The Court of Justice of the European Union (CJEU or the Court) has decided in Case C-375/23, Meislev (EN v Immigration Appeals Board (Udlændingenævnet) that the revised law of Denmark on issuance of permanent residence permits is not a ‘new restriction’ that violates the standstill clause in Decision 1/80 for Turkish nationals. The case has been referred to the Court under the reference for a preliminary ruling procedure contained in Article 267 TFEU by the Supreme Court of Denmark (Højesteret).
Article 13 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association between the European Economic Community and Turkey (‘Decision No 1/80’) contains a ‘standstill clause’. It provides that:
‘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.’
The standstill clause has given rises to numerous judgments of the Court over the years, with numerous references made by the national courts of Denmark. Whilst there are numerous cases referred to the Court from other Member States also, the Court stated that the novelty in the case at hand was an opportunity to clarify whether national legislation laying down stricter conditions for obtaining a permanent residence permit in an EU Member State than those which applied at the time when that decision entered into force in that Member State constitutes a ‘new restriction’ within the meaning of that article, a question upon which it had not yet ruled (para. 27).
In this case, a national of Turkey held a residence permit in Denmark on the basis of their marriage to a national of Denmark, and was a worker. The person thus fell within the scope of Decision 1/80. They subsequently applied for a ‘permanent’ residence permit. This was rejected by the national authority in Denmark on the grounds that the person did not have six continuous years of residence, as set out in national law; or foyr years subject to specific conditions also set out in national law.
At administrative appeal stage before the Immigration Appeals Board, the national authority’s decision to refuse to grant the person a permanent residence permit was upheld. When the case reached the judicial appeal stage, Eastern High Court (Østre Landsret), it also dismissed the applicant’s plea. Upon reaching the Supreme Court, it made a reference for a preliminary ruling.
Given the person continued to hold a temporary residence permit, the Court ruled that,
‘the refusal by the competent national authorities to grant, pursuant to the…[national law]… a right of permanent residence to Turkish workers who, like the applicant in the main proceedings, fall within the scope of Article 6(1) of Decision No 1/80 and hold a temporary residence permit in Denmark does not have the effect of preventing those workers from continuing to carry out their occupational activity and from enjoying the rights granted by that provision, in particular a right of residence in that Member State. Such a refusal does not, therefore, adversely affect the exercise, by Turkish workers who fall within the scope of that provision and who are legally residing in that Member State, of their right to freedom of movement.’ (para. 37).
Further,
‘athough the…[national law]…which provides, inter alia, that…[persons]…can obtain a permanent residence permit…tightens the conditions for obtaining a permanent residence permit…that law does not constitute a ‘new restriction’, within the meaning of Article 13 of that decision.’ (para. 38).
This was because the Court was of the view that the national law,
‘does not adversely affect the exercise, by Turkish nationals who fall within the scope of Article 6(1) of that decision and who are legally residing in that Member State, of their right to freedom of movement in the territory of that Member State.’ (para 38).
The judgment of the Court of Justice of the European Union in Case C-375/23, Meislev delivered on 4 July 2024 is available here.