This summer, the Supreme Court of Denmark (Højesteret) (Danmarks Domstole) made a new reference for a preliminary ruling to the Court of Justice of the European Union under Article 267 TFEU.
The reference is Case C-375/23, Meislev.
In the referral, the Supreme Court is seeking the assistance of the CJEU in interpreting the ‘standstill clause’ in Article 13 of Decision No. 1/80 of the EU-Turkey Association Council, which bars EU Member States from introducing subsequent restrictions on workers and their families ‘after’ they have exercised lawful movement to that EU Member State and entered into the labour market.
The national authorities in Denmark have refused to grant a permanent residence permit to a person. This is despite the fact that they have lawful residence in the Member State, in line with national law,. The applicant is arguing that Denmark, having subsequently changed the law on the acquisition of permanent residence (made it harder to acquire) after the adoption of Decision 1/80, that such national measures are thus incompatible with EU law.
The Supreme Court wants to know whether the higher threshold on permanent residence, constitutes a new restriction that contravenes the decision made under the EU international agreement, and if so, whether or not there are requirements in the public interest that might justify such new restrictions.
Comment:
The CJEU has already answered a series of questions on this standstill clause for the Danish courts, in particular, the Østre Landsret (Eastern High Court). It recent years alone, it has rendered judgments in:
- Case C-279/21, X v Udlændingenævnet.
- Case C-379/20, B v Udlændingenævnet.
- Case C-89/18, A v Udlændinge- og Integrationsministeriet.
Notwithstanding these judgments, the Supreme Court may have found itself under an obligation to make a reference under Article 267 TFEU, third paragraph.
It is without doubt that if a higher threshold was instituted post-1980, that this will be considered a ‘new restriction’ that breaches Decision 1/80. That said, given the prior case, whether the justification requirement can be lawfully invoked here by Denmark is much more uncertain, given these three prior judgments, and others.
Whilst the case in the national court is BS-8270/2022-HJR, the legal developments in the pending case at the CJEU in Case C-375/23, Meislev can be accessed at the following link: https://lnkd.in/d5xunmEq
Graham Butler