Keywords

Summary



Keywords

1. International agreements – EEC-Turkey Association Agreement – Freedom of movement for persons – Freedom of establishment – Standstill rule in Article 41(1) of the Additional Protocol

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

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

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

Summary

1. Article 41(1) of the Additional Protocol to the EEC-Turkey Association Agreement which prohibits the Contracting Parties from introducing new restrictions on the freedom of establishment as from the date of entry into force of that protocol, has direct effect in the Member States, so that the rights which it confers on the Turkish nationals to whom it applies may be relied on before the national courts to prevent the application of inconsistent rules of national law. That provision lays down, clearly, precisely and unconditionally, an unequivocal ‘standstill’ clause, which contains an obligation entered into by the contracting parties which amounts in law to a duty not to act.

That clause operates not in the same way as a substantive rule by rendering inapplicable the relevant substantive law on entry into the territory of a Member State which it replaces, but as a quasi-procedural rule which stipulates, ratione temporis , which are the immigration provisions of a Member State's legislation that must be referred to for the purposes of assessing the position of a Turkish national who wishes to exercise freedom of establishment in a Member State.

Thus, that clause does not call into question the competence, as a matter of principle, of the Member States to conduct their national immigration policy. The mere fact that, as from its entry into force, such a clause imposes on those States a duty not to act which has the effect of limiting, to some extent, their room for manœuvre on such matters does not mean that the very substance of their sovereign competence in respect of aliens should be regarded as having been undermined.

(see paras 46, 55, 58)

2. Article 41(1) of the Additional Protocol to the EEC-Turkey Association Agreement is intended to create conditions conducive to the progressive establishment of freedom of establishment by way of an absolute prohibition on national authorities from creating any new obstacle to the exercise of that freedom by making more stringent the conditions which exist at a given time, so as not to render more difficult the gradual securing of that freedom between the Member States and the Republic of Turkey. That provision of the Additional Protocol constitutes the necessary corollary to Article 13 of the Association Agreement, whereas that latter article does not produce any direct effect and, to date, the Association Council has not adopted any measure on the basis of Article 41(2) of the Additional Protocol – a provision also without direct effect – with a view to the actual removal by the Contracting Parties of existing restrictions on freedom of establishment. In addition, it refers in a general way to new restrictions on the freedom of establishment, and, unlike the standstill clause applicable to Turkish workers, does not limit its sphere of application by excluding certain specific aspects from the sphere of protection thus afforded.

Therefore, Article 41(1) of the Additional Protocol is to be interpreted as prohibiting the introduction, as from the entry into force of that protocol with regard to the Member State concerned, of any new restrictions on the exercise of freedom of establishment, including those relating to the substantive and/or procedural conditions governing the first admission to the territory of that State, of Turkish nationals intending to establish themselves in business there on their own account.

(see paras 60-62, 69, operative part)