The Queen v Secretary of State for the Home Department, ex parte Abdulnasir Savas.
Date: 2000-05-11
39 This Court has consistently held that 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 (see, in particular, Case C-262/96 Sürül v Bundesanstalt für Arbeit [1999] ECR I-2685, paragraph 60).
41 It should be noted that the Court has already held that Article 12 of the Association Agreement essentially serves to set out a programme and that its provisions are not sufficiently precise and unconditional to constitute rules of Community law directly applicable in the internal legal order of the Member States (Case 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719, paragraphs 23 and 25).
45 In those circumstances, the conclusion must be that Article 13 of the Association Agreement is no more capable than is Article 41(2) of the Additional Protocol, also referred to by the national court, of directly governing the legal position of individuals and cannot therefore have direct effect.
The direct effect of Article 41(1) of the Additional Protocol
46 As its very wording shows, this provision 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.
47 The Court has already held that Article 53 of the EC Treaty (repealed by the Treaty of Amsterdam), prohibiting Member States from introducing any new restrictions on the right of nationals of other Member States to establish themselves in their territories, contains an obligation entered into by the Member States which amounts in law to a duty not to act. The Court has held that such an express prohibition, which is neither subject to any conditions, nor, as regards its execution or effect, to the adoption of any other measure, is legally complete in itself and therefore capable of producing direct effects on the relations between Member States and individuals (Case 6/64 Costa v ENEL [1964] ECR 585, at p. 596).
48 Since the wording of Article 41(1) of the Additional Protocol is almost identical to that of Article 53 of the EC Treaty, it must be regarded as being directly applicable for the same reasons.
49 Moreover, in the particular context of the EEC-Turkey Association, that interpretation is confirmed by the case-law of the Court to the effect that the standstill clauses set out in Article 7 of Decision No 2/76 of the Association Council of 20 December 1976 on the implementation of Article 12 of the Ankara Agreement (not published) and Article 13 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association (not published) have a direct effect between Member States as regards the introduction of new restrictions on the access to employment of workers legally resident and employed in the territory of the contracting States (Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461, paragraphs 18 and 26).
50 In those circumstances, there is no reason not to confer such direct effect on Article 41(1) of the Additional Protocol, which is, in relation to freedom of establishment, a provision of the same kind as those mentioned in the previous paragraph.
51 Furthermore, the finding that the prohibition of new restrictions on freedom of establishment laid down by Article 41(1) of the Additional Protocol is capable of directly governing the legal position of individuals is not invalidated by an examination of the purpose and subject-matter of the Association Agreement in the context of which that provision must be interpreted.
52 The purpose of that Agreement is to establish an association designed to promote the development of trade and economic relations between the contracting parties, including, in the area of self-employment, the progressive abolition of restrictions on freedom of establishment, so as to improve the living conditions of the Turkish people and facilitate the accession of the Republic of Turkey to the Community at a later date (see the fourth recital in the preamble and Article 28 of the Association Agreement).
53 Moreover, the fact that the Association Agreement is intended essentially to promote the economic development of Turkey and therefore involves an imbalance in the obligations assumed by the Community towards the non-member country concerned does not prevent the Community from recognising some of its provisions as having direct effect (see Sürül, cited above, at paragraph 72, and, by analogy, Case 87/75 Bresciani v Amministrazione delle Finanze [1976] ECR 129, paragraph 23; Case C-18/90 Office National de l'Emploi v Kziber [1991] ECR I-199, paragraph 21; and Case C-469/93 Amministrazione delle Finanze dello Stato v Chiquita Italia [1995] ECR I-4533, paragraph 34).
54 It follows from the considerations set forth above that Article 41(1) of the Additional Protocol 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.
58 As regards, first, the argument put forward by Mr Savas in his written observations, the first point to be made is that this Court has consistently held that, as Community law stands at present, the provisions concerning the EEC-Turkey Association do not encroach upon the competence retained by the Member States to regulate both the entry into their territories of Turkish nationals and the conditions under which they may take up their first employment, but merely regulate the situation of Turkish workers already lawfully integrated into the labour force of Member States (see, in particular, Case C-171/95 Tetik v Land Berlin [1997] ECR I-329, paragraph 21).
59 Next, the Court has repeatedly held that, unlike nationals of Member States, Turkish workers are not entitled to move freely within the Community but benefit only from certain rights in the host Member State whose territory they have lawfully entered and where they have been in legal employment for a specific period (see, in particular, Tetik, paragraph 29).
60 Finally, it is true that the employment rights thus conferred on Turkish workers necessarily imply the existence of a corresponding right of residence for the persons concerned, since otherwise the right of access to the labour market and the right to work as an employed person would be rendered entirely ineffective (see, to that effect, Sevince, cited above, paragraph 29; Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781, paragraph 29; Case C-434/93 Bozkurt v Staatssecretaris van Justitie [1995] ECR I-1475, paragraph 28; Case C-340/97 Nazli v Stadt Nürnberg [2000] ECR I-957, paragraph 28) and that such persons may therefore claim an extension of their residence in the Member State concerned in order to continue lawful employment there (see, in particular, Kus, paragraph 36; Case C-36/96 Günaydin v Freistaat Bayern [1997] ECR I-5143, paragraph 55; Case C-98/96 Ertanir v Land Hessen [1997] ECR I-5179, paragraph 62; Case C-1/97 Birden v Stadtgemeinde Bremen [1998] ECR I-7747, paragraph 69). However, according to that same case-law, the legality of a Turkish national's employment in the host Member State presupposes a stable and secure situation as a member of the labour force of that Member State and, by virtue thereof, entails an undisputed right of residence (Sevince, paragraph 30; Kus, paragraphs 12 and 22; Bozkurt, paragraph 26).
61 In this context, the Court has held that periods in which a Turkish national is employed under a residence permit which was issued to him only as a result of fraudulent conduct which has led to a conviction are not based on a stable situation and such employment cannot be regarded as having been secure in view of the fact that, during the periods in question, the person concerned was not legally entitled to a residence permit (Case C-285/95 Kol v Land Berlin [1997] ECR I-3069, paragraph 27).
62 In paragraph 28 of its judgment in Kol, the Court held more particularly that employment held by a Turkish national under a residence permit obtained in fraudulent circumstances of that kind could not possibly give rise to any rights in his favour.
63 These 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.
64 It follows, as the Commission has rightly pointed out, that the standstill clause in Article 41(1) of the Additional Protocol 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.
65 So, a Turkish national's first admission to the territory of a Member State is 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.
66 In the case before the national court, according to the order for reference, after expiry of his tourist visa, the validity of which was limited to one month, Mr Savas did not obtain any further authorisation to remain in the United Kingdom and thus continued to reside there in breach of domestic law. Moreover, his visa expressly forbade him from taking employment or engaging in any form of business activity whatsoever in that Member State.
67 In those circumstances, the fact that Mr Savas did not leave the United Kingdom after expiry of his visa and did engage in business as a self-employed person in that Member State, without authorisation, cannot confer upon him either a right of establishment or a right of residence derived directly from Community provisions.
68 As regards, second, the line of argument taken by Mr Savas at the hearing before the Court, it is important to remember, first, that the direct effect to be attributed to Article 41(1) of the Additional Protocol implies that that provision confers on individuals individual rights which the national courts must safeguard.
69 It should also be noted that the standstill clause in Article 41(1) of the Additional Protocol precludes a Member State from adopting any new measure having the object or effect of making the establishment, and, as a corollary, the residence of a Turkish national in its territory subject to stricter conditions than those which applied at the time when the Additional Protocol entered into force with regard to the Member State concerned.
70 It is therefore for the national court, which alone has jurisdiction to interpret its own domestic law, to determine whether the domestic rules applied to Mr Savas by the competent authorities have the effect of worsening his position in comparison with the rules which were applicable in the United Kingdom on the date on which the Additional Protocol entered into force in relation to that Member State.
71 In the light of all the considerations set forth above, the answer to the first three questions must be as follows:
- Article 13 of the Association Agreement and Article 41(2) of the Additional Protocol do not constitute rules of Community law that are directly applicable in the internal legal order of Member States.
- Article 41(1) of the Additional Protocol has direct effect in Member States.
- 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.
- However, Article 41(1) of the Additional Protocol prohibits 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. It is for the national court to interpret domestic law for the purposes of determining whether the rules applied to the applicant in the main proceedings are less favourable than those which were applicable at the time when the Additional Protocol entered into force.
The fourth, fifth and sixth questions