Federal Administrative Court, January 26, 2017, Case No.: BVerwG 1 C 1.16
There has been an Association Agreement between Europe and Turkey for a long time. Legally, this Association Agreement is classified as an international treaty. The objective of this agreement was and remains to strengthen trade and economic relations between Turkey and the EU, for example, through the gradual establishment of a customs union and the alignment of economic policies.
In addition to the Association Agreement, a supplementary protocol was adopted by the contracting parties, which detailed the specifics and the timetable for the transitional phase leading up to the realization of the customs union. Article 41(1) of the supplementary protocol contains a so-called „non-deterioration clause“ („standstill clause“) concerning the freedom of establishment and the freedom to provide services.
The supplementary protocol stipulates that the contracting parties may not introduce any new restrictions on the freedom of establishment and the free movement of services among themselves. This clause is relevant to the recurring question of whether Turkish nationals are subject to the visa requirement.
Background and Facts
In this case, a Turkish national, the plaintiff, sought to join her husband, who is also a Turkish national living in Germany. The plaintiff’s husband had been living and working in Germany for several years. The plaintiff entered Germany in 2013 with a Schengen visa via the Netherlands and applied for a residence permit for spousal reunification in May 2013. She cited her need for her husband’s support due to health issues such as type 2 diabetes, anemia, and her illiteracy.
The responsible immigration authority rejected the application because the plaintiff could not prove that she had basic German language skills as required by § 30(1) sentence 1 no. 2 of the Residence Act (AufenthG). Additionally, the application was denied because the plaintiff had entered Germany without the required national visa. The plaintiff then filed a lawsuit with the Administrative Court, which ruled in her favor. The court argued that both grounds for refusal could not be applied due to the association law standstill clauses in Art. 13 ARB 1/80 and Art. 7 ARB 2/76.
Decision of the Federal Administrative Court and Referral to the CJEU
The Federal Administrative Court, in its review of the case, determined that clarification was needed regarding whether the national visa requirement for spousal reunification with a Turkish worker was compatible with the association law standstill clause of Art. 7 ARB 2/76. For this reason, the Federal Administrative Court referred several questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling, including the question of whether this standstill clause still applied to legal changes, such as the introduction of the visa requirement for spouses, that were enacted shortly before the entry into force of Art. 13 ARB 1/80.
The Federal Administrative Court saw no further need for clarification regarding the compatibility of the language requirement with EU law, as a hardship clause (§ 30(1) sentence 3 no. 6 AufenthG) had come into effect during the legal proceedings. This clause allows for an exemption from the language requirement if, due to special circumstances in the individual case, it is impossible or unreasonable for the spouse to acquire basic German language skills before entering Germany.
Legal Analysis of the Standstill Clauses
A central issue in the case is the significance and application of the standstill clauses in the Association Agreement between the European Economic Community and Turkey, particularly Art. 13 ARB 1/80 and Art. 7 ARB 2/76. These clauses are intended to ensure that Member States do not introduce new restrictions on the free movement of workers and their family members. The key question was whether the national visa requirement, which was introduced after the entry into force of Art. 7 ARB 2/76 but before the entry into force of Art. 13 ARB 1/80, is compatible with the association law provisions.
The Federal Administrative Court found that it was unclear whether Art. 7 ARB 2/76 had been fully replaced by Art. 13 ARB 1/80 or whether the provisions of Art. 7 ARB 2/76 continued to apply. Moreover, it needed to be clarified whether the CJEU’s case law on Art. 13 ARB 1/80 could be extended to Art. 7 ARB 2/76. Finally, the question arose as to whether the national visa requirement could be justified by overriding reasons of public interest, such as effective immigration controls, when special hardship cases are considered.
Significance of the CJEU Ruling
The CJEU’s ruling in this preliminary reference case will have far-reaching implications for the application of EU law to Turkish nationals in the EU. In particular, the question of whether national regulations introduced before the entry into force of Art. 13 ARB 1/80 still fall under the earlier standstill clause is of great importance. If the CJEU were to decide that Art. 7 ARB 2/76 remains valid, this could lead to certain national regulations that make spousal reunification more difficult no longer being applicable.
Moreover, the balancing of national interests, such as migration control, with the rights of Turkish nationals plays a central role. Should the CJEU find the visa requirement justified, it could strengthen the position of Member States in shaping their immigration policies independently, even within the context of the Association Agreement.
The Hardship Clause in the Residence Act
Another crucial aspect of the case was the introduction of the hardship clause in the Residence Act (§ 30(1) sentence 3 no. 6 AufenthG). This provision allows for the waiver of the basic German language requirement if special circumstances justify it. In the present case, it was argued that the plaintiff’s health problems and illiteracy constituted such special circumstances, making it unreasonable for her to acquire the required language skills.
The hardship clause demonstrates the flexibility of German residence law, which allows exceptions to general requirements in special cases. This provision could play a significant role in future cases, particularly in balancing the protection of family rights against the legitimate interests of migration control.
Conclusions and Future Developments
The case highlights the complex interplay between national law, EU law, and the rights of third-country nationals in the context of spousal reunification. The CJEU’s decision will be pivotal for the future handling of spousal reunification for Turkish nationals in Germany and potentially in other EU Member States.
Should the CJEU rule in favor of the plaintiff, it could lead to a relaxation of the requirements for spousal reunification, particularly concerning language skills and the visa requirement. Conversely, a decision in favor of national regulations could strengthen the position of Member States in controlling migration and asserting their national interests. The legal clarification by the CJEU will thus have significant implications not only for the present case but also for the general legal framework regarding spousal reunification in the context of the Association Agreement.
Source: Federal Administrative Court
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