Vice-President of Court R Silva de Lapuerta (Rapporteur),
Judges C Toader, A Rosas, M Safjan
Advocate General G Pitruzzella
One of the aims of the EEC-Turkey Association Agreement 1963, approved by Council Decision 64/732/EEC, was to secure freedom of movement for workers between the member states and Turkey. The Agreement was implemented by, inter alia, Association Council Decision No 1/80, article 13 of which constituted a standstill clause prohibiting the introduction of any new national measure having the object or effect of making the exercise by a Turkish national of the freedom of movement for workers in a member state subject to conditions more restrictive than those which had applied at the time when that Decision entered into force. Article 13 of Decision No 1/80 applied ratione temporis to national measures introduced after 1 December 1980.
Dutch law, amended in December 2013, imposed a requirement that, in order to obtain a temporary residence permit for longer than 90 days, third-country nationals, including Turkish nationals, had to provide biometric data comprising ten fingerprints and a facial image. The first applicant, a Turkish national, applied for a temporary residence permit which was granted once he had provided the biometric data. The second applicant was a Turkish national whose spouse, the third applicant, was resident in the Netherlands and had dual Turkish and Netherlands nationality. The third applicant submitted an application for a temporary residence permit for her husband for the purpose of family reunification which was granted subject to the same condition as the first applicant. The applicants’ appeals against the decisions requiring the collection of biometric data were dismissed. On further appeal, a Dutch court found that the national rule requiring the collection, recording and retention of the biometric data of Turkish nationals in a central filing system was a “new restriction” within the meaning of, inter alia, article 13 of Decision No 1/80 and that the measure was not proportionate in view of the legitimate objective pursued, namely preventing and combating identity and document fraud. Consequently, that court annulled the decisions to the extent that they required the collection of biometric data and ordered the Netherlands Secretary of State to remove that data from the central filing system. The Secretary of State appealed to the Dutch referring court, which stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling questions on the interpretation of, inter alia, article 13 of Decision No 1/80.
On the reference—
Held, since the national rule in issue in the present case was introduced subsequent to the date on which Decision No 1/80 had entered into force in The Netherlands, that rule fell within the scope ratione temporis of article 13 of the Decision. The national rule in issue made the conditions for first entry into Netherlands territory that applied to Turkish nationals more restrictive than those which applied to them at the time when Decision No 1/80 entered into force in The Netherlands and, therefore, constituted a “new restriction” within the meaning of article 13. Such a restriction was prohibited, unless it fell within the restrictions in article 14 of that Decision or was justified by an overriding reason in the public interest, was suitable to achieve the legitimate objective pursued and did not go beyond what was necessary in order to attain it. The scope of the national rule in issue appeared to ensure the effective achievement of the objective pursued and the rule did not go beyond what was necessary to achieve the objective of preventing and combating identity and document fraud. Accordingly, a national rule, such as that in issue, which made the issuance of a temporary residence permit to third-country nationals, including Turkish nationals, conditional upon the collection, recording and retention of their biometric data in a central filing system, constituted a “new restriction” within the meaning of article 13 of Decision No 1/80. Such a restriction was, however, justified by the objective of preventing and combating identity and document fraud (judgment, paras 35, 36, 41, 43–44, 51, 61, 69, 70, operative part, para 1).
D Schaap for the applicants.
MK Bulterman and MAM de Ree, agents, for the Netherlands Government.
David Blundell (instructed by The Treasury Solicitor) for the United Kingdom Government.
J Nymann-Lindegren, M Wolff and P Ngo, agents, for the Danish Government.
David Fennelly (instructed by Chief State Solicitor) for Ireland.
G Wils, D Martin and H Kranenborg, agents, for the European Commission.