Einführung von Gebühren für eine Aufenthaltsgenehmigung in den Niederlanden gegenüber türkischen Arbeitnehmern verstößt gegen die Standstill-Klausel aus Art. 13 ARB 1/80, da Unionsbürger wesentlich geringere Gebühren zu zahlen haben.
47 By the reference for a preliminary ruling, the referring court seeks in essence to know, first, whether a Turkish national such as Mr Sahin is a person whose presence in the host Member State is legal and therefore within the scope of Article 13 of Decision No 1/80. Second, that court asks the Court whether the standstill clause laid down in that article precludes legislation in that State which provides that a Turkish national is required to pay administrative charges for the consideration of his application to obtain a residence permit or an extension of the period of validity thereof, in particular when those charges are markedly higher than those required of Community nationals in a comparable situation. [...]
55 It is accordingly common ground that Mr Sahin complied with all the relevant national rules in relation to immigration controls and employment, from his lawful entry into the Netherlands on 12 September 2000 until 2 October 2002, when the validity of his residence permit expired. In particular, he was legally present in that Member State when the new domestic legislation entered into force, requiring the levying of administrative charges for the issue and extension of residence permits, which, according to the documents before the Court, is the sole matter at issue in the main proceedings.
56 On the information provided by the referring court, only after 3 October 2002 did Mr Sahin’s situation, as regards residence and employment, temporarily fail to comply with the requirements of the national rules, until, less than six months after the expiry of the period of validity of his residence permit, Mr Sahin applied in due form for the extension of that permit, and complied with the obligation to pay the administrative charges required for that purpose.
57 As stated by the referring court, from the date of that application, Mr Sahin’s residence in the Netherlands had, under domestic law, again to be regarded as legal. Furthermore, under that law, such a belated application for renewal had to be examined in the light of the requirements of national law relating to extension of a residence permit and not those relating to the granting of such a permit.
58 It must be added that it is not disputed that Mr Sahin would have obtained an extension of his residence permit if he had paid the administrative charges attaching to his application at the right time. There is nothing in the documents before the Court to suggest that the competent Netherlands authorities intended to put an end to Mr Sahin’s residence or were about to deport him.
59 In any event, the Court has already held that a residence permit issued by the national authorities has only declaratory and probative value and that, although Member States do indeed have the right to require that foreigners on their territory hold a valid residence permit and apply for its extension in good time and although, in principle, they retain the power to impose penalties for breach of such obligations, nevertheless Member States are not entitled to adopt in that regard measures which are disproportionate as compared with comparable domestic cases (see Case C-329/97 Ergat  ECR I-1487, paragraphs 52, 55, 56, 61 and 62).
60 It will be for the referring court to take due account of all of the particular circumstances of the case in the main proceedings in order to assess whether Mr Sahin’s presence in the host Member State must be regarded as being no longer legal, in relation to residence and employment, as required for the application of Article 13 of Decision No 1/80.
61 On the assumption that that condition of legality is satisfied in the present case, it is necessary to rule on the second part of the reference, set out in paragraph 47 of this judgment, relating to the exact significance of the standstill clause of Article 13 of Decision No 1/80.
The scope of the standstill clause in Article 13 of Decision No 1/80
62 In that regard, it must first be observed that it is clear from settled case-law of the Court that Article 13 of Decision No 1/80 may be validly relied on before the courts and tribunals of Member States by the Turkish nationals to whom it applies to prevent the application of rules of national law that conflict with it (see Case C-192/89 Sevince  ECR I-3461, paragraph 26, and Abatay and Others, paragraphs 58 and 59 and the first indent of paragraph 117).
63 It is also settled case-law that the standstill clause enacted in Article 13 prohibits generally the introduction of any new measure having the object or effect of making the exercise by a Turkish national in its territory of the freedom of movement for workers subject to more restrictive conditions than those which applied at the time when Decision No 1/80 entered into force with regard to the Member State concerned (see Abatay and Others, paragraph 66, and the second indent of paragraph 117, and by analogy, as regards the standstill clause in relation to freedom of establishment and freedom to provide services in Article 41(1) of the Additional Protocol, Case C-228/06 Soysal and Savatli  ECR I-0000, paragraph 47).
64 The Court has therefore more specifically held that Article 41(1) of the Additional Protocol prohibits the introduction, as from the date of entry into force of the legal act of which that provision forms part in the host Member State, of any new restrictions on the exercise of freedom of establishment or freedom to provide services, including those relating to the substantive and/or procedural conditions governing the first admission to the territory of that Member State of Turkish nationals intending to make use of those economic freedoms (see Case C-16/05 Tum and Dari  ECR I-7415, paragraph 69, and Soysal and Savatli, paragraphs 47 and 49). [...]
66 In the present case, the referring court has already made the finding that the domestic legislation in question must be considered to be ‘new’ within the meaning of Article 13 of Decision No 1/80, given that the legislation was adopted after the entry into force of that decision.
67 The Court has however also ruled in this connection that the adoption of new rules which apply in the same way both to Turkish nationals and to Community nationals is not inconsistent with any of the standstill clauses laid down in the fields covered by the EEC-Turkey Association (see, by analogy, as regards Article 41(1) of the Additional Protocol, Soysal and Savatli, paragraph 61). The Court added, in the same paragraph of that judgment, that, if such rules applied to nationals of Member States but not to Turkish nationals, Turkish nationals would be put in a more favourable position than Community nationals, which would be clearly contrary to the requirement of Article 59 of the Additional Protocol, according to which the Republic of Turkey may not receive more favourable treatment than that which Member States grant to one another pursuant to the EC Treaty. [...]
72 It is clear from the order for reference that, at the material time in the case in the main proceedings, Turkish nationals were required, under the Netherlands legislation, to pay a sum amounting to EUR 169 for the processing of an application for a residence permit or extension thereof, whereas the amount which Community nationals could be charged in the Netherlands for the processing of a similar application was only EUR 30. Moreover, it is common ground that the period of validity of the documents in question is in some cases shorter when they are issued to Turkish nationals, with the result that Turkish nationals are obliged to apply for the renewal of such documents more often than Community nationals and that, consequently, the financial impact on the former is significant, the more so since, if the application is rejected, the sum paid is not refunded.
73 In that regard, in neither its written observations lodged with the Court nor in response to questions put to it at the hearing has the Netherlands Government advanced any relevant argument capable of justifying such a significant difference between the amounts of the administrative charges imposed on Turkish nationals and those provided for in relation to Community nationals. It must be added in that context that the Court cannot accept the argument of the Netherlands Government that the enquiries and checks required before a residence document can be issued to a Turkish national are more complex and more costly than those needed in respect of a Community national, given that, under the Netherlands legislation concerned, payment of the administrative charge must be made before the application for a residence permit or extension thereof is even considered, and that, furthermore, there is nothing to prevent a Member State from requiring the applicant himself to submit to the competent authorities a dossier containing all the supporting documents required for such an application.
74 It must therefore be concluded that national legislation such as that at issue in the main proceedings constitutes a restriction prohibited by Article 13 of Decision No 1/80 to the extent that, before an application for the grant of a residence permit or extension thereof can be considered, the legislation requires payment, by Turkish nationals to whom Article 13 applies, of administrative charges of an amount which is disproportionate as compared with that demanded in similar circumstances from Community nationals.
75 In light of all of the foregoing the answer to be given to the questions referred is that Article 13 of Decision No 1/80 must be interpreted as precluding the introduction, from the entry into force of that decision in the Member State concerned, of national legislation, such as that at issue in the main proceedings, which makes the granting of a residence permit or an extension of the period of validity of such a permit conditional on payment of administrative charges, where the amount of those charges payable by Turkish nationals is disproportionate as compared with the amount required from Community nationals. [...]
On those grounds, the Court (First Chamber) hereby rules:
Article 13 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, must be interpreted as precluding the introduction, from the entry into force of that decision in the Member State concerned, of national legislation, such as that at issue in the main proceedings, which makes the granting of a residence permit or an extension of the period of validity thereof conditional on payment of administrative charges, where the amount of those charges payable by Turkish nationals is disproportionate as compared with the amount required from Community nationals.