Keywords

Summary



Keywords

1. International agreements - Agreements concluded by the Community - Direct effect - Conditions - Article 13 of the EEC-Turkey Association Agreement and Article 41(2) of the Additional Protocol not directly effective - Direct effect of Article 41(1) of the Additional Protocol

(EEC-Turkey Association Agreement, Art. 13; Additional Protocol to the EEC-Turkey Association Agreement, Art. 41(1) and (2))

2. International agreements - EEC-Turkey Association Agreement - Freedom of movement for persons - Freedom of establishment - Standstill rule in Article 41(1) of the Additional Protocol - Scope - Prohibition on Member States introducing new restrictions on the establishment, and correspondingly the residence, of Turkish workers on national territory

(Additional Protocol to the EEC-Turkey Association Agreement, Art. 41(1))

Summary

1. A provision in an agreement concluded by the Community with non-member countries must be regarded as being directly applicable when, having regard to its wording and to the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure.

Although those conditions are not fulfilled either by Article 13 of the Agreement establishing an Association between the EEC and Turkey, which does no more than lay down in general terms, with reference to the corresponding provisions of the Treaty, the principle of eliminating restrictions on freedom of establishment between the contracting parties, and does not itself establish precise rules for the purposes of attaining that objective, or by Article 41(2) of the Additional Protocol, no measures having been adopted under that latter provision for the concrete implementation of the general principle that obstacles to the right of establishment between the contracting parties are to be gradually abolished, that does not apply to Article 41(1) of the Additional Protocol, which lays down, clearly, precisely and unconditionally, an unequivocal standstill clause, prohibiting the contracting parties from introducing new restrictions on the freedom of establishment as from the date of entry into force of the Additional Protocol. That provision lays down a precise and unconditional principle that is sufficiently operational to be applied by a national court and therefore capable of governing the legal position of individuals. The direct effect which must therefore be accorded to that provision implies that the individuals to which it applies have the right to rely on it before the courts of Member States.

( see paras 39, 42, 44, 46, 54, 71 and operative part )

2. The principles established in the context of the interpretation of the provisions of the EEC-Turkey Association Agreement for the progressive achievement of free movement of Turkish workers in the Community, must also apply, by analogy, in the context of the provisions of that Association Agreement concerning the right of establishment. It follows that the standstill clause in Article 41(1) of the Additional Protocol to the EEC-Turkey Agreement is not in itself capable of conferring upon a Turkish national the benefit of the right of establishment and the right of residence which is its corollary. A Turkish national's first admission to the territory of a Member State is therefore governed exclusively by that State's own domestic law, and the person concerned may claim certain rights under Community law in relation to holding employment or exercising self-employed activity, and, correlatively, in relation to residence, only in so far as his position in the Member State concerned is regular.

In consequence, Article 41(1) of the Additional Protocol is not in itself capable of conferring upon a Turkish national a right of establishment and, as a corollary, a right of residence in the Member State in whose territory he has remained and carried on business activities as a self-employed person in breach of the domestic immigration law. That provision does, however, prohibit the introduction of new national restrictions on the freedom of establishment and right of residence of Turkish nationals as from the date on which that protocol entered into force in the host Member State.

( see paras 63-65, 69, 71 and operative part )