Mehmet Soysal and Ibrahim Savatli v Bundesrepublik Deutschland.
Date: 2009-02-19
41. Therefore, the bringing of the matter before the Court under Article 234 EC is valid (see Case C‑192/89 Sevince  [1990] ECR I‑3461, paragraphs 8 to 11, and the case-law cited), and it is irrelevant that the court making the reference for a preliminary ruling is not among those mentioned in Article 68(1) EC, which derogates from Article 234 EC.
45. With a view to determining the exact scope of Article 41(1) of the Additional Protocol in a situation such as that at issue in the main proceedings, it must be recalled, first, that, in accordance with consistent case-law, the provision has direct effect. It 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 Savas , paragraphs 46 to 54 and 71, second indent; Abatay and Others , paragraphs 58, 59 and 117, first indent, and Case C‑16/05 Tum and Dari  [2007] ECR I‑7415, paragraph 46). Consequently, the rights which Article 41(1) of the Additional Protocol confers on the Turkish nationals to whom it applies may be relied on before the courts of the Member States (see, in particular, Savas , paragraph 54, and Tum and Dari , paragraph 46).
46. Further, it must be noted that Article 41(1) of the Additional Protocol may be invoked validly by Turkish lorry drivers such as the appellants in the main proceedings who are employed by an undertaking established in Turkey that lawfully provides services in a Member State, on the ground that the employees of the provider of services are indispensable to enable him to provide his services (see Abatay and Others , paragraphs 106 and 117, fifth indent).
47. Finally, according to consistent case-law, even if the ‘standstill’ clause set out in Article 41(1) of the Additional Protocol is not, in itself, capable of conferring on Turkish nationals – on the basis of Community legislation alone – a right of establishment or, as a corollary, a right of residence, nor a right to freedom to provide services or to enter the territory of a Member State (see Savas , paragraphs 64 and 71, third indent; Abatay and Others , paragraph 62; and Tum and Dari , paragraph 52), the fact remains that such a clause prohibits generally the introduction of any new measures having the object or effect of making the exercise by a Turkish national of those economic freedoms on the territory of that Member State subject to stricter conditions than those which applied to him at the time when the Additional Protocol entered into force with regard to the Member State concerned (see Savas , paragraphs 69 and 71, fourth indent; Abatay and Others , paragraphs 66 and 117, second indent; and Tum and Dari , paragraphs 49 and 53).
48. Therefore, the Court has held that Article 41(1) of the Additional Protocol precludes the introduction into the legislation of a Member State of a requirement – not in place at the time of the entry into force of that protocol with regard to that Member State – of a work permit in order for an undertaking established in Turkey and its employees who are Turkish nationals to provide services in the territory of that State ( Abatay and Others , paragraph 117, sixth indent).
57. Under those circumstances, it must be concluded that legislation such as that at issue in the main proceedings constitutes a ‘new restriction’, within the meaning of Article 41(1) of the Additional Protocol, of the right of Turkish nationals resident in Turkey freely to provide services in Germany.
59. In this respect, it is sufficient to recall that the primacy of international agreements concluded by the Community over provisions of secondary Community legislation means that such provisions must, so far as is possible, be interpreted in a manner that is consistent with those agreements (see Case C‑61/94 Commission  v Germany  [1996] ECR I‑3989, paragraph 52).
61. The adoption of rules that apply in the same manner to Turkish nationals and to Community nationals is not inconsistent with the ‘standstill’ clause. Moreover, if such rules applied to Community nationals but not 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 Treaty.