with the objectives of the association. That process is in line with Court’s settled case-law which, as indicated above, was confirmed rather than contradicted by Demirkan. (38)

40. The German Government submits that even if the measure at issue in the main proceedings could be considered to be a restriction within the meaning of Article 41(1) of the Additional Protocol, it would nevertheless be justified by the objective of combating forced marriages. It claims that the acquisition of basic language skills before admission into the host Member State promotes the integration of spouses into the society of that State, increases the likelihood that they will develop an independent social life, while diminishing the control exercised by their in-laws, and makes it possible for them, if necessary, to approach the authorities in order to obtain protection. The German Government also points out that education is, in general terms, a deterrent, as it makes the potential victims of forced marriages less vulnerable to manipulation.

41. In Demir, (39) the Court stated that a restriction under Article 13 of Decision No 1/80 is prohibited ‘unless it falls within the restrictions referred to in Article 14 of that decision [(40)] or in so far as it is justified by an overriding reason in the public interest, is suitable to achieve the legitimate objective pursued and does not go beyond what is necessary in order to attain it’. By reason of the convergence in the interpretation of the standstill clauses provided for in Article 13 of Decision No 1/80 and Article 41(1) of the Additional Protocol, mentioned in point 22 above, the same exception applies in the context of the latter provision.

42. Even if, as the German Government claims, the objective of combating forced marriages could be relied on as an overriding reason in the public interest justifying restrictions under Article 41(1) of the Additional Protocol and the measure at issue in the main proceedings was suitable to pursue that objective, I doubt whether it would be proportionate. In my opinion, a measure is not proportionate if it is capable of indefinitely delaying family reunification in the Member State concerned and if it applies, subject to a short exhaustive list of exceptions, irrespective of any assessment of the relevant circumstances of each case. Furthermore, I do not share the German Government’s view that alternative measures, such as the obligation to participate in integration and language classes after admission into Germany, would not be as effective as acquiring language skills beforehand in order to prevent the social exclusion of victims of forced marriages. On the contrary, such an obligation would bring those persons out of their family context, thereby promoting contact between them and German society. The members of their families who exercise control over them would have no other option but to allow such contact which, in the absence of a similar obligation, could otherwise be prevented in practice, despite the person in question having a basic knowledge of the German language. In addition, regular contact with the bodies and persons responsible for organising those classes could help create conditions conducive to spontaneous requests for assistance from victims, as well as facilitate the identification and reporting to the competent authorities of situations requiring intervention.

43. In view of all of the foregoing considerations, I suggest that the Court give the following reply to the first question referred to it by the Verwaltungsgericht Berlin: Article 41(1) of the Additional Protocol must be interpreted as meaning that the prohibition contained therein, which prevents Member States from introducing any new restrictions on the freedom of establishment, also covers measures such as those at issue in the main proceedings which were introduced after that protocol came into force for the Member State concerned, and which have the object or effect of making it more difficult for the spouse of a Turkish national who has exercised the freedom of establishment under the Association Agreement to enter that Member State for the purposes of family reunification.

44. Since the second question referred is relevant only if the first question is answered in the negative, my brief examination of it set out below is on an alternative basis to cover the eventuality that the Court decides not to follow my suggested approach to the first question.

45. By its second question, the referring court essentially asks whether the first subparagraph of Article 7(2) of Directive 2003/86 must be interpreted as precluding the legislation at issue in the main proceedings, which makes the admission into Germany of the spouse of a third country national residing lawfully in that Member State conditional on proof that the spouse has a basic knowledge of the German language.

46. The first subparagraph of Article 7(2) of Directive 2003/86 provides that Member States may require the potential beneficiaries of family reunification to comply with integration measures. According to the German Government, the condition relating to basic knowledge of the German language, which pursues the twofold objective of facilitating the integration of new arrivals in Germany and combating forced marriages, is an acceptable integration measure based on that provision.

47. As a preliminary remark, I recall that the right to respect for family life within the meaning of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) is among the fundamental rights which, according to the Court’s settled case-law, are protected in EU law. That right, which is also enshrined in Article 7 of the Charter of Fundamental Rights (‘the Charter’), covers also the right to family reunification (41) and ‘results in obligations for the Member States which may be negative, when a Member State is required not to deport a person, or positive, when it is required to let a person enter and reside in its territory’. (42) Thus, even though neither the ECHR nor the Charter guarantees as a fundamental right the right of an alien to enter or to reside in a particular country, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed by those acts. (43)

48. That being said, it must be pointed out, first, that it follows from an interpretation a contrario of the first subparagraph of Article 7(2) of Directive 2003/86 that, in the case of persons who do not have refugee status or who are not members of a refugee’s family, (44) integration measures can also be imposed before admission into the Member State concerned. In the present case, since neither Mrs Dogan nor Mr Dogan has refugee status, the German authorities were entitled to require Mrs Dogan to comply, in accordance with national law, with integration measures pursuant to the first subparagraph of Article 7(2) of Directive 2003/86 before her admission into Germany.

49. Second, the precise scope of the notion of ‘integration measures’ must be clarified.

50. In that regard, I recall, as a preliminary point, that in Chakroun the Court stated, first, that in the scheme of Directive 2003/86, authorisation of family reunification is the ‘general rule’ and the provisions enabling restrictions to be placed on it must be interpreted strictly and, second, that the margin for manoeuvre which the Member States are recognised as having under such provisions must not be used by them in a manner which would undermine the objective of the directive, which is to promote family reunification, and the effectiveness thereof. (45) These interpretative criteria, established with regard to Article 7(1)(c) of Directive 2003/86, which provides that Member States may make reunification conditional on proof that the sponsor has ‘stable and regular resources which are sufficient’, must also guide the interpretation of Article 7(2) of that directive and, in general, the interpretation of all restrictions on the right to family reunification.

51. That said, the notion of ‘integration measures’ must be considered alongside the notion of ‘integration conditions’, which does not appear in Directive 2003/86 but which was undoubtedly at the forefront of the legislature’s mind. In Directive 2003/109/EC, (46) which is from the same year as Directive 2003/86 and covers a very similar field, the Council of the European Union introduced a clause (currently Article 15(3)) which entitles Member States to require third-country nationals to comply with ‘integration measures’ in order to be able to exercise the right to reside in an EU Member State other than the State where they acquired the status of long-term resident. The travaux préparatoires relating to Directive 2003/109 show that, within the Council, a number of national delegations had proposed replacing the word ‘measures’ in Article 15 with the word ‘conditions’. However, the majority of Member States were opposed to that proposal and the final wording retained the term ‘integration measures’, namely the same formulation used in Article 7(2) of Directive 2003/86. (47) By contrast, Article 5(2) of Directive 2003/109 allows Member States to make the acquisition of long-term residence status conditional on ‘integration conditions’ which, if complied with, preclude the subsequent imposition of ‘integration measures’ as provided for in Article 15. (48)

52. The notions of ‘integration measures’ and ‘integration conditions’ must therefore be regarded as being quite separate and are certainly not synonymous. However, that finding is not sufficient for the purpose of ascertaining what the real difference is between them. Although no clear indications are given in that regard in either Directive 2003/86 or Directive 2003/109, it is none the less clear that ‘integration measures’ must be regarded as less onerous than ‘integration conditions’. This is apparent from the linguistic analysis of both expressions as well as from the fact that, according to Directive 2003/109 - as indicated above - compliance with ‘integration conditions’ within the meaning of Article 5 automatically relieves long-term residents of a possible obligation to comply with ‘integration measures’ under Article 15.

53. A systematic interpretation of Article 7 of Directive 2003/86 also militates in favour of that view. Article 7(1) lists a series of conditions relating to the circumstances of the sponsor. The person who has applied for family reunification may be required to provide evidence that those conditions have been met. By contrast, no such evidence is required in respect of measures adopted under Article 7(2). If the legislature’s intention had been to make those measures subject to the same rules as those laid down in Article 7(1), it would not have been necessary to insert a new paragraph and a new section could simply have been added to the previous paragraph. In other words, the integration measures referred to in Article 7(2) cannot pursue the aim of selecting the persons who may exercise their right of reunification, as such selection is the aim of the criteria and conditions laid down in Article 7(1). On the contrary, the integration measures in Article 7(2) must essentially be intended to facilitate integration in the Member States.

54. The notion of ‘integration measures’ must also be distinguished from, and cannot be coterminous with, the notion of a ‘condition for integration’ which, in accordance with the third subparagraph of Article 4(1) of Directive 2003/86, may be imposed in certain circumstances if an application for reunification has been made in respect of a child aged over 12 years. Even though the directive does not define the scope of this ‘condition’, it is clear that, once again, we are dealing with a notion which connotes the idea of a prerequisite which must be proven by the interested party, although it differs from the prerequisites set out in Article 7(1). (49)

55. In its observations before the Court, the Kingdom of the Netherlands argues that the Dutch language version of Directive 2003/86 uses a word (‘integratievoorwaarden’) in Article 7(2) which has a different nuance from the wording used in other language versions, implying the idea of a ‘condition’ which is not found in, for example, the French (‘mesures d’intégration’), Italian (‘misure di integrazione’), German (‘Integrationsmaßnahmen’) or English (‘integration measures’) language versions. The same terminology is found in Article 5(2) of Directive 2003/109. However - and I think that this is of decisive importance - the other language versions of this provision refer not to ‘measures’ (‘maatregelen’), but to ‘conditions’. (50) In other words, the Dutch language version of Article 7(2) of Directive 2003/86 is not exactly the same as the other language versions, which seem to tend towards the idea that States may ‘promote’ integration rather than impose conditions, and appears to be, to a certain extent, isolated. In any event, even if the Dutch language version of the directive were to be regarded as compatible with the idea of the imposition of ‘conditions’ prior to the admission of those entitled to reunification, the Court has consistently held that the divergent nature of one specific language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Furthermore, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part. (51)

56. It is apparent from the foregoing that the ‘integration measures’ under the first subparagraph of Article 7(2) of Directive 2003/86 cannot be established as ‘conditions’ for family reunification. However, that conclusion does not mean that these measures, when they are intended to apply before the admission of the interested persons into the Member State concerned, can only impose straightforward ‘obligations to use best endeavours’. Indeed, the term ‘integration measures’ is sufficiently broad to encompass ‘obligations to achieve a certain result’ as well, provided that they are proportionate to the objective of integration laid down in Article 7(2) of Directive 2003/86 (52) and the effectiveness of the directive is not undermined.

57. According to the Court, Article 17 of Directive 2003/86 - which provides that, when an application for reunification is rejected, ‘Member States shall take due account of the nature and solidity of the person’s family relationships and the duration of his residence in the Member State and of the existence of family, cultural and social ties with his/her country of origin’ - requires an ‘individual examination of applications for family reunification’. (53) The fundamental purpose of such individual examination is to uphold the effectiveness of the directive so far as possible and avoid undermining its main objective, which is to enable family reunification. Therefore, Directive 2003/86 generally precludes all national legislation which makes it possible to deny the exercise of the right to family reunification based on a series of predetermined conditions, without the possibility of a case-by-case evaluation based on the specific circumstances.

58. That being the case, it must be stated that Directive 2003/86 does not contain exhaustive provision on the content of the assessment to be carried out when examining an application for reunification. Although certain principles and criteria are clearly apparent from the wording and objectives of the directive, for example the requirement to have due regard to the ‘best interests of … children’ set out in Article 5(5), the obligation to take account of the factors listed in Article 17 and, more generally, the indication in favour of the protection of family life, it is ultimately for the national courts to evaluate, on the basis of national law, the lawfulness of the decisions taken by the competent authorities, in the light of the rules and principles of EU law. (54)

59. Even though, as a general rule, it is for the national legislature to establish the detailed rules enabling an assessment to be carried out of the possible material or personal difficulties which the person concerned may encounter in order to comply with the integration measures imposed, (55) that legislature must nevertheless ensure that the objective and effectiveness of Directive 2003/86 is not undermined. National legislation which precludes the possibility of those difficulties being taken into account or assessed on a case-by-case basis in the light of all relevant circumstances is contrary to the terms of Directive 2003/86. Thus, conceding the possibility of making admission into the Member State concerned conditional on passing a test for which it is not actually possible to prepare - for example, because there is absolutely no form of support or instruction organised by that Member State in the State of residence of the interested party or because the materials are unavailable or inaccessible, particularly in terms of price - is, in practice, tantamount to making it impossible to exercise the right to reunification provided for in the directive. Likewise, legislation which does not allow account to be taken of difficulties, even of a temporary nature, relating to the health of the family member concerned or his/her personal circumstances, such as age, illiteracy, disability and level of education, would undermine the effectiveness of Directive 2003/86.

60. Even though the German legislation at issue in the main proceedings provides that a spouse may be exempted from the obligation to prove that he/she has a basic knowledge of the German language if he/she is not in a position to produce such evidence due to a physical, mental or psychological illness or disability, there is no provision in that legislation for the possibility - for the purpose of deciding on such an exemption - of taking into account any other personal circumstances of the spouse as part of an assessment carried out in the light of all of the facts of each case, or of having regard to the factors listed in Article 17 of the directive. In the present case, the actual possibility that the applicant in the main proceedings might be able to comply with the conditions imposed by German law, at least within a reasonable time, (56) is remote. It is apparent from the documents before the Court that Mrs Dogan would first have to be literate in order to be able to prove the required level of knowledge of the German language. An established case of illiteracy may - having regard to, inter alia, the interested person’s age, economic circumstances and social background - constitute an obstacle which is difficult to overcome. Making authorisation of family reunification for a spouse conditional on his/her literacy may, therefore, depending on the circumstances, be disproportionate to the objective of integration pursued by the measures adopted under Article 7(2) of Directive 2003/86 and frustrate the effectiveness of that directive.

61. To conclude, I suggest that the Court give the following reply to the second question referred: The first subparagraph of Article 7(2) of Directive 2003/86 precludes legislation of a Member State such as the legislation at issue in the main proceedings, which makes the issuance of a visa for the purposes of family reunification to the spouse of a foreign national who meets the conditions set out in Article 7(1) of that directive conditional on proof that the spouse has a basic knowledge of the language of that Member State, without providing for the possibility of exceptions based on an individual examination of the application for reunification carried out pursuant to Article 17 of that directive and taking account of the interests of minor children and all relevant circumstances of the case. Those circumstances include, inter alia, the availability in the spouse’s State of residence of the instruction and materials necessary in order to acquire the required level of language skills and the accessibility of such instruction and materials, particularly in financial terms, as well as the possible difficulties, even temporary, relating to the spouse’s health or personal circumstances, such as age, illiteracy, disability and level of education.

62. In view of all of the foregoing considerations, I suggest that the Court give the following reply to the questions referred by the Verwaltungsgericht Berlin:

Article 41(1) of the Additional Protocol, signed in Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972, relating to the measures to be taken during the transitional stage of the association established by the Agreement between the European Economic Community and the Republic of Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey, of the one part, and by the Member States of the EEC and the Community, of the other part, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, must be interpreted as meaning that the prohibition contained therein, which prevents Member States from introducing any new restrictions on the freedom of establishment, also covers measures such as those at issue in the main proceedings which were introduced after that protocol came into force for the Member State concerned, and which have the object or effect of making it more difficult for the spouse of a Turkish national who has exercised the freedom of establishment under the Association Agreement to enter that Member State for the purposes of family reunification.

The first subparagraph of Article 7(2) of Directive 2003/86/EC of 22 September 2003 on the right to family reunification precludes national legislation such as that at issue in the main proceedings, which makes the issuance of a visa for the purposes of family reunification to the spouse of a foreign national who meets the conditions set out in Article 7(1) of that directive conditional on proof that the spouse has a basic knowledge of the language of that Member State, without providing for the possibility of exceptions based on an individual examination of the application for reunification carried out pursuant to Article 17 of that directive and taking account of the interests of minor children and all relevant circumstances of the case. Those circumstances include, inter alia, the availability in the spouse’s State of residence of the instruction and materials necessary in order to acquire the required level of language skills and the accessibility of such instruction and materials, particularly in financial terms, as well as the possible difficulties, even temporary, relating to the spouse’s health or personal circumstances, such as age, illiteracy, disability and level of education.

8 - See Savas, C-37/98, EU:C:2000:224, paragraphs 46, 47, 54 and 71; Abatay and Others, C-317/01 and C-369/01, EU:C:2003:572, paragraph 58; Tum and Dari, C-16/05, EU:C:2007:530, paragraph 46; and Dereci and Others, C-256/11, EU:C:2011:734, paragraph 87.

10 - See Savas, EU:C:2000:224, paragraphs 64, 65 and 69; Abatay and Others, EU:C:2003:572, paragraphs 62, 65 and 66; Soysal and Savatli, C-228/06, EU:C:2009:101, paragraph 47; and Dereci and Others, EU:C:2011:734, paragraph 88.

14 - Article 13 of Decision No 1/80 provides: ‘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.’

18 - Sahin, C-242/06, EU:C:2009:554, paragraphs 63 to 65, and Commission v Netherlands, C-92/07, EU:C:2010:228, paragraphs 47 to 49.

20 - More specifically, this case concerned the rules applying in the Netherlands to the grant of independent residence permits to foreign nationals who had entered that Member State for the purposes of family reunification. The Kingdom of the Netherlands had reintroduced the condition that the foreign national had to have resided with his/her spouse holding a right to permanent residence for a period of three years, a period which had been reduced to one year in 1983.

21 - See, inter alia, paragraphs 41, 44, 62 and the operative part of the judgment.

22 - That article provides that ‘[t]he members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State, who have been authorised to join him … shall be be entitled - subject to the priority to be given to workers of Member States of the Community - to respond to any offer of employment after they have been legally resident for at least three years in that Member State’.

24 - Clean Car Autoservice, C-350/96, EU:C:1998:205. In this judgment, the Court stated that employers were entitled to rely on Article 48 EC, making it clear that in order to be truly effective, the right of workers to be engaged and employed without discrimination under that provision necessarily entails as a corollary the employer’s entitlement to engage them in accordance with the rules governing freedom of movement for workers.

25 - Paragraph 106 and the operative part of the judgment. See, also, the Opinion of Advocate General Mischo, EU:C:2003:274, points 201 to 204, and Soysal and Savatli, EU:C:2009:101, paragraphs 45 and 46. The Court’s approach was justified by the need to uphold the effectiveness of Article 41(1) of the Additional Protocol and to prevent restrictions which were not imposed directly on Turkish service providers, but were instead imposed on their paid employees holding the same nationality, who were entrusted with providing the services in the European Union, from frustrating that provision, thereby enabling the standstill clause laid down in Article 41(1) to be circumvented.

26 - See, to that effect, as regards Article 12 of the Association Agreement, Bozkurt, C-434/93, EU:C:1995:168, paragraphs 19 and 20; Nazli, C-340/97, EU:C:2000:77, paragraph 55; and Kurz, C-188/00, EU:C:2002:694, paragraph 30. As regards Article 14, see Abatay and Others, EU:C:2003:572, paragraph 112.

27 - Ziebell, C-371/08, EU:C:2011:809, and Demirkan, C-221/11, EU:C:2013:583. For more detail, see points 35 to 39 below.

28 - See, inter alia, CaixaBank France, C-442/02, EU:C:2004:586, paragraph 11 and the case-law cited, and Commission v France, C-389/05, EU:C:2008:411, paragraphs 55 to 56.

29 - See Article 1(1)(c) and (d) of Council Directives 64/220/EEC of 25 February 1964 (OJ, English Special Edition 1963-1964, p. 115) and 73/148/EEC of 21 May 1973 (OJ 1973 L 172, p. 14) on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services. The latter directive was repealed by Directive 2004/38/EC 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). As regards workers, see Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), replaced by Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ 2011 L 141, p. 1), which codified it.

30 - See di Leo, C-308/89, EU:C:1990:400, paragraph 13, and Baumbast and R, C-413/99, EU:C:2002:493, paragraph 50, in which the Court stated that ‘the aim of Regulation No 1612/68, namely freedom of movement for workers, requires, for such freedom to be guaranteed in compliance with the principles of liberty and dignity, the best possible conditions for the integration of the Community worker’s family in the society of the host Member State’.

31 - In Carpenter, C-60/00, EU:C:2002:434, the Court recalled that the EU legislature has recognised the importance of the objective of ensuring the protection of the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty and classified as an obstruction to the exercise of the freedom to provide services by Mr Carpenter the deportation order against his spouse, a third country national, adopted by the authorities of his Member State of origin, stating that ‘the separation of Mr and Mrs Carpenter would be detrimental to their family life and, therefore, to the conditions under which Mr Carpenter exercises a fundamental freedom’, since ‘[t]hat freedom could not be fully effective if Mr Carpenter were to be deterred from exercising it by obstacles raised in his country of origin to the entry and residence of his spouse’ (paragraph 39, my emphasis). Even though in its recent judgment in S and Minister voor Immigratie, Integratie en Asiel, C-457/12, EU:C:2014:136, the Court interpreted the conditions for the application of Carpenter narrowly (paragraphs 41 to 44), the principle that the effective exercise of the freedoms laid down in the Treaty may be hindered by measures affecting the integrity of the migrant worker’s family life was confirmed (paragraph 40).

39 - C-225/12, EU:C:2013:725, paragraph 40 and the operative part of the judgment.

40 - Article 14(1) states that the provisions of Chapter II, Section I of Decision No 1/80 are to be applied subject to limitations justified on grounds of public policy, public security or public health.

44 - With regard to refugees and members of their families, the second subparagraph of Article 7(2) provides that integration measures may only be applied once the persons concerned have been granted family reunification.

45 - C-578/08, EU:C:2010:117, paragraph 43; see also O. and Others, C-356/11 and C-357/11, EU:C:2012:776, paragraph 74.

46 - Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2003 L 16, p. 44).

47 - See, in particular, the note from the Presidency of the Council of 14 March 2003, 7393/1/03 REV 1, p. 5. The Member States which proposed using the term ‘integration conditions’ were the Federal Republic of Germany, the Kingdom of the Netherlands and the Republic of Austria.

49 - To that effect, see Parliament v Council, EU:C:2006:429, paragraphs 66 to 76.

50 - For example, the French (‘conditions d’intégration’), German (‘Integrationsanforderungen’), English (‘integration conditions’) and Italian (‘condizioni di integrazione’) language versions.

51 - See Cricket St Thomas, C-372/88, EU:C:1990:140, paragraph 18; Velvet & Steel Immobilien, C-455/05, EU:C:2007:232, paragraph 19; and Helmut Müller, C-451/08, EU:C:2010:168, paragraph 38.

52 - See the Report from the Commission to the European Parliament and the Council on the application of Directive 2003/86 (COM(2008) 610 final, section 4.3.4) and the Green Paper on the right to family reunification of third-country nationals living in the European Union (Directive 2003/86) (COM(2011) 735 final, section 2.1).

53 - Chakroun, EU:C:2010:117, paragraph 48, in which the Court held that legislation providing for a minimum income level below which all family reunifications would be refused, irrespective of an actual examination of the situation of each applicant, was contrary to the terms of Directive 2003/86.

55 - In its 2011 Green Paper, the Commission describes the problems arising from the discretion which the directive leaves to Member States as regards the application of some of its optional provisions, particularly concerning possible integration measures (part I).

56 - According to information supplied by the referring court, Mrs Dogan has spent four years trying to join her husband in Germany.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Dogan (Advocate General's Opinion) [2014] EUECJ C-138/13_O (30 April 2014) URL: http://www.bailii.org/eu/cases/EUECJ/2014/C13813_O.html Cite as: ECLI:EU:C:2014:287, [2014] EUECJ C-138/13_O, EU:C:2014:287

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