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URL: http://www.bailii.org/eu/cases/EUECJ/2013/C22512_O.html
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OPINION OF ADVOCATE GENERAL
Wahl
delivered on 11 July 2013 (1)
Case C-225/12
C. Demir
v
Staatssecretaris van Justitie
(Request for a preliminary ruling from the Raad van State (Netherlands))
(EEC-Turkey Association Agreement – Freedom of movement for workers – Standstill obligation under Article 13 of Decision No 1/80 – Scope – Legislation of a Member State requiring possession of a temporary residence permit prior to first entry into the national territory)
1. This case concerns the interpretation of Article 13 of Decision No 1/80 of the Association Council (2) set up by the EEC-Turkey Association Agreement. (3) That provision is a standstill clause which prohibits the Contracting Parties from introducing new restrictions after 1 December 1980 on the freedom of movement for workers.
2. By its request for a preliminary ruling, the Raad van State (Council of State) (Netherlands) seeks clarification regarding the precise scope of that standstill clause. In particular, the following question arises: in what circumstances may a Turkish national rely on Article 13 of Decision No 1/80?
I – Legal framework
A – EEC-Turkey Association
3. Under Article 2(1) of the Association Agreement, the aim of the agreement is to promote the continuous and balanced strengthening of trade and economic relations between the Contracting Parties by progressively securing the freedom of movement for workers and by abolishing restrictions on freedom of establishment and on freedom to provide services.
4. An Additional Protocol to the Association Agreement was signed on 23 November 1970 (‘the Additional Protocol’), (4) Article 41 of which provides:
‘1. The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.’
5. On 19 September 1980, the Association Council adopted Decision No 1/80.
6. Article 6 of Decision No 1/80 states:
‘1. Subject to Article 7 on free access to employment for members of his 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 permit to work for the same employer, if a job is available …’
7. Article 13 of that decision reads:
‘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.’
8. In accordance with Article 16, the provisions of Decision No 1/80 were to apply with effect from 1 December 1980.
B – National law
9. On 1 December 1980, the relevant date for the purposes of the standstill under Article 13 of Decision No 1/80, the admission of foreign nationals to the Netherlands and their residence there were governed by the Vreemdelingenwet 1965 (5) (Law on Foreign Nationals) (‘the Vw 1965’) and the Vreemdelingenbesluit 1966 (6) (Decree on Foreign Nationals) (‘the Vb 1966’).
10. Under Article 41(1)(c) of the Vb 1966, in the version in force on 1 December 1980, foreign nationals were required to be in possession of a valid passport and a valid temporary residence permit if they wished to stay in the Netherlands for more than three months. However, lack of a temporary residence permit was not considered a sufficient ground for refusing admission if a substantive examination disclosed that the conditions for first admission were otherwise satisfied.
11. On 1 April 2001, the Wet van 23 november 2000 tot algehele herziening van de Vreemdelingenwet (7) (Law of 23 November 2000 for the comprehensive revision of the Vreemdelingenwet) (‘the Vw 2000’) entered into force. On the same day, the Vreemdelingenbesluit 2000 (8) (‘the Vb 2000’), which was adopted pursuant to the Vw 2000, also entered into force.
12. Article 1(h) of the Vw 2000 defines a ‘temporary residence permit’ as a visa for a stay of more than three months which is applied for by the foreign national in person at a diplomatic mission or consulate of the Netherlands in the country of origin and issued by that mission or consulate after prior authorisation has been obtained from the Netherlands Minister for Foreign Affairs.
13. Under Article 8(a) of the Vw 2000, a foreign national is entitled to reside in the Netherlands if he has a fixed-term residence permit.
14. In accordance with Article 8(f) of the Vw 2000, a foreign national who has applied for a fixed-term residence permit is entitled to reside in the Netherlands pending a decision on the application, during which time that person is not to be removed from the national territory.
15. Article 16(1)(a) of the Vw 2000 states that an application for a standard fixed-term residence permit may be refused if the foreign national is not in possession of a valid temporary residence permit issued for the same purpose as that for which the fixed-term residence permit is sought.
16. Under Article 3.71(1) of the Vb 2000, an application for a fixed-term residence permit is to be refused if the foreign national concerned does not possess a valid temporary residence permit.
17. Lastly, under the Vreemdelingencirculaire 2000 (Circular on Foreign Nationals of 2000), an application for a temporary residence permit is to be examined in order to determine whether all the conditions for the grant of a residence permit are satisfied. According to that circular, the reason for the obligation to apply for a temporary residence permit before travelling to the Netherlands is to enable the national authorities of that country to determine more easily whether the foreign national concerned meets all admission requirements.
II – Facts, procedure and the questions referred
18. Mr Demir, a Turkish national, entered the Netherlands on 1 October 1990 and, after being detained on grounds of illegal residence, was removed from the national territory on 11 December 1991.
19. On 19 April 1993, Mr Demir submitted an application for a permit to reside in the Netherlands with his wife, a Netherlands national. A residence permit was issued to him for the period between 7 May and 19 September 1993. That residence permit allowed Mr Demir to take up the type of work for which no work permit was needed. Its validity was later extended until 18 July 1995. During that time, Mr Demir had jobs with various employers over a period of more than 10 months.
20. After his marriage broke down, Mr Demir applied on 3 August 1995 for a permit for continued residence. By decision of 8 July 1997 that application was refused. After an unsuccessful administrative appeal, the court action brought by Mr Demir contesting that decision was declared inadmissible by judgment of 12 March 1998.
21. Between 1998 and 2007, Mr Demir submitted further applications for a residence permit, all of which were refused by the competent national authorities.
22. The present case concerns an application which Mr Demir submitted on 13 February 2007 with a view to obtaining a standard fixed-term residence permit to enable him to accept paid employment.
23. The Staatssecretaris van justitie (Minister of Justice) (‘the Staatssecretaris’) refused Mr Demir’s application by decision of 26 April 2007 on the grounds that Mr Demir was not in possession of a valid temporary residence permit issued for the same purpose as that for which the application for a fixed-term residence permit had been submitted. Subsequently, by decision of 10 September 2007, the Staatssecretaris declared the objection lodged by Mr Demir against that decision to be unfounded.
24. Mr Demir contested the latter decision before the Rechtbank ’s-Gravenhage (District Court, The Hague), which dismissed his action by judgment of 16 June 2008. According to the Rechtbank ’s-Gravenhage, it followed from the judgment of the Court in Abatay and Others (9) that Article 13 of Decision No 1/80 could not be relied upon by Turkish nationals who had not complied with the rules of the host Member State regarding first entry and residence and who, in consequence, were not legally resident in the territory of that State. The Rechtbank ’s-Gravenhage found that Mr Demir could not rely on Article 13 of Decision No 1/80 because he had not been residing in the Netherlands legally at the time of the relevant application, that is, on 13 February 2007.
25. On 16 July 2008, Mr Demir lodged an appeal against that judgment before the referring court, which has now requested a preliminary ruling on the following questions:
‘1. Is Article 13 of Decision No 1/80 to be interpreted as meaning that it is applicable to a substantive and/or formal condition governing first admission, even if such a condition – in the present case, the possession of a temporary residence permit – has as one of its objectives the prevention of illegal entry and illegal residence prior to the submission of an application for a residence permit and, to that extent, can be regarded as a measure, within the terms of paragraph 85 of the judgment … Abatay and Others, which may be made more stringent?
2. (a) What importance is to be attached in this connection to the criterion of legal residence in Article 13 of Decision No 1/80?
(b) Is it relevant in this connection that, even under national law, the submission of an application renders residence legal so long as that application has not been refused, or is the only relevant factor the fact that residence prior to the submission of an application is regarded as being illegal under national law?’
26. Written observations have been submitted by Mr Demir, the Netherlands, German and Italian Governments as well as by the Commission, all of whom – with the exception of the Italian Government – presented oral argument at the hearing on 25 April 2013.
III – Analysis
A – Preliminary issues
27. The rationale underlying standstill clauses such as Article 13 of Decision No 1/80 and Article 41(1) of the Additional Protocol is to prohibit the tightening of particular conditions which exist at a given time. (10) Those clauses operate as ‘quasi-procedural rules’ which determine the relevant provisions ratione temporis that are to be applied in assessing the position of a Turkish national who wishes to exercise his rights under the Association Agreement. (11) In other words, a standstill clause determines, in a case such as that before the referring court, which law is applicable.
28. In the case under consideration, the gist of the matter lies in the need to reconcile two lines of authority concerning the scope of Article 13 of Decision No 1/80 and Article 41 of the Additional Protocol. More specifically, the issue is whether those standstill clauses fall to be construed in the same manner, notwithstanding certain differences in wording.
29. For a better understanding of the problematic issues which underpin this request for a preliminary ruling, I consider it helpful to chart briefly the basic tenets of the Court’s case-law relating to the standstill clauses at issue.
30. On the one hand, the Court has consistently held that each of those standstill clauses is designed to prevent national authorities from introducing new obstacles to the exercise of the freedom of movement for workers, the right of establishment and the freedom to provide services, and thereby to establish conditions conducive to the gradual achievement of those freedoms. Thus, the same objective – that of ensuring the progressive achievement of those freedoms in relation to the Contracting Parties – lies at the very heart of both provisions. (12)
31. The Court has in addition ruled that those two provisions prohibit, in the same manner, the introduction of new restrictions on the exercise of the freedom of establishment, the freedom to provide services, or the freedom of movement for workers. That prohibition covers restrictions relating to substantive and/or procedural conditions governing the first admission to the territory of a host Member State of Turkish nationals intending to make use of the economic freedoms enshrined in the Association Agreement. (13)
32. On the other hand, as the referring court observes, the Court had stated in the earlier case of Abatay and Others that, even though the scope of Article 13 of Decision No 1/80 is not limited to Turkish nationals already integrated into the employment market of a Member State – by contrast with Article 6 of Decision No 1/80 – that standstill clause can be relied upon by 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’. Accordingly, competent authorities remain ‘entitled, even after the entry into force of Decision No 1/80, to introduce more stringent measures to deal with Turkish nationals whose position is not lawful’. (14)
33. However, this would appear to be in contradiction with the Court’s subsequent case-law relating to Article 41(1) of the Additional Protocol. In that context, the Court has specifically stated that the question whether or not the Turkish national concerned is legally resident in the host Member State at the time of his application is not pertinent for the purposes of applying that standstill clause. (15)
34. At first glance, the interrelationship between the above statements seems somewhat uneasy. How should the scope of Article 13 of Decision No 1/80 be construed? In particular, what relevance should be attributed to the expression ‘legally resident’ in Article 13 when determining who may rely on that provision?
35. In the following, I will first deal with the issue of whether Article 13 of Decision No 1/80 applies to rules governing the grant of residence permits such as those under consideration here. I will then consider the significance of the criterion of legal residence for the purposes of applying that provision. In that context, I will also address the question whether, as the referring court contemplates, the Court’s dicta in Abatay and Others (16) are relevant for the interpretation of Article 13 in relation to the case before it.
B – Existence of a new restriction
36. By its first question, the referring court wishes to ascertain whether a condition, such as possession of a temporary residence permit, as laid down in the Vw 2000, constitutes a new restriction of the freedom of movement for workers, amounting to a ‘substantive and/or procedural condition governing the first admission to the territory of that Member State of Turkish nationals’ within the meaning of the Court’s case-law, as mentioned above. (17)
37. I think it does.
38. At the outset, I must emphasise that Article 13 of Decision No 1/80 does not encroach on the competence of the Member States to refuse Turkish nationals the right of entry into their territories and to take up employment there. (18) It does, however, impose limits on the way in which that competence is deployed. More specifically, the standstill obligation did not require Member States to abolish restrictions on the freedom of movement for workers which already existed on the date when the standstill clause took effect. Instead, it creates an obligation to maintain the status quo and accordingly to refrain from introducing new measures capable of hindering the gradual achievement of the objectives of the Association Agreement. (19)
39. After the judgment in Abatay and Others, the Court has also accepted that the standstill obligation under Article 13 of Decision No 1/80 extends – as does the obligation under Article 41 of the Additional Protocol – to the introduction of any new measure which has the object or effect of making the exercise of freedom of movement for workers subject to more restrictive conditions than those which applied at the time when Decision No 1/80 entered into force in relation to the Member State concerned. (20)
40. Article 13 of Decision No 1/80 applies, as a matter of principle, not only to measures directly linked to access to employment but also to rules governing first admission to the territory of a host Member State of Turkish nationals intending to make use of the freedom of movement for workers. In this respect, the Court has construed Article 13 as applying to rules governing the grant and extension of residence permits. (21) In fact, in view of the intimate link between the need to obtain a residence permit, on the one hand, and the possibility of taking up work in the host Member State, on the other, extending the scope of Article 13 of Decision No 1/80 in this manner to cover measures governing first admission seems appropriate to ensure the effectiveness of that standstill clause.
41. As regards the present case, it is apparent from the information in the order for reference that, as a consequence of the entry into force of the Vw 2000, the conditions for exercising the right to freedom of movement for workers have become more stringent.
42. Certainly, the condition of possession of a temporary residence permit existed already on 1 December 1980 (as laid down in the Vb 1966). That is the date when the standstill obligation took effect and the relevant reference date for assessing the implications of that clause for the case before the referring court.
43. However, in accordance with the case-law of the referring court, the lack of such a permit was not considered a sufficient basis for refusing admission under the Vw 1965 if the applicant satisfied the other conditions for first admission. In other words, the lack of a temporary residence permit was not cited as grounds for refusal, provided that a substantive examination of the application showed that the conditions for the grant of the residence permit applied for had otherwise been satisfied.
44. In that regard, the referring court observes that lack of a temporary residence permit did not constitute a separate and sufficient ground for refusing admission until the entry into force of the Vw 2000 on 1 April 2001. (22)
45. It emerges from the order for reference that, since 2001, third country nationals – including Turkish nationals – have been required to apply for a temporary residence permit from outside the territory of the Netherlands. Thus, possession of a temporary residence permit (obtained outside the territory of the Netherlands) now seems to constitute a necessary prerequisite for obtaining a standard fixed-term residence permit.
46. Put differently, before the entry into force of the Vw 2000, foreign nationals could apply for a standard fixed-term residence permit in the Netherlands without running the risk of automatic refusal if they did not already hold a temporary residence permit. Given that this is no longer the case and that illegal entry and illegal residence prior to the submission of an application is now sufficient grounds for refusal, it seems clear to me that national legislation such as that at issue here constitutes a new obstacle to the freedom of movement for workers within the meaning of Article 13 of Decision No 1/80. This is because, by contrast with the situation prevailing before 1 April 2001, it makes first admission to the country contingent on possession of a temporary residence permit issued outside the territory of the Netherlands. (23)
47. I therefore propose that Question 1 be answered to the effect that Article 13 of Decision No 1/80 applies to substantive and/or formal conditions governing first admission, such as the condition in the case before the referring court, relating to possession of a temporary residence permit.
C – The criterion of legal residence
1. Who may rely on Article 13 of Decision No 1/80?
48. By its second question, which is divided into two parts, the referring court seeks to ascertain what significance is to be attributed in this context to the expression ‘legally resident’ as used in Article 13 of Decision No 1/80. In other words: is Article 13 applicable only to Turkish nationals who are legally resident in the host Member State? (24)
49. That question must, in my view, be answered in the negative. In the following, I will set out the reasons why I do not believe that ‘legal residence’ can serve as a meaningful criterion for determining who may rely on Article 13.
50. At this juncture, I must emphasise that the application of Article 13 of Decision No 1/80 is not subject to the condition that the Turkish national concerned satisfy the requirements under Article 6(1) of that decision. As a consequence, the scope of the standstill clause is not restricted to Turkish nationals in paid employment. (25) Whereas Article 6 governs the conditions of actual employment, which contribute to the gradual integration of the person concerned in the host Member State, Article 13 covers national measures relating to access to employment. (26) In fact, the latter provision can also be relied upon by Turkish nationals who do not yet qualify for the rights enshrined in Article 6(1) of Decision No 1/80. (27) In this respect, Article 13 is considerably wider in scope than Article 6 and, in principle, covers a wide range of Turkish nationals.
51. Given the difference between the context in which Article 13 of Decision No 1/80 operates, as compared with Article 6 of that decision, the fact that a Turkish national such as Mr Demir does not satisfy the requirements for the specific rights under Article 6 (28) does not automatically mean that he cannot rely on Article 13.
52. The question remains, however: who may rely on Article 13 of Decision No 1/80?
53. In this respect, the Netherlands, German and Italian Governments contend that Article 13 of Decision No 1/80 cannot be relied upon by Turkish nationals – such as Mr Demir – who are in an unlawful situation. Accordingly, that standstill clause can be relied on only by Turkish nationals who have respected the national rules with regard to entry and residence.
54. According to the German Government, Article 13 of Decision No 1/80 should be distinguished from Article 41(1) of the Additional Protocol, which entered into force significantly earlier than Decision No 1/80. Whereas Article 41(1) prohibits new restrictions in the area of establishment and services in a general way, Article 13 specifically refers to legally resident workers and members of their families. In the view of the German Government, the wording of those provisions is different for a reason: that difference reflects the will of the Contracting Parties clearly to limit the ambit of Article 13 of Decision No 1/80 in relation to the freedom of movement for workers as compared with that of the standstill under Article 41(1), which applies to establishment and services.
55. It is true that, according to the line of authority devolving from Abatay and Others, Article 13 can be relied upon by Turkish nationals only in so far as they have complied with the rules of the host Member State as to first entry, residence and, where appropriate, employment, with the result that the person concerned is lawfully present in the territory of that State. (29)
56. Moreover, I acknowledge that, whereas Article 41(1) of the Additional Protocol does not require the Turkish nationals concerned to be legally present – or indeed present (30) – in the host Member State in order to be able to rely on the standstill under that provision, Article 13 expressly contains such a criterion. (31) In view of that criterion and of the fact that taking up work in the host Member State necessarily presupposes presence there, it is not surprising that the Court has consistently referred to the criterion of legal residence in that context and held that Turkish nationals can rely on that provision only in so far as they are lawfully present in the host Member State. More recently, the Court has reiterated that dictum in Sahin. (32)
57. Nonetheless, I believe that particular emphasis must be placed on the specific circumstances of that latter case. In fact, the claimant already resided in the host Member State at the time when the contested national legislation entered into force. The claimant had entered the territory of the host Member State legally and had complied with the relevant national rules governing the grant of residence permits before the contested national legislation – which tightened certain conditions pertaining thereto – entered into force. (33) In those circumstances, the Court did not have to address explicitly the issue of legal residence in relation to Turkish nationals who wish to enter the host Member State after the entry into force of such legislation.
58. In fact, limiting the scope ratione personae of Article 13 of Decision No 1/80 to Turkish nationals who are residing lawfully in the host Member State at the date when the contested national legislation enters into force – or indeed on the date of the application for a residence permit, as suggested by the German and Netherlands Governments in the present case – would in my view deprive that standstill clause of its effectiveness.
59. To illustrate this, let us imagine that Member State X enacts new legislation which enters into force on 1 February 1981 and which, as compared with the legislation in force on 1 December 1980, tightens the rules governing the conditions for granting and extending residence permits. On the basis of the interpretation proposed by the governments which have submitted observations in the present proceedings, only Turkish nationals already residing lawfully in Member State X on 1 February 1981 could rely on Article 13 of Decision No 1/80. Accordingly, those arriving after 1 February 1981 would need to comply with the new conditions before being able to rely on that provision.
60. Moreover, let us imagine that Member State X introduces additional measures, this time on 1 July 1982. These new rules further tighten the conditions for granting and extending residence permits prevailing on 1 December 1980. Again, only Turkish nationals who on 1 July 1982 reside lawfully in Member State X may rely on Article 13. Those arriving after 1 July 1982 would need to comply with the more stringent rules as regards entry and residence before being able to rely on Article 13.
61. As is evident from this example, construing narrowly the scope of Article 13 of Decision No 1/80 would in practice enable Member States gradually to tighten rules that ought not to be made more stringent and, consequently, to circumvent the standstill obligation. Indeed, that obligation amounts to a duty, towards those Turkish nationals who can rely on Article 13, not to act. (34) Given that the aim of the standstill clause is to ensure that the scope of the freedom of movement for workers is gradually extended vis-à-vis Turkish nationals, the situation described above is precisely the kind of situation that that clause is intended to preclude.
62. I therefore consider that, to ensure its effectiveness, Article 13 of Decision No 1/80 must apply in equal measure to Turkish nationals who wish to enter the host Member State for the first time after the entry into force of the contested legislation. Any other interpretation would run counter to the very raison d’être of the standstill clause, which is to ensure that Member States comply with their obligations under the Association Agreement.
2. The criterion of legal residence is not relevant in this context
63. The Court’s dicta in Abatay and Others occupy a central role in the order for reference. (35) Specifically, the referring court is unsure whether that judgment has any impact on the interpretation of Article 13 of Decision No 1/80 in the present case.
64. I do not think it does.
65. Above, I have tried to illustrate why I believe that the standstill clause at issue ought to apply in equal measure to Turkish nationals who enter the host Member State for the first time after the entry into force of the contested national legislation. Admittedly, that standpoint does not automatically render the criterion of legal residence inoperative and it could, in principle, be reconciled with Abatay and Others, given that the legislation at issue in that case concerned exceptions to work permit requirements and not rules governing first admission. However, this would only be conceivable if conditions governing first admission and, more specifically, the grant of residence permits, did not fall within the material scope of Article 13.
66. Indeed, as I mentioned in point 31 above, the Court has expressly recognised the extended scope of Article 13 of Decision No 1/80 since Abatay and Others. It is now accepted that that provision does not only cover ‘conditions of access to employment’ in the strict sense, but also – similarly to Article 41(1) of the Additional Protocol – new restrictions relating to substantive and/or procedural conditions governing first admission to the territory of the Member State concerned. That being so, the objections made by the German Government, as regards the deliberate delimitation of the ambit of Article 13 of Decision No 1/80 by the Contracting Parties, seem difficult to reconcile with the case-law.
67. In that respect, the case before the referring court provides a helpful illustration of why it is not tenable to attach any significance to the criterion of ‘legal residence’ in determining who may rely on Article 13 of Decision No 1/80 in circumstances such as those at issue.
68. In the case before the referring court, that standstill clause imposes an obligation on the competent authorities to refrain from applying the Vw 2000 – and, in particular, the condition of possession of a temporary residence permit – in relation to Turkish nationals who are in a position to rely on Article 13 of Decision No 1/80. In other words, despite the new legislation, their application for a residence permit ought to be examined on the same substantive terms as under the rules prevailing before 1 April 2001.
69. However, as the referring court observes, the lack of a temporary residence permit has had the effect of making entry and residence of a Turkish national in the Netherlands illegal both on and after 1 December 1980, as well as on and after 1 April 2001. Even though unlawful entry to the Netherlands did not provide a sufficient basis for refusing an application for a residence permit if the applicant otherwise satisfied the conditions for the grant of such a permit, this did not alter the illegal status of a Turkish national with regard to the rules governing first admission into the territory of the host Member State.
70. To clarify, let us imagine that a Turkish national, Mr Y, enters the territory of the Netherlands intending to take up work in 2013. I have already explained why I consider that Article 13 of Decision No 1/80 ought to apply to Turkish nationals who enter the territory of the host Member State after the entry into force of the national legislation falling within the material scope of that provision. Accordingly, Mr Y should be able to rely on Article 13 in relation to the rules at issue in the main proceedings. Put plainly, his application for a residence permit should be examined on the basis of the rules in force on 1 December 1980 – or if those rules had been relaxed after that date, in accordance with the most favourable rules in force after that date (36) – notwithstanding the lack of a temporary residence permit. However, if the criterion of legal residence were attributed any importance in this context and if Mr Y were not in possession of a temporary residence permit when he entered the Netherlands, he would not be able to rely on the standstill under Article 13 against the Vw 2000. This is because, just like Mr Demir, he would be in a formally unlawful position under both the old and the new rules.
71. Clearly, attributing any significance to the criterion of ‘legal residence’ in such circumstances would render the standstill obligation in Article 13 meaningless. To the extent that national legislation, such as the Vw 2000, governs first admission and the grant of a residence permit in the host Member State, and consequently impacts on the possibility of obtaining a right of residence there, I do not see how ‘legal residence’ could offer a helpful criterion for determining the scope of Article 13 of Decision No 1/80. (37)
72. Finally, I consider it appropriate to address briefly the Court’s dictum in paragraph 85 of Abatay and Others, which expressly accepts as permissible the introduction of more stringent measures in relation to Turkish nationals whose position is not lawful.
73. I would observe that Article 13 of Decision No 1/80 does not confer positive rights on Turkish nationals (such as a right of entry or residence), but determines, instead, the applicable legislation ratione temporis, on the basis of which the position of the person concerned is to be examined. Indeed, as was explained in point 38 above, Article 13 does not restrict the competence of Member States to refuse third-country nationals, including Turkish nationals, entry into their territories. However, in accordance with the standstill obligation under Article 13, such a refusal in relation to Turkish nationals must be based on the most favourable rules in force since that provision took effect.
74. Accordingly, should a Turkish national choose to remain in the territory of that State after a decision of refusal was taken on the basis of those rules and in conformity with the EU legislation applicable in the relevant field, that person is undoubtedly in an unlawful position in the host Member State. In such circumstances, Member States remain entitled to decide on the consequences of such an illegal presence on their territory, provided that – and I must emphasise this point – the rules operating against such individuals are not covered by Article 13.
75. Having regard to the above considerations, I take the view that Question 2(a) should be answered to the effect that, in circumstances such as those of the case before the referring court, the criterion of legal residence in Article 13 of Decision No 1/80 is not relevant for determining whether or not a Turkish national may rely on that provision.
76. Lastly, should the Court answer Questions 1 and 2(a) as I have suggested, there will be no need to reply to Question 2(b). However, for the sake of completeness, should the Court wish to deal with that question, I will add the following observations.
77. I have already come to the conclusion that the criterion of ‘legal residence’ ought not to be attributed any importance in determining whether or not a Turkish national may rely on the standstill under Article 13. The fact that, under national law, the submission of an application renders residence legal for the duration of the application procedure cannot in my view affect that conclusion. While attaching some importance to this rule would certainly breathe life into the criterion of legal residence, it would result in an artificial construction.
78. Drawing from the Court’s reasoning in relation to Article 6 of Decision No 1/80, Turkish nationals cannot be considered to fulfil the criterion of legal residence where a right of residence has been conferred on them solely on the basis of national legislation permitting residence in the host Member State pending completion of the procedure for issuing a residence permit. (38) As the Netherlands Government observes, affording an applicant a temporary right of residence is simply designed to ensure that the situation of the person concerned is not excessively impaired during the procedure and, in particular, that foreign nationals are not removed from the national territory before a definitive decision has been taken. Aside from the suspensory effect of a pending application, the application of such national provisions does not result in an undisputed and stable right of residence within the meaning of the case-law referred to above.
IV – Conclusion
79. In light of the foregoing considerations, I propose that the Court answer the questions raised by the Raad van State (Netherlands) as follows:
(1) Article 13 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association applies to substantive and/or formal conditions under national law governing first admission, such as the condition in the case before the referring court, relating to possession of a temporary residence permit.
(2) In circumstances such as those of the case before the referring court, the criterion of legal residence in Article 13 of Decision No 1/80 is not relevant for determining whether or not a Turkish national may rely on that provision.
1 – Original language: English.
2 – Decision of the Association Council of 19 September 1980 on the development of the Association (‘Decision No 1/80’).
3 – On 12 September 1963, an agreement was signed which established an association between the European Economic Community and the Republic of Turkey. This agreement was concluded, approved and confirmed on behalf of the Community by the Council of the European Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113, p. 1) (‘the Association Agreement’).
4 – The Additional Protocol was signed at 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 (OJ 1977 L 361, p. 60).
5 – Staatsblad 1965, No 40.
6 – Staatsblad 1966, No 387.
7 – Staatsblad 2000, No 495.
8 – Staatsblad 2000, No 497.
9 – Joined Cases C-317/01 and C-369/01 [2003] ECR I-12301.
10 – Joined Cases C-300/09 and C-301/09 Toprak and Oguz [2010] ECR I-12845, paragraphs 53 and 54.
11 – Case C-16/05 Tum and Dari [2007] ECR I-7415, paragraph 55.
12 – Toprak and Oguz, paragraphs 52 to 54 and case-law cited.
13 – In relation to Article 13, see Case C-242/06 Sahin [2009] ECR I-8465, paragraphs 63 to 65, and Case C-92/07 Commission v Netherlands [2010] ECR I-3683, paragraphs 47 to 49. With regard to Article 41(1), see Tum and Dari, paragraph 69, and Case C-228/06 Soysal and Savatli [2009] ECR I-1031, paragraphs 47 and 49.
14 – Abatay and Others, paragraphs 84 and 85.
15 – Tum and Dari, paragraph 59, and Case C-186/10 Oguz [2011] ECR I-6957, paragraph 33.
16 – See point 32 above.
17 – See, in particular, Sahin, paragraphs 64 to 66, and Commission v Netherlands, paragraphs 48 and 49.
18 – See, inter alia, Abatay and Others, paragraph 80, and Case C-187/10 Unal [2011] ECR I-9045, paragraph 41.
19 – I should add that Article 13 also precludes the tightening of provisions, introduced after the date when the standstill clause took effect, which relax the rules applicable on that date. See Toprak and Oguz, paragraph 62.
20 – Sahin, paragraph 63. See also Case C-256/11 Dereci and Others [2011] ECR I-0000, paragraph 94, and Toprak and Oguz, paragraph 54.
21 – Sahin, paragraphs 64 and 65; Commission v Netherlands, paragraph 50; and Toprak and Oguz, paragraph 44.
22 – The Court has held that Article 13 of Decision No 1/80 may apply not only to provisions in laws or regulations but also to provisions in a circular which specifies the manner in which the government concerned intends to apply the law. See, in this respect, Toprak and Oguz, paragraph 31. On that point, I do not see any reason why that provision should not apply to legislation such as that at issue in the main proceedings, given that, under rules applicable on 1 December 1980, no specific requirement concerning possession of a temporary residence permit was applied by the competent national authorities.
23 – This conclusion cannot be affected, as the referring court seems to suggest, by the objective of the Vw 2000 of preventing illegal residence.
24 – It is useful to note that Article 13 has direct effect. See Case C-192/89 Sevince [1990] ECR I-3461, paragraph 26.
25 – Sahin, paragraph 50 and case-law cited.
26 – Ibid., paragraph 51.
27 – Ibid., paragraph 51. See also Toprak and Oguz, paragraph 45.
28 – See point 19 above.
29 – Abatay and Others, paragraph 84.
30 – See Abatay and Others, paragraph 105, and Tumi and Dari, paragraph 59.
31 – I note in this context that, as an international treaty, the EEC-Turkey Association Agreement and the instruments based thereon, such as the Additional Protocol and Decision No 1/80, must be interpreted under Article 31 of the Vienna Convention on the law of treaties – that is to say, in good faith – in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. See Case C-416/96 Eddline El-Yassini [1999] ECR I-1209, paragraph 47. See also the Opinion of Advocate General Cruz Villalón in Case C-221/11 Demirkan, pending before the Court, point 53.
32 – Sahin, paragraph 52. See, to that effect, also Toprak and Oguz.
33 – Sahin, paragraphs 54 and 55. See also, similarly Toprak and Oguz, paragraphs 15 and 21, and Dereci and Others, paragraphs 99 and 100. Conversely, Abatay and Others involved Turkish lorry drivers who lived and worked in Turkey and who only resided in Germany for short periods of time.
34 – Dereci, paragraph 87.
35 – See point 32 above.
36 – This is because the standstill clause also prohibits Member States from reversing more beneficial rules even if they were introduced after the date when the standstill clause took effect. This applies even where that tightening does not make the relevant rules more stringent than those resulting from the provision in force on the date when the standstill clause took effect. See Toprak and Oguz, paragraph 62.
37 – While the case-file contains no evidence of fraudulent or abusive behaviour in the present case, it is nonetheless necessary to observe that, as a matter of principle, EU law cannot be relied on to abusive or fraudulent ends and that national courts may – on a case by case basis – take account of abuse or fraudulent conduct on the part of the persons concerned in order, where appropriate, to deny them the benefit of the provisions of EU law on which they seek to rely. See, to that effect, Tum and Dari, paragraph 64.
38 – Case C-98/96 Ertanir [1997] ECR I-5179, paragraphs 47 to 50 and case-law cited.
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