European Court of Justice, 30.04.2014, Case No.: C-138/13
The Court of Justice of the European Union (CJEU) is the competent authority for the interpretation of EU law. Its role is to ensure that EU law is applied uniformly across all EU Member States.
To ensure this consistent application of European law, Article 234 of the EC Treaty (formerly Article 177) provides that questions regarding the validity and interpretation of European Community law can or must be referred to the CJEU by national courts.
In this process, the Court of Justice is assisted by nine „Advocates General.“ Their role is to provide impartial and public opinions on the cases brought before the Court by the courts of the Member States.
In the above-mentioned case, the European Court of Justice was presented with two questions by the Administrative Court of Berlin regarding the compatibility of the language requirement for spousal reunification of Turkish nationals with EU law.
Case Background: Turkish Wife Seeking to Join Her Husband
The plaintiff, a Turkish national residing in Turkey, applied for a visa to join her husband, who is also a Turkish national and has been living in Germany since 1998. Her husband is the managing majority shareholder of a GmbH (limited liability company) and holds a German permanent residence permit. Before their civil marriage in 2007, the plaintiff and her husband had already entered into a religious marriage, resulting in four children born between 1988 and 1993.
On January 18, 2011, the plaintiff applied for a visa for family reunification at the German Embassy in Ankara for herself and two of her children. She submitted a language certificate from the Goethe Institute, confirming her completion of a language test at level A1. The test was passed on September 28, 2010, with a score of „sufficient“ (62 out of 100 points), with written performance being rated at 14.11 out of 25 possible points. However, the plaintiff is illiterate, and it was noted that she had randomly marked answers and memorized three pre-formulated sentences for the test.
Visa Application Rejection Due to Lack of German Language Skills
The German Embassy rejected the visa application on March 23, 2011, stating that the plaintiff could not demonstrate sufficient German language skills. The plaintiff did not contest this decision but instead submitted a new application on July 26, 2011, for a visa solely for family reunification. This application was also rejected by the Embassy on October 31, 2011.
Appeal and Second Rejection
Following legal representation on November 15, 2011, the German Embassy overturned the initial rejection but issued a new rejection on January 24, 2012. The reason was again that the plaintiff, as an illiterate person, did not have the required language skills. The plaintiff filed a lawsuit against this decision with the Administrative Court of Berlin.
Referral to the European Court of Justice
The Administrative Court of Berlin suspended the proceedings and referred two questions to the European Court of Justice (ECJ) for a preliminary ruling. First, it asked whether Article 41(1) of the Additional Protocol prohibits a regulation introduced after the protocol’s entry into force that makes family reunification of Turkish nationals dependent on passing a language test. Second, it inquired whether this regulation is compatible with Article 7(2) of Directive 2003/86/EC.
Opinion of the Advocate General
The Advocate General of the ECJ argued that the language requirement was disproportionate, particularly in relation to the objective of combating forced marriages. The requirement could indefinitely delay family reunification as it applied regardless of the individual circumstances of the case. The Advocate General also dismissed the German government’s argument that acquiring language skills prior to entry would lead to better integration than a subsequent language course in Germany. Instead, he emphasized that participating in integration courses after entry would be a better way to promote integration and prevent social exclusion. By attending mandatory integration courses, spouses wishing to join their families could step out of their domestic environment and establish contacts within German society. This would not only foster integration but also empower victims of forced marriages by providing regular contact with course instructors and other participants. Such relationships could help identify problems early and initiate support measures.
Conclusions and Recommendations
The Advocate General concluded that the plaintiff could rely on the standstill clause in Article 41(1) of the Additional Protocol to oppose the application of the German language requirement in her case. Regarding the second question from the Administrative Court of Berlin, the Advocate General recommended addressing it only if the Court did not follow his opinion on the first question. In that case, he suggested that the language requirement regulation under Directive 2003/86/EC should be deemed inadmissible, as it did not provide exceptions for specific circumstances such as illiteracy or other personal obstacles.
The Advocate General emphasized that a case-by-case assessment in the visa application process was necessary. This assessment should particularly consider the interests of minor children and the personal circumstances of the spouse seeking reunification, including whether sufficient opportunities to acquire language skills exist in the country of origin, considering costs and accessibility. The health condition and personal situation of the spouse, such as age, illiteracy, disability, or educational background, should also be taken into account.
The Advocate General concluded that the rigid requirements of the German language requirement were disproportionate and conflicted with the principles of European legislation, particularly in cases where access to language courses is significantly limited or made difficult by personal circumstances.
Source: European Court of Justice
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