Case Notes
| DOI | 10.1177/1023263X1001700207 |
| Date | 01 June 2010 |
| Published date | 01 June 2010 |
| Subject Matter | Case Notes |
188 17 MJ 2 (2010)
CASE NOTES
(Second Chamber) of 29 April 2010
§1. INTRODUCTION
On 29 April, 2010 the Court of Justice of the European Union (CJEU) issued a judgment1 on
the scope and interpretation of the sta ndstill clauses and non-discri mination provisions
contained in the EEC-Turkey Association Agreement (AA), the Additional Protocol
(AD) and Decision No 1/80. Even though the case concerned the conformit y of Dutch
legislation on fees for residence permits with these lega l documents, the implications of
the judgment are much wider. e CJEU had to rule on the general scope of the standstill
clause and the possibility of Member States to discriminate between Turkish national s
and EU citi zens. e Court made some crucial remarks on theses matters, i nterpreting
the relevant provisions extensively and limiting the scope of discretion of Member States
in applying national im migration law to Turkish citizens.
§2. FACTUAL AND LEGAL BACKGROUND
On 16 February, 2007 the European C ommission brought infringement proceedings
against the Netherla nds,2 claiming that the charge s imposed upon Turkish nationals for
obtaining and extending a residence per mit were contrar y to the standstill clause and
non-discriminat ion provisions contai ned in t he EEC-Turkey A ssociation Agreement,3
1 Case C-92/07 Commi ssion v. e Netherlands [2010] ECR I-00 00.
2 Article 258 T FEU.
3 Agreement establish ing a n Ass ociation between the European Economic Communit y and Turkey,
signed at Ankara on 12 September 1963 by the Republic of Turkey, on the one hand, and by the Member
States of the EE C and the Communit y, on the other hand, and c oncluded, approved and con rmed on
behalf of the Com munity by Council Decis ion 64/732/EEC of 23 December 1963 (JO 1964 217, p. 3685;
English version pub lished in OJ 1973 C 113, p. 1).
Case Notes
17 MJ 2 (2010) 189
the Additional Protocol4 and Decision No 1/80.5 Art icle 9 of the Association Agreement
lays down the genera l principle of non-discrimination on grounds of nationa lity
between Turkish nationals and national s of the Member States. Article 10(1) of Decision
No. 1/80 implements and gives specic expression to this genera l principle,6 prohibiting
discrimi nation agai nst Turkish workers on the basi s of their nationality concerning
remuneration and other working conditions. is provision has direct eect, as conrmed
by the Court in the case Wählergr uppe Gemeinsam.7 Moreover, Turkish nationals are
protected from t he introduction of more restric tive national legislation by virtue of the
standstil l clauses applicable to Turkish workers, service providers and self-employees.
Article 41 of the Protocol contains a prohibition to introduce any new rest rictions on
the f reedom of establ ishment and t he freedom to provide serv ices. A si milar wording
can be found in Article 13 of Decision No 1/80, which prohibits the i ntroduction of any
new restrictions on the conditions of acces s to employment applicable to legally resident
workers and members of their fami lies.
e contested Dutch legislation imposes charges upon Turkish nationals for the
processing of an application for entry and residence in the Netherlands. At the time
when the Association Agreement and Decision No 1/80 were concluded the Netherlands
did not require the payment of charges when an applic ation for a residence permit or an
application to ex tend the period of validity of such a permit was being submitted. i s
changed i n 1993, when a requirement to pay a fee for the processing of an application
for a residence p ermit was introduced. Aer a recast of the Dutch Aliens Law in 20008
and severa l amendments to this law in the following years, as o 1 July, 2005 Turkish
nationals have been required to pay between 52 a nd 830 for a residence permit. At
the same time, Union citi zens have had to pay not more than 30 for a registration
certicate or a document cer tifying permanent residence, in complia nce with Article
25(2) of Directive 2004/38/EC.9
On the basis of a complaint made by a Turkish nationa l, the European Commis sion
brought infringement proceedings against the Netherlands. e explicit question to
4 Additional Proto col, signed on 23 November 1970 at Brussel s and concluded, approved and con rmed
on behalf of the Community by Council Reg ulation (EEC) No 2760/72 of 19 December 1972 (JO 1972
L 293, p. 1; English version publi shed in OJ 1977 L 361, p. 60).
5 Decision No 1/80, adopted on 19 Se ptember 1980 by t he Associ ation Counc il, which was set up by
the Association Agreement and consists, on the one hand, of members of the Gove rnments of the
Member States, of t he Council of the Europ ean Union and of the Comm ission and, on the other h and,
of members of the Turkish Gove rnment.
6 Case C-171/01 Wählergruppe Ge meinsam [2003] ECR I-4301, para. 59; see a lso by analogy Ca se
C-262/96 Sürül [1999] ECR I-2685, para. 64.
7 Case C-171/01 Wählergruppe Ge meinsam [2003] ECR I-4301, para. 9 4.
8 Wet tot algehele herzieni ng van de Vreemdelingenwet; Stb. 20 00, No 495.
9 Article 25(2) of Di rective 2004/38/ EC of 29 April 20 04 on the rights of citizens of t he Union and their
family memb ers to move and reside freely w ithin the terr itory of the Member State s, OJ 2004 L 229/35
provides that a ny such documents shall be issued free of char ge or for a charge not exceedin g that
imposed on nationa ls for the issuing of si milar documents .
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