Tural Oguz v Secretary of State for the Home Department.
Date: 2011-07-21
22. 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  [2007] ECR I-7415, paragraph 69, and Case C‑92/07 Commission  v Netherlands  [2010] ECR I-0000, paragraph 47).
23. It is settled law that Article 41(1) of the Additional Protocol has direct effect in the Member States and, accordingly, 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 (see Case C-37/98 Savas  [2000] ECR I-2927, paragraphs 46 to 54, and Case C-228/06 Soysal and Savatli  [2009] ECR I-1031, paragraph 45).
25. It is clear from the case-law of the Court that EU law cannot be relied on for abusive or fraudulent ends and that national courts may, case by case, take account – on the basis of objective evidence – of abuse or fraudulent conduct on the part of the persons concerned in order, where appropriate, to deny them the benefit of the provisions of EU law. However, the national courts must assess such conduct in the light of the objectives pursued by the provisions of EU law concerned (see Case C-212/97 Centros  [1999] ECR I-1459, paragraph 25, and Case C‑436/00 X and Y [2002] ECR I-10829, paragraph 42).
27. The standstill clause embodied in Article 41(1) of the Additional Protocol is intended to create conditions conducive to the progressive establishment of the right of establishment by imposing an absolute prohibition on national authorities, barring them from creating new obstacles 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 (see Tum and Dari , paragraph 61, and Joined Cases C-300/09 and C-301/09 Toprak and Oguz [2010] ECR I-0000, paragraph 53).
28. A standstill clause, such as that embodied in Article 41(1) of the Additional Protocol, does not operate in the same way as a substantive rule by rendering inapplicable the relevant substantive law which it replaces, but as a quasi-procedural rule which specifies, ratione temporis , the 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 ( Tum and Dari , paragraph 55).
36. In Kondova , which concerned the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part, concluded and approved on behalf of the Community by Decision 94/908/ECSC, EC, Euratom of the Council and the Commission of 19 December 1994 (OJ 1994 L 358, p. 1; ‘the EC-Bulgaria Association Agreement’), the Court held that if Bulgarian nationals were allowed to apply at any time for establishment in the host Member State, notwithstanding a previous infringement of its national immigration legislation, such nationals might be encouraged to remain illegally within the territory of that State and not to submit to the national system of control until the substantive requirements under that legislation had been satisfied (see Kondova , paragraph 77).
37. The Court also made it clear that such an interpretation would risk depriving Article 59(1) of the EC-Bulgaria Association Agreement of its effectiveness and opening the way to abuse by endorsing infringements of national legislation on the admission and residence of foreigners ( Kondova , paragraph 79).
38. On the basis of those considerations, the Court held that a Bulgarian national who intends to take up an activity in a Member State as an employed or self-employed person but who circumvents the relevant national controls by falsely declaring that he is entering that Member State for the purpose of seasonal work places himself outside the sphere of protection afforded to him under the association agreement in question ( Kondova , paragraph 80).