The Queen, Veli Tum and Mehmet Dari v Secretary of State for the Home Department.
Date: 2007-09-20
46. In that context, it is not disputed that Article 41(1) of the Additional 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 (see Savas , paragraphs 46 to 54 and 71, second indent, and Joined Cases C-317/01 and C-369/01 Abatay and Others  [2003] ECR I-12301, paragraphs 58, 59 and 117, first indent).
49. In that context, it is clear from the case-law of the Court that the ‘standstill’ clause 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 (see Savas , paragraph 69, and Abatay and Others , paragraph 66).
52. As regards the meaning of the ‘standstill’ clause set out in Article 41(1) of the Additional Protocol, it is also apparent from the case-law that neither that clause nor the provision containing it are, in themselves, capable of conferring upon a Turkish national a right of establishment or, as a corollary, a right of residence derived directly from Community provisions (see Savas , paragraphs 64 to 71, third indent, and Abatay and Others , paragraph 62). The same finding also applies as regards the first entry of a Turkish national into the territory of a Member State.
53. On the other hand, in accordance with that case-law, such a ‘standstill’ clause is to be understood as prohibiting the introduction of any new measures having the object or effect of making the establishment of Turkish nationals in a Member State subject to stricter conditions than those which resulted from the rules which applied to them at the time when the Additional Protocol entered into force with regard to the Member State concerned (see Savas , paragraphs 69, 70 and 71, fourth indent, and Abatay and Others , paragraphs 66 and 117, second indent).
57. While it is true that it is apparent from that case-law that, as Community law stands at present, a Turkish national’s first admission to the territory of a Member State is, as a rule, governed exclusively by that State’s own domestic law (see, inter alia, Savas , paragraphs 58 and 65, and Abatay and Others , paragraphs 63 and 65), the Court made that finding for the sole purpose of giving a negative answer to the question whether the ‘standstill’ clause in Article 41(1) of the Additional Protocol could, as such, confer the benefit of certain positive rights in respect of freedom of establishment upon a Turkish national ( Savas , paragraphs 58 to 67, and Abatay and Others , paragraphs 62 to 65).
58. However, that ‘standstill’ 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, by analogy, Case C-372/04 Watts  [2006] ECR I-4325, paragraph 121).
61. It must be added that Article 41(1) of the Additional Protocol 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 thus appears to be the necessary corollary to Article 13 of the Association Agreement, and constitutes the indispensable precondition for achieving the progressive abolition of national restrictions on freedom of establishment ( Abatay and Others , paragraphs 68 and 72). Even if, initially, with a view to the progressive implementation of that freedom, existing national restrictions as regards establishment may be retained (see, by analogy, Case 77/82 Peskeloglou  [1983] ECR 1085, paragraph 13, and Abatay and Others , paragraph 81), it is important to ensure that no new obstacle is introduced in order not to further obstruct the gradual implementation of such freedom of establishment.
62. To date, it is true, the Association Council has not adopted any measure on the basis of Article 41(2) of the Additional Protocol with a view to the actual removal by the Contracting Parties of existing restrictions on freedom of establishment, in accordance with the principles set out in Article 13 of the Association Agreement. Furthermore, it is apparent from the case-law of the Court that neither of those two provisions has direct effect ( Savas , paragraph 45).
64. Lastly, as regards the alternative argument of the United Kingdom Government that failed asylum seekers such as the applicants in the main proceedings should not be allowed to rely on Article 41(1) of the Additional Protocol, since any other interpretation would be tantamount to endorsing fraud or abuse, it must be borne in mind that, according to settled case-law, Community law cannot be relied on for abusive or fraudulent ends (Case C-255/02 Halifax and Others  [2006] ECR I‑1609, paragraph 68) and that the 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 Community law on which they seek to rely (see inter alia Case C-212/97 Centros  [1999] ECR I-1459, paragraph 25).
69. Having regard to all the foregoing considerations, the answer to the question referred for a preliminary ruling must be that 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.
Costs