Case C‑402/21

Staatssecretaris van Justitie en Veiligheid and Others

v

S
and
Staatssecretaris van Justitie en Veiligheid

(Reference for a preliminary ruling from the Raad van State)

Judgment of the Court (Second Chamber), 9 February 2023

(Reference for a preliminary ruling – EEC-Turkey Association Agreement – Decision No 1/80 – Articles 6 and 7 – Turkish nationals already integrated into the labour market of the host Member State and enjoying an associated right of residence – Decisions of national authorities withdrawing the right of residence of Turkish nationals who have been lawfully resident in the Member State concerned for more than 20 years on the ground that they constitute a present, genuine and sufficiently serious threat to a fundamental interest of society – Article 13 – Standstill clause – Article 14 – Justification – Grounds of public policy)

1. International agreements – EEC-Turkey Association Agreement – Freedom of movement for persons – Workers – Standstill clause laid down in Article 13 of Decision No 1/80 of the Association Council – Scope – Turkish nationals who have the rights referred to in Article 6 or Article 7 of that decision – Included

   (Decision No 1/80 of the EEC-Turkey Association Council, Arts 6, 7 and 13)

   (see paragraphs 53-56, 58-60, operative part 1)

2. International agreements – EEC-Turkey Association Agreement – Freedom of movement for persons – Workers – Limitations justified on grounds of public policy, public security or public health – Scope – National legislation allowing withdrawal of the right of residence of Turkish nationals who constitute a genuine, present and sufficiently serious threat affecting one of the interests of society – Justification – Conditions – Proportionality – Prior and individual assessment of the current situation of those nationals

   (Decision No 1/80 of the EEC-Turkey Association Council, Arts 6, 7, 13 and 14(1); Council Directive 2003/109, Art. 12)

   (see paragraphs 66, 68-73, 75, 77, operative part 2)

Résumé

In the Netherlands, a foreign national’s unlimited residence permit may be withdrawn, inter alia, where he or she has been convicted of offences punishable by a term of imprisonment of three years or more and the total length of the sentences imposed reaches a certain threshold. Until 2012, however, withdrawal was prohibited when the foreign national had been legally resident in that country for at least 20 years. Following a legislative amendment adopted in July 2012, on the ground of the changed perception of public policy protection within Netherlands society, that prohibition was removed. ( 1 )

Pursuant to that new legislation, S, E and C, three Turkish nationals who had been legally resident in the Netherlands for more than 20 years, had their residence permits of unlimited duration withdrawn by decisions of the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands). The reasons for the withdrawal were that, during their residence, they had been the subject of several criminal convictions, the seriousness of the offences and the total duration of the fixed prison sentences reaching the required threshold, and that that conduct constituted a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

The actions brought by S, E and C respectively against those decisions before the rechtbank Den Haag (District Court, The Hague, Netherlands) led to different conclusions as regards the applicability, in the present case, of Article 13 of Decision No 1/80 of the Association Council, ( 2 ) which has been applicable since 1 December 1980. That article lays down a standstill clause prohibiting Member States from introducing new restrictions on the conditions of access to employment applicable to Turkish workers and members of their families legally resident and employed in their respective territories. However, according to Article 14 of Decision No 1/80, the application of the provisions of that decision relating to employment and the freedom of movement of workers may be subject to limitations justified, inter alia, on grounds of public policy.

Hearing an appeal in those actions, the Raad van State (Council of State, Netherlands) decided to ask the Court of Justice about the scope of, and relationship between, Articles 13 and 14 of Decision No 1/80.

In its judgment, the Court confirms that Article 13 of Decision No 1/80 applies to Turkish nationals who already hold employment and freedom of movement rights under that decision. It also specifies the circumstances in which a new restriction of those rights, against which Turkish nationals may rely on Article 13, may be justified by public policy requirements within the meaning of Article 14 of Decision No 1/80.

Findings of the Court

In the first place, the Court examines the scope of the standstill clause laid down Article 13 of Decision No 1/80. It recalls its case-law according to which that clause has direct effect and must, in the light of the objective of Decision No 1/80, which is to allow freedom of movement for workers, be interpreted broadly. Both a new restriction which tightens the conditions of access to the first professional activity of a Turkish worker or members of his or her family and that which, once that worker or members of his or her family benefit from rights in the field of employment under Article 6 or Article 7 of Decision No 1/80, ( 3 ) restricts his or her access to paid employment guaranteed by those rights, are contrary to the objective of that decision.

Furthermore, it follows from the case-law that measures taken by a Member State which seek to define the criteria for the lawfulness of the situation of Turkish nationals, by adopting or amending, inter alia, the conditions relating to the residence of those nationals in its territory, are capable of constituting new restrictions within the meaning of Article 13 of Decision No 1/80.

Therefore, national legislation which permits the withdrawal of the right of residence of the persons concerned which they enjoy pursuant to Articles 6 and 7 of Decision No 1/80 restricts their right to freedom of movement in relation to the right to freedom of movement which they enjoyed at the time of the entry into force of that decision and, accordingly, constitutes a new restriction within the meaning of Article 13 of that decision. That provision may therefore be relied on by the Turkish nationals concerned.

In the second place, the Court examines the relationship between Article 13 and Article 14 of Decision No 1/80. It notes that the exception to the prohibition on adopting ‘new restrictions’ for public policy requirements, laid down in Article 14 is a derogation from the freedom of movement of workers and must therefore be interpreted strictly. In addition, any national measure covered by those requirements must be suitable for securing the attainment of the objective of protecting public policy pursued and must not go beyond what is necessary in order to attain it.

Furthermore, as regards Turkish nationals who, like S, E and C, have been resident for more than 10 years in the host Member State, the Court refers, for the purposes of the application of Article 14, to Article 12 of Directive 2003/109 ( 4 ) concerning the protection of long-term residents. Measures justified on grounds of public policy or public security concerning such residents presuppose that the national authorities assess on a case-by-case basis, in compliance with the principle of proportionality and the fundamental rights of the person concerned, whether the personal conduct of the person concerned constitutes a present, genuine and sufficiently serious threat to a fundamental interest of society.

In the light of the foregoing, the Court finds that the legislative measure at issue is covered by the Netherlands authorities’ discretion laid down in Article 14 of Decision No 1/80. However, the reference to the changed social perceptions and the justification based on public policy are not sufficient in themselves to give legitimacy to that measure. It is also for the referring court to assess, taking into account the rights conferred by Decision No 1/80, whether the national measure is suitable for securing the attainment of the objective pursued, whether it does not go beyond what is necessary in order to attain it, and whether it provides for a prior and individual assessment of the current situation of the Turkish worker concerned.

( 1 ) Besluit houdende wijziging van het Vreemdelingenbesluit 2000 in verband met aanscherping van de glijdende schaal (Decree amending the Decree on foreign nationals as regards the tightening of the sliding scale) of 26 March 2012 (Stb. 2012, No 158).

( 2 ) 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.

( 3 ) Articles 6 and 7 of Decision No 1/80 provide for the employment rights of Turkish workers and of members of their families who have been authorised to join them, respectively.

( 4 ) Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44).