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

Provisional text

OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 2 May 2019 (1)

Case C‑70/18

Staatssecretaris van Justitie en Veiligheid

v

A,

B,

P

(Request for a preliminary ruling from the Raad van State (Council of State, Netherlands))

(Reference for a preliminary ruling — EEC-Turkey Association Agreement — Free movement of persons — Workers — Standstill rules — Decision No 1/80 — Article 13 — New restrictions — Prohibition — Biometric data of Turkish nationals — Provision of those data to third parties — Overriding reason in the public interest — Preventing and combating identity fraud and document fraud — Necessity and proportionality — Prevention, detection and investigation of criminal offences — Uncertain and indirect effect)

1.        The present reference for a preliminary ruling raises the question of whether the obligation, imposed on Turkish workers when entering the territory of the Netherlands in order to take up employment there and on the family members of Turkish workers already present in that territory who wish to join them, to provide ten fingerprints and a facial image before those biometric data are placed in the filing system for foreign nationals consulted either for the purposes of verifying the authenticity of documents and the identity of their holder or for the purposes of identifying the perpetrators of criminal offences constitutes a restriction prohibited by Article 7 of Decision No 2/76 (2) of 20 December 1976 adopted by the Association Council (‘Decision No 2/76’) set up by the Agreement establishing an Association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963 by the Republic of Turkey, on the one hand, and by the Member States of the EEC and the Community, on the other, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (3) (‘the Association Agreement’) and, in particular, by Article 13 of Decision No 1/80 (4) of the Association Council of 19 September 1980 on the development of the Association (‘Decision No 1/80’).

I.      Legal framework

2.        The national regime at issue in the case in the main proceedings can be presented as follows.

3.        It follows from the Netherlands legislation that third-country nationals, including Turkish nationals, who wish to stay in the Netherlands for longer than 90 days on an ordinary stay must, in principle, hold a temporary residence permit at the time of entering the territory. That permit is issued by the consular and diplomatic authorities of the Netherlands. For the purposes of obtaining a temporary residence permit, in addition to satisfying the substantive conditions, applicants must ‘cooperate in the compilation of data in order to identify [them]’. (5)

4.        The Law on foreign nationals has conferred on the Netherlands authorities the power to collect and process the biometric data of third-country nationals. In particular, Article 106a of that law provides, in essence, that a facial image and an image of the ten fingerprints of a foreign national may be obtained and processed in order to establish the identity of that foreign national for the purposes of enforcing that law. Those images are compared immediately with those in the filing system for foreign nationals and are then stored in that filing system.

5.        Article 107 of the Law on foreign nationals provides for the creation of a filing system for foreign nationals which contains the biometric data set out in Article 106a of that law and states that those data are to be processed for the purposes of enforcing that law (6) and for the purposes of detection of offences and criminal prosecutions. (7) The making available of the biometric data of third-country nationals for the purposes of the detection of offences and criminal prosecutions is subject to compliance with the conditions set out in Article 107(6) of the Law on foreign nationals. Thus, a measure for pre-trial detention must be able to be imposed for the offence in question (8) and the consultation of the filing system for foreign nationals must be authorised in writing by the examining magistrate at the request of the public prosecution service where there is a reasonable suspicion that the suspect is a third-country national (9) or where it is in the interest of the investigation, if the preliminary investigation has stalled or if swift results are needed in order to shed light on the investigation. (10) In addition, the suspect must raise serious concerns.

6.        The biometric data are stored for a period of five years following the refusal to grant the application for a temporary residence permit, the departure from the Netherlands at the end of a period of lawful residence, or an exclusion order or a declaration of undesirability ceasing to be valid. The data are thus destroyed after that period, or beforehand, should the third-country national become naturalised. (11)

7.        It is apparent from the order for reference that the power to obtain, process and store biometric data in the filing system for foreign nationals may be exercised with respect to third-country nationals who wish to obtain a residence permit to stay in the Netherlands for longer than 90 days or who are staying in that Member State illegally.

II.    The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

8.        B is a Turkish national born in 1982 whose spouse, P, (12) has dual Netherlands and Turkish nationality. On 17 February 2014, P submitted an application for a temporary residence permit for B for the purpose of family reunification. After an initial rejection, the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, ‘the Staatssecretaris’) finally granted the permit requested by decision of 4 April 2014 on the condition that B provided biometric data. B consented to the collection of those data before lodging, on 2 May 2014 and together with P, an administrative appeal against the collection and processing of her biometric data, in which B and P pleaded that the obligation to provide B’s biometric data was contrary to Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80. On 23 December 2014, the Staatssecretaris refuted the argument that that obligation constituted a new restriction within the meaning of those provisions, the obligation to cooperate in the recording of data for identification purposes already having been established by legislation dating from 1965. While it is true that the collection and processing of data affect Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, (13) that adverse effect is justified by a legitimate objective. The Staatssecretaris considered that the collection and processing of biometric data are not contrary to Article 9 of the Association Agreement, either. (14) In contrast to the situation of EU citizens, the residence permit for Turkish nationals for the first admission is not declaratory but constitutive in nature, which justifies the biometric data of EU citizens not being collected or stored. The Staatssecretaris moreover pointed out that the passports of EU citizens contained biometric data.

9.        A is a Turkish national who was born in 1966 and, from 1 December 2013, was employed for a period of five years as an international lorry driver. On 15 November 2013, the reference person for A — his employer — lodged an application for the purposes of issuing A with a temporary residence permit in order to pursue an activity as an employed person. On 28 March 2014, the Staatssecretaris granted that application. The decision granting the permit provided, however, that the permit sought would be granted only once A had provided his biometric data. After having cooperated in the collection of those data, A lodged an administrative appeal against the collection and processing of his biometric data. The Staatssecretaris ruled on that appeal on 6 January 2015, adopting the same position as that stated in his decision of 23 December 2014 by which he dismissed the administrative appeal brought by B and P.

10.      A, on the one hand, and B and P, on the other, brought an action against both of those decisions of the Staatssecretaris before the Rechtbank Den Haag (District Court, The Hague, Netherlands), which delivered its two judgments on 3 February 2016. The Rechtbank Den Haag held that the obligation to cooperate in the collection and processing of biometric data, which is a condition for the issue of a temporary residence permit, constituted a formal condition of admission into the territory of the Netherlands and, as such, a new condition with respect to the data concerned. It then held that the objective pursued by such an obligation, that is to say, preventing and combating identity fraud and document fraud, was legitimate. Last, it took the view that the obligation in question was disproportionate in relation to the legitimate objective pursued. In that regard, the Rechtbank Den Haag held that the Staatssecretaris had not established sufficiently the need for biometric data to be processed in the filing system for foreign nationals provided for in Article 107(1) of the Law of 2000 on foreign nationals. In its view, Turkish nationals have not been shown to use forged travel documents or authentic documents issued on the basis of forged documents any more than other third-country nationals. The argument that the creation of such a filing system is necessary to ensure that the holder of the travel document — which already contains biometric data — had not already submitted an application under another identity was not upheld on account of the fact that the situation of Turkish nationals is not, in that regard, different from that of EU citizens who do not have Netherlands nationality in respect of whom the national legislation nevertheless does not provide for biometric data to be entered in a central filing system. Last, the Rechtbank Den Haag held that making the biometric data available for the purposes of identifying the perpetrators of criminal offences went beyond what was necessary to attain the legitimate objective. The Rechtbank Den Haag held that the obligation to cooperate in the collection of biometric data and to consent to the processing of those data in the central filing system under Article 107 of the Law on Foreign Nationals as amended by the Law of 2013 constituted a new restriction that was prohibited by Article 7 of Decision No 2/76 and by Article 13 of Decision No 1/80.

11.      The Staatssecretaris lodged an appeal before the referring court and submits before that court that the collection and processing of biometric data in a filing system for third-country nationals is necessary to attain the legitimate objective of preventing and combating identity fraud. Identification by means of comparing ten fingerprints is more reliable and the data retention period is necessary and proportionate in relation to the objective of establishing reliably the identity of foreign nationals. The power to process the biometric data is limited in time and ends, according to the Staatssecretaris, on 1 March 2021. As regards making the biometric data available for the purposes of identifying the perpetrators of criminal offences, this serves the legitimate objective of maintaining public order and is proportionate.

12.      The referring court starts from the premiss that the power to collect and process the biometric data of Turkish nationals constitutes a new restriction within the meaning of Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80. Relying inter alia on the judgment in Genc, (15) according to which a new restriction is prohibited unless it is justified by an overriding reason in the public interest, is appropriate for ensuring the attainment of the legitimate objective pursued and does not go beyond what is necessary to attain it, that court is essentially asking whether the collection and processing of biometric data is necessary and proportionate. First, it doubts whether the creation of a filing system for foreign nationals in which biometric data are stored for a relatively long period is necessary and proportionate. Second, it asks whether the fact that the filing system may be made available to the police authorities for the purposes of determining the identity of the perpetrator of a criminal offence is not such as to go beyond what is necessary to achieve the legitimate objective in relation to crime prevention.

13.      It is in those circumstances that the Raad van State (Council of State, Netherlands) decided to stay the proceedings and, by order lodged at the Registry of the Court on 2 February 2018, referred the following questions to the Court for a preliminary ruling:

‘1.      (a)      Must Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80 be interpreted as not precluding a national rule providing for the general processing and storage of the biometric data of third-country nationals, including Turkish nationals, in a filing system within the meaning of Article 2(a) and (b) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [(16)] on the ground that that national rule does not go further than is necessary to achieve the legitimate objective... pursued ..., [namely] preventing and combating identity fraud and document fraud?

(b)      Is it significant in this regard that the duration of the storage of the biometric data is linked to the duration of the lawful and/or illegal stay of third-country nationals, including Turkish nationals?

2.      Must Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80 be interpreted as meaning that a national rule does not constitute a restriction, within the meaning of those provisions, if the effect of that national rule on access to employment, as referred to in those provisions, is too uncertain and too indirect to be regarded as constituting an obstacle to such access?

3.      (a)      If the answer to [the second question] is that a national rule which makes it possible to make available to third parties the biometric data of third-country nationals, including Turkish nationals, contained in a filing system, with a view to the prevention, detection and investigation of offences — whether or not of a terrorist nature — constitutes a new restriction, must Article 52(1), read in conjunction with Articles 7 and 8, of the Charter ... then be interpreted as precluding such a national rule?

(b)      Is it significant in this regard that that third-country national, at the time when he is detained on suspicion of having committed an offence, has in his possession the residence document on which his biometric data are stored?’

14.      In the present case, written observations were submitted by A, by the Netherlands, Danish and United Kingdom Governments and by the European Commission.

15.      At the hearing held before the Court on 17 January 2019, A, the Netherlands and Irish Governments and the Commission presented oral argument.

III. Analysis

A.      Preliminary observations

16.      I would like to precede the analysis with three preliminary observations.

17.      In the first place, both Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80 lay down an unequivocal standstill clause as regards the introduction of new restrictions on the access to employment of workers legally resident and employed in the territory of the contracting States. (17) Those clauses therefore generally prohibit the introduction of any new national measure with the object or effect of making the exercise by a Turkish national of the freedom of movement of workers on national territory subject to conditions more restrictive than those which applied at the time when those decisions entered into force with regard to the Member State concerned. (18) The Court has already held that Article 7 of Decision No 2/76 applies ratione temporis to the national measures introduced during the period between 20 December 1976 and 30 November 1980 and that Article 13 of Decision No 1/80 applies ratione temporis to the national measures introduced after 1 December 1980. (19) As the regime at issue in the main proceedings results from laws and decrees which were adopted after that date, its examination falls solely within the temporal scope of Article 13 of Decision No 1/80 and I shall analyse that regime in the light of that provision only.

18.      In the second place, I would point out that the Court is not required to consider whether or not the regime at issue in the main proceedings constitutes a new restriction from a chronological perspective or whether it pursues an overriding reason in the public interest within the meaning of the case-law of the Court. These are the first two steps of the test that the Court conducts in order to determine whether it is faced with a new restriction that is compatible with Article 13 of Decision No 1/80. (20) Only the question of necessity and proportionality has been put to the Court. Although we are, of course, bound by the questions put to us, I nevertheless have reservations with regard to the claim that the obligation to cooperate in the collection of biometric data constitutes a new restriction per se. In that regard, it is apparent from the file before the Court that, since 1965, it has been possible to collect biometric data if, in the opinion of the official in charge of border surveillance or monitoring foreign nationals, this appeared to be justified for legitimate reasons. (21) In those circumstances, it would be conceivable to regard the provisions resulting from the version of the Law on foreign nationals amended in 2013 which require inter alia Turkish workers and their family members to cooperate in the taking of ten fingerprints and a facial image not as constituting, strictly speaking, a new restriction but rather as a new technological development of an identification requirement that already existed under Netherlands law before Decision No 1/80 entered into force. The existence of such a restriction could therefore be called into question.

19.      However, it is not possible to hide the fact that the regime at issue in the main proceedings does not merely require the collection of biometric data, but also provides for the processing of those data in a filing system that can be consulted by third parties for a variety of purposes and the storage of those data for a period which may prove to be very long. The new technological development that I have mentioned above has brought with it a potential infringement of the rights of Turkish workers justifying the regime at issue in the main proceedings being regarded as a ‘new restriction’ as compared with the scope of the obligation imposed in 1965.

20.      Moreover, it is worth recalling that the Court has already recognised that Article 13 of Decision No 1/80 precludes the introduction into the legislation of Member States, as from the date on which Decision No 1/80 entered into force in the Member State concerned, of any new restrictions on the exercise of the free movement of workers, including those relating to the substantive and/or procedural conditions governing the first admission to the territory of that Member State of Turkish nationals intending to exercise that freedom, (22) as seems to be the case in respect of A. Prima facie, the regime at issue in the main proceedings therefore does indeed appear to fall within the scope ratione materiae of Article 13 of Decision No 1/80. (23)

21.      In the third place, I would point out that the referring court itself has already found the existence of two overriding reasons in the public interest, one relating to preventing and combating identity and document fraud and the other relating to the prevention, detection and investigation of criminal offences. That finding must be confirmed by the Court. Combating identity fraud and document fraud contributes to the objective of combating illegal entry and residence or even the aim of efficient management of migration flows, which have already been classified by the Court as an overriding reason in the public interest. (24) Although, to my knowledge, the prevention, detection and investigation of criminal offences has not yet been established as an overriding reason in the public interest by the Court in the context of the Association Agreement, it must be regarded as a corollary of the maintenance of public policy which is capable of justifying a new restriction under Article 14(1) of Decision No 1/80 (25) and constitutes, to that end, an objective which may legitimately be pursued.

22.      With that in mind, I shall turn to the analysis of the first question.

B.      The first question referred for a preliminary ruling

23.      By its first question, the referring court seeks to establish whether the regime at issue in the main proceedings, which provides for the processing and storage of the biometric data of third-country nationals, including Turkish workers and their family members, for the purposes of preventing and combating identity fraud and document fraud, goes beyond what is necessary to achieve the legitimate objective pursued. The referring court asks whether, in that regard, the retention period is an element which must be taken into account. The aim of that question is to determine whether the new restriction, which consists in requiring the Turkish nationals concerned to cooperate in the collection of their biometric data in order that those data then be placed and processed in the filing system for foreign nationals, is justified under Article 13 of Decision No 1/80.

24.      In essence, the principal features of the regime at issue in the main proceedings may be summarised as follows. Third-country nationals are required, without exception, (26) to cooperate in the taking of their ten fingerprints and a facial image when it is planned to issue them with a temporary residence permit. That permit takes the form of a sticker affixed to the valid travel document. The sticker contains the biometric data of its holder. Two fingerprints will be stored on the residence permit that is issued once the individual concerned has arrived in the territory of the Netherlands. All the data collected are, moreover, placed on the biometric aliens’ register which forms part of the filing system for foreign nationals. The filing system, including the register, may be consulted only by staff who are specifically authorised to do so by the authorities involved in implementing the national policy relating to foreign nationals, that is to say, in principle, the staff members of diplomatic and consular posts in the course of their duties. As regards the host authorities, they are restricted to carrying out checks, where appropriate by consulting the filing system. The creation of that filing system, in the biometric part, fulfils the requirement of ensuring not only the identity of the person who holds and presents the travel document, but also that the holder of the temporary residence permit and the person who submitted the application are the same. Comparing the applicant’s data with the data already entered in the filing system also enables authorities to ensure that the applicant has not already submitted an application under another identity, or has not already resided illegally in the territory of the Netherlands. The data are stored in the filing system for a period of five years following the refusal to grant the application, the departure of the individual concerned at the end of a period of lawful residence or the end of validity of an exclusion order or a declaration of undesirability. The biometric data will be destroyed immediately if the individual concerned is naturalised. The retention period, which is relatively long, can be explained by the pursued objective of combating exchanges of identity, as such an exchange may occur after the individual concerned has ended his residence in the territory of the Netherlands.

25.      To answer to the question referred, it must first be borne in mind that biometric data are sensitive personal data the use and processing of which must be regulated. As such, they are protected by Article 8 of the Charter. Their role in identifying persons has already been acknowledged in the case-law of the Court. In particular, the Court has already held that fingerprints constitute ‘personal data’, as they objectively contain unique information about individuals which allows those individuals to be identified with precision. (27) The EU legislature has provided for recourse to be had to such data in order to establish the identity of EU citizens (28) or of third-country nationals. (29) Moreover, the actions of national authorities consisting in the taking and storing of fingerprints on the sticker and in the central filing system for foreign nationals must be regarded as a processing of personal data which is also regulated. (30)

26.      Any processing of personal data by a third party may constitute a threat to the right to the protection of personal data. (31) Derogations from and limitations on the protection of personal data must apply only in so far as is strictly necessary. (32) The necessity and proportionality of the regime at issue in the main proceedings must therefore be assessed in the light of those considerations. In order to do so, the examination must include whether the collection and storage is necessary to achieve the objective pursued, the nature of the data, their quantity and the retention period and the circumstances in which they may be consulted in the filing system.

27.      As I have already stated, it seems perfectly legitimate for a Member State to seek to ensure, by establishing conditions for entry into its territory, the correct identity of the applicant for a temporary residence permit. Storing two fingerprints on the sticker helps to ensure that the holder of that sticker is indeed the person to whom that permit has actually been issued. As regards the entry of applicants’ biometric data in the central filing system for foreign nationals, again, this seems to me to be necessary in so far as the Netherlands Government, supported by the other Governments that have intervened in the present preliminary ruling proceedings, has noted the need to combat fraudulent uses of identity, which may require ensuring that an applicant has not already submitted an application under a different identity by comparing his fingerprints with those already registered.

28.      The nature of the data collected is clearly consistent with the objective pursued in view of the intrinsic link between biometric data and the identity of persons.

29.      The quantity of the data does not seem excessive. The EU legislature has moreover chosen to require that visa applicants provide ten fingerprints and a facial image. (33) Such data are also processed in the Visa Information System (34) the aim of which is to improve the implementation of the common visa policy and combat fraud.

30.      The retention period must, of course, be taken into consideration when establishing whether the new restriction, within the meaning of Article 13 of Decision No 1/80, is proportionate. It is clear from the case-law of the Court that such a period must continue to meet objective criteria that establish a connection between the personal data to be retained and the objective pursued. (35) The Netherlands Government acknowledges that the retention period will, in practice, very often be longer than five years since the retention period is linked to the length of the stay in the Netherlands. Moreover, that period appears to be fixed in the light of the objective pursued. The requirement of ensuring the identity of the temporary residence permit applicant is not immediately dispelled once the individual concerned has entered the territory of the Netherlands or once he has left that territory. That identity may still be verified to the extent that his right of residence will be reviewed or consolidated. Similarly, combating identity fraud and multiple identities may justify storing biometric data in the filing system for foreign nationals over a long period. That may moreover be to the advantage of third-country nationals already present in the territory of the Netherlands if an application for a temporary residence permit were to be submitted in their name and, therefore, under their false identity. Consular staff might then, for example, discover that biometric data that have already been collected match the identity declared. The Commission has helpfully noted in that regard that its proposal to amend the VIS Regulation provides that the retention period for data relating to the applicants of visas, long-stay visas or residence permits is to be extended to five years after those permits cease to be valid. (36)

31.      The conditions in which provision is made for the filing system to be consulted are in line with its function and the objective pursued since it is those staff members of diplomatic and consular posts who are authorised to populate and consult the filing system, always for the purposes of verifying the applicant’s identity and that there has been no identity theft or fraud. The host authorities will be able to consult the filing system only for those same purposes.

32.      Consequently, the examination of the regime at issue in the main proceedings has not revealed any reason capable of calling into question the necessity and proportionality of the new restriction in the light of the objective of combating identity fraud and document fraud.

33.      Accordingly, it follows from the foregoing that Article 13 of Decision No 1/80 must be interpreted as meaning that it does not preclude the regime at issue in the main proceedings which requires Turkish workers who wish to enter the territory of the Netherlands in order to take up employment there and family members of Turkish workers already present in that territory who wish to join them, in order to obtain a temporary residence permit to stay in the Netherlands for longer than 90 days, which is necessary to enter the territory of the Netherlands, to cooperate in the taking of their ten fingerprints and a facial image for the purpose of storing those data and processing them in a filing system for foreign nationals which may be consulted by the staff of consular, diplomatic and host authorities for the purposes of preventing and combating identity fraud and document fraud, and where those data will be stored for a period of five years following the refusal to grant the application for a temporary residence permit, the departure from the Netherlands at the end of a period of lawful residence, or an exclusion order or a declaration of undesirability ceasing to be valid.

C.      The second and third questions referred for a preliminary ruling

34.      By its second question to the Court, the referring court seeks to establish whether the national legislation at issue in the main proceedings is such as not to constitute a ‘new restriction’ within the meaning of Article 13 of Decision No 1/80 in so far as its effect on Turkish nationals’ access to employment would prove to be too uncertain and indirect to be regarded as constituting an obstacle to such access. Despite its general wording, it is clear from the request for a preliminary ruling that that question is raised with regard to the second function of the filing system for foreign nationals, namely, that which pursues the objective of preventing, detecting and investigating criminal offences.

35.      As I have already recalled, the standstill clause set out in Article 13 of Decision No 1/80 generally prohibits the introduction of any new measure which has the object or effect of making the exercise by a Turkish national of an economic freedom subject, on the territory of the Member State concerned, to conditions more restrictive than those which applied at the time when that decision entered into force. Therefore, if the new restriction is such as to affect the freedom of A to carry out paid employment in the Netherlands, the application of the national regime at issue in the main proceedings should be precluded. Moreover, P’s decision to establish himself and, in particular, to remain in the Netherlands in her capacity as a Turkish worker could also be negatively affected if the national legislation made family reunification with B difficult or impossible, such that P might then be obliged to choose between her activity in the Netherlands and her family life in Turkey. (37) The question here is therefore whether the mere possibility of using the biometric data of Turkish nationals — workers or family members of workers — for criminal purposes is such as to affect the exercise of an economic activity by those workers and thus indeed constitutes a ‘new restriction’, within the meaning of Article 13 of Decision No 1/80, on the exercise of the freedom of movement by those Turkish workers.

36.      In that regard, it is necessary to recall the settled case-law of the Court, according to which it must be inferred from the wording of the Association Agreement as well as from the objective of Decision No 1/80 that the principles enshrined in Articles 45 and 46 TFEU must be extended, so far as possible, to Turkish nationals who enjoy the rights conferred by that decision. (38) It is therefore necessary to draw on the case-law of the Court on the concept of an ‘obstacle to the free movement of EU workers’ in order to determine whether the regime at issue in the main proceedings, in so far as it provides that the biometric data collected from Turkish nationals at the time of the issue of the temporary residence permit to come to take up employment in the territory of the Netherlands or to join in that territory a Turkish worker who is already present, will be able to be consulted for the purposes of identifying the perpetrators of criminal offences, is liable to affect the exercise by the Turkish nationals concerned of their economic activity.

37.      The referring court and the Netherlands Government have relied in particular on the judgment in Graf. (39) It is clear from that judgment, which concerns the free movement of EU workers, that, if the restrictive effect of a national measure appears to be too uncertain and indirect, it will not be regarded as being liable to hinder the free movement of workers. (40)

38.      The event consisting in making available, in the filing system for foreign nationals, the biometric data of A or of B for the purposes of assisting in the identification of suspects of criminal offences seems to me to be too uncertain and indirect to constitute a restriction on the exercise of the freedom of movement enjoyed by Turkish workers.

39.      The regime at issue in the main proceedings, in so far as it provides that the biometric data of Turkish workers and their family members are to be made available for the purposes of identifying the perpetrators of criminal offences, is not, in my opinion, such as to preclude or deter those workers from residing and pursuing an economic activity in the territory of the Netherlands since the provision of those data is dependent on a number of future and hypothetical events, namely: (a) being suspected of having committed an offence whereby the filing system for foreign nationals may be consulted in order for that offence to be punished or consultation of the filing system is required in the interests of the investigation; (b) there are reasonable suspicions that the perpetrator of the offence is a third-country national; (c) the conduct of that foreign national is a cause for serious concern; and, last, (d) that search is requested by the public prosecution service and authorised by the court. (41)

40.      I therefore find it hard to envisage that P would be deterred from remaining in the Netherlands to work on account of the fact that the biometric data of her spouse will possibly be made available to the competent authorities in the event of there being serious suspicions that he has participated in committing an offence or that A would be ready to give up his employment as an international driver for that reason. The Netherlands Government’s claim, which has not been disputed by the parties participating in the proceedings before the Court, that the filing system for foreign nationals is consulted, for criminal purposes, between 10 and 30 times per year confirms, in my view, that the effect of that consultation on the exercise of the economic freedom enjoyed by Turkish workers is too uncertain and indirect. The Netherlands Government also confirmed at the hearing, in response to a question from the Court, that the data of the applicants in the main proceedings had not been used in the course of criminal proceedings.

41.      In those circumstances, the regime at issue in the main proceedings, in so far as it allows the biometric data of Turkish workers and their family members contained in a filing system to be made available to third parties with a view to the prevention, detection and investigation of offences, does not constitute a new restriction within the meaning of Article 13 of Decision No 1/80 since its effect on those workers’ access to employment is too uncertain and indirect.

42.      As the third question is referred to the Court in the event that the second question is answered in the affirmative, it does not, according to my analysis, need to be examined.

IV.    Conclusion

43.      In the light of all the foregoing considerations, I propose that the Court answers the questions referred for a preliminary ruling by the Raad van State (Council of 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 must be interpreted as meaning that it does not preclude the regime at issue in the main proceedings which requires Turkish workers who wish to enter the territory of the Netherlands in order to take up employment there and family members of Turkish workers already present in that territory who wish to join them, in order to obtain a temporary residence permit to stay in the Netherlands for longer than 90 days, which is necessary to enter the territory of the Netherlands, to cooperate in the taking of their ten fingerprints and a facial image for the purpose of storing those data and processing them in a filing system for foreign nationals which may be consulted by the staff of consular, diplomatic and host authorities for the purposes of preventing and combating identity fraud and document fraud, and where those data will be stored for a period of five years following the refusal to grant the application for a temporary residence permit, the departure from the Netherlands at the end of a period of lawful residence, or an exclusion order or a declaration of undesirability ceasing to be valid.

(2)      The regime at issue in the main proceedings, in so far as it allows the biometric data of Turkish workers and their family members contained in a filing system to be made available to third parties with a view to the prevention, detection and investigation of offences, does not constitute a new restriction within the meaning of Article 13 of Decision No 1/80 since its effect on those workers’ access to employment is too uncertain and indirect.

1      Original language: French.

2      According to which ‘[t]he Member States of the Community and Turkey may not introduce new restrictions on the conditions of access to employment applicable to workers legally resident and employed in their territory’.

3      OJ 1964 217, p. 3685.

4      According to which ‘[t]he 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’.

5      Article 54(1)(c) of the Vreemdelingenwet 2000 (Law of 2000 on foreign nationals), as amended by the Wet van 11 december 2013 tot wijziging van de Vreemdelingenwet 2000 in verband met de uitbreiding van het gebruik van biometrische kenmerken in de vreemdelingenketen in verband met het verbeteren van de identiteitsvaststelling van de vreemdeling (Law of 11 December 2013 amending the Law of 2000 on foreign nationals in the context of expanding the use of biometric identifiers in the immigration process with a view to improving the identification of foreign nationals, entered into force on1 March 2014; Stb. 2014 No 2; ‘Law on foreign nationals’).

6      Article 107(2) of the Law on foreign nationals.

7      Article 107(5) of the Law on foreign nationals.

8      That is the case, in principle, for every offence punishable by a sentence of at least four years’ imprisonment, in the specific cases provided for by the Netherlands Criminal Code and by special laws.

9      Article 107(6)(a) of the Law on foreign nationals.

10      Article 107(6)(b) of the Law on foreign nationals.

11      Article 107(9) of the Law on foreign nationals. See also Article 8.35 of the Vreemdelingenbesluit 2000 (Decree on foreign nationals of 2000).

12      In so far as the application for family reunification appears to be based on the provisions contained in Decision No 1/80, it must be assumed that P has Turkish worker status, within the meaning of that decision, and is already present in the territory of the Netherlands. It must also be assumed that P is in paid employment.

13      ‘The Charter’.

14      According to which ‘[t]he Contracting Parties recognise that within the scope of this Agreement, and without prejudice to any special provisions which may be laid down pursuant to Article 8, any discrimination on grounds of nationality shall be prohibited in accordance with the principle laid down in Article 7 of the Treaty establishing the Community’.

15      Judgment of 12 April 2016 (C‑561/14, EU:C:2016:247, paragraph 51).

16      OJ 1995 L 281, p. 31.

17      See judgment of 7 August 2018, Yön (C‑123/17, EU:C:2018:632, paragraph 38 and the case-law cited).

18      See judgment of 7 August 2018, Yön (C‑123/17, EU:C:2018:632, paragraph 39 and the case-law cited).

19      See judgment of 7 August 2018, Yön (C‑123/17, EU:C:2018:632, paragraphs 40 to 48).

20      For a reminder of that test, see point 12 of this Opinion.

21      See paragraph 7 of the request for a preliminary ruling which cites the Vreemdelingenwet 1965 (Law on foreign nationals of 1965) and the Vreemdelingenbesluit 1966 (Decree on foreign nationals of 1966).

22      See judgments of 29 April 2010, Commission v Netherlands, (C‑92/07, EU:C:2010:228, paragraph 49), and of 7 November 2013, Demir (C‑225/12, EU:C:2013:725, paragraph 34 and the case-law cited).

23      In that regard, I would point out that the questions referred to the Court for a preliminary ruling concern solely the compatibility of the regime at issue with Article 13 of Decision No 1/80, to the exclusion of the question of the compatibility with Article 9 of the EEC-Turkey Association Agreement raised by the Staatssecretaris in the proceedings before the court at first instance (see point 8 of this Opinion).

24      See, respectively, judgment of 7 November 2013, Demir (C‑225/12, EU:C:2013:725, paragraph 41), and judgments of 29 March 2017, Tekdemir (C‑652/15, EU:C:2017:239, paragraph 39) and of 7 August 2018, Yön (C‑123/17, EU:C:2018:632, paragraph 77).

25      According to which ‘[t]he provisions of this section shall be applied subject to limitations justified on grounds of public policy, public security or public health’.

26      It is apparent from the file that the collection requirement is not imposed on children under the age of six years or on persons who are physically incapable of complying with that requirement.

27      See judgment of 17 October 2013, Schwarz (C‑291/12, EU:C:2013:670, paragraph 27).

28      See, for example, Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1).

29      See, inter alia, Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ 2009 L 243, p. 1).

30      See Article 8(2) of the Charter.

31      See judgment of 17 October 2013, Schwarz (C‑291/12, EU:C:2013:670, paragraph 25).

32      Judgment of 21 December 2016, Tele2 Sverige and Watson and Others (C‑203/15 and C‑698/15, EU:C:2016:970, paragraph 96).

33      See Article 13 of the Visa Code.

34      See Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation) (OJ 2008 L 218, p. 60).

35      See Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017 (EU:C:2017:592, paragraph 191 and the case-law cited).

36      See the proposed Article 23 of the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 767/2008, Regulation (EC) No 810/2009, Regulation (EU) 2017/2226, Regulation (EU) 2016/399, Regulation XX/2018 [Interoperability Regulation], and Decision 2004/512/EC and repealing Council Decision 2008/633/JHA (COM (2018) 302 final, Brussels, 16 May 2018).

37      See judgment of 12 April 2016, Genc (C‑561/14, EU:C:2016:247, paragraphs 39 and 40), and of 29 March 2017, Tekdemir (C‑652/15, EU:C:2017:239, paragraph 31). See also judgment of 21 December 2016, Ucar and Kilic (C‑508/15 and C‑509/15, EU:C:2016:986, paragraph 68). See, as regards the link between the freedom of establishment of Turkish workers and the conditions for the authorisation of family reunification, judgments of 10 July 2014, Dogan (C‑138/13, EU:C:2014:2066, paragraph 34 and the case-law cited, and paragraph 35), and of 7 August 2018, Yön (C‑123/17, EU:C:2018:632, paragraph 60 and the case-law cited).

38      See judgments of 6 June 1995, Bozkurt (C‑434/93, EU:C:1995:168, paragraph 20); of 10 February 2000, Nazli (C‑340/97, EU:C:2000:77, paragraphs 50 and 54); of 19 November 2002, Kurz (C‑188/00, EU:C:2002:694, paragraph 30 and the case-law cited), and of 8 December 2011, Ziebell (C‑371/08, EU:C:2011:809, paragraphs 52, 58 and 66).

39      Judgment of 27 January 2000 (C‑190/98, EU:C:2000:49).

40      See judgment of 27 January 2000, Graf (C‑190/98, EU:C:2000:49, paragraphs 23 to 25). See also judgment of 13 March 2019, Gemeinsamer Betriebsrat EurothermenResort Bad Schallerbach (C‑437/17, EU:C:2019:193, paragraph 40).

41      By analogy, see judgment of 27 January 2000, Graf (C‑190/98, EU:C:2000:49, paragraph 24).

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