Family reunification under the standstill clauses of EU-Turkey Association Law: Genc

Abstract

The Association with Turkey entered its final stage with the establishment of the Customs Union regarding free movement of goods;1 the instruments of the transitional stage, however, are the ones that govern the free movement of workers, services and establishment, namely the two Association Council Decisions adopted in 1980 and the Additional Protocol (AP) to the Association Agreement.2 There have been developments facilitating free movement in these latter areas for the last 15 years.3 However, these developments were not triggered by the adoption of new Association Council Decisions or Protocols, but merely by the removal of obstacles that had been introduced contrary to the standstill obligation in these areas.4 Genc is also such a case. It concerns a Danish Law introduced in 2004 that makes family reunification more difficult for children whose parents do not apply for reunification within the two-year period following the date on which they obtain permanent residence in Denmark. The ECJ delivered a judgment on another family reunification case two years ago. Dogan concerned a family reunification measure introduced by Germany (the requirement to pass a German language test in the country oforigin) in contravention to the standstill clause on freedom of establishment (Art. 41(1) AP).5 The Court ruled that such a measure constituted a “new restriction” under the standstill clause and that Germany was not able to justify it, because it was disproportionate and went beyond what was necessary to achieve the aim of “preventing forced marriages and the promotion of integration”.6 Dogan was the first case in which the Court established that family reunification fell within the scope of a standstill clause, and the Danish court and government sought to challenge that finding so as to prevent it from becoming established case law. They asked the ECJ to reconsider its judgment in light of its recent case law (in particular Ziebell and Demirkan),7 in which it adopted a more restrictive approach to interpreting provisions of Association Law, after discarding the previously acknowledged objective of accession and replacing it with an “exclusively economic” one.At the request of the Danish Government, the Court delivered the judgment in a Grand Chamber. It in fact confirmed not only that family reunification fell within the scope of the standstill clauses, but also the changing nature or softening of those clauses. While these clauses were initially interpreted as clauses containing an absolute prohibition on “new restrictions”, under the new line of case law, they are much softer, allowing for derogations and justifications replicating those under the EU free movement rules.