Leyla Ecem Demirkan v Bundesrepublik Deutschland.
Date: 2013-09-24
34. At paragraph 10 of the judgment in Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, the Court interpreted the notion of ‘freedom to provide services’ within the meaning of Article 59 of the EEC Treaty (subsequently Article 59 of the EC Treaty, which, in turn, after amendment, became Article 49 EC), which now corresponds to Article 56 TFEU. It found that, in order to enable services to be provided, the person providing the service may go to the Member State where the person for whom it is provided is established or else the latter may go to the State in which the person providing the service is established. It stated, inter alia, that whilst the former case is expressly mentioned in the third paragraph of Article 60 of the EEC Treaty (subsequently the third paragraph of Article 60 of the EC Treaty, which in turn became the third paragraph of Article 50 EC), which now corresponds to the third paragraph of Article 57 TFEU and permits the person providing the service to pursue his activity temporarily in the Member State where the service is provided under the same conditions as are imposed by that State on its own nationals, the latter case is the necessary corollary thereof, which fulfills the objective of liberalising all gainful activity not covered by the free movement of goods, persons and capital.
35. Accordingly, it is the Court’s established case-law that the freedom to provide services conferred by Article 56 TFEU on Member State nationals, and thus on European Union citizens, includes ‘passive’ freedom to provide services, namely the freedom for recipients of services to go to another Member State in order to receive a service there, without being hindered by restrictions ( Luisi and Carbone , paragraph 16; Case 186/87 Cowan [1989] ECR 195, paragraph 15; Bickel and Franz , paragraph 15; Case C-348/96 Calfa  [1999] ECR I-11, paragraph 16; and Case C‑215/03 Oulane  [2005] ECR I‑1215, paragraph 37).
36. Article 56 TFEU therefore covers all European Union citizens who, independently of other freedoms guaranteed by the FEU Treaty, visit another Member State where they intend or are likely to receive services (see, to that effect, Bickel and Franz , paragraph 15). According to that case-law, tourists, persons receiving medical treatment and persons travelling for the purpose of education or business are to be regarded as recipients of services ( Luisi and Carbone , paragraph 16).
37. As regards the status conferred on Turkish nationals under the Association Agreement, Article 41(1) of the Additional Protocol lays down – as is apparent from its very wording – in clear, precise and unconditional terms, an unequivocal ‘standstill’ clause, which prohibits the Contracting Parties from introducing new restrictions on freedom of establishment and freedom to provide services with effect from the date of entry into force of the Additional Protocol (see, with regard to restrictions on freedom of establishment, Case C-37/98 Savas  [2000] ECR I‑2927, paragraph 46).
38. It is the Court’s established case-law that Article 41(1) of the Additional Protocol has direct effect. As a consequence, that provision may be relied on by the Turkish nationals to whom it applies before the courts or tribunals of the Member States (see, to that effect, Savas , paragraph 54; Joined Cases C-317/01 and C-369/01 Abatay and Others  [2003] ECR I-12301, paragraphs 58 and 59; Case C-16/05 Tum and Dari  [2007] ECR I-7415, paragraph 46; and Soysal and and Savatli , paragraph 45).
39. It should be noted that the ‘standstill’ clause prohibits generally the introduction of any new measure having the object or effect of making the exercise by a Turkish national of such economic freedoms in the territory of a Member State subject to stricter conditions than those which applied at the time when the Additional Protocol entered into force with regard to that Member State (see, to that effect, Savas , paragraphs 69 and the fourth indent of paragraph 71; Abatay and Others , paragraph 66 and the second indent of paragraph 117; and Tum and Dari , paragraphs 49 and 53).
40. The Court has already held that Article 41(1) of the Additional Protocol may be relied on by an undertaking established in Turkey which lawfully provides services in a Member State and by Turkish nationals who are lorry drivers employed by such an undertaking ( Abatay and Others , paragraphs 105 and 106).
44. However, the interpretation given to the provisions of European Union law, including Treaty provisions, concerning the internal market cannot be automatically applied by analogy to the interpretation of an agreement concluded by the European Union with a non-Member State, unless there are express provisions to that effect laid down by the agreement itself (see, to that effect, Case 270/80 Polydor and RSO Records  [1982] ECR 329, paragraphs 14 to 16; Case C-351/08 Grimme  [2009] ECR I-10777, paragraph 29; and Case C-70/09 Hengartner and Gasser  [2010] ECR I-7233, paragraph 42).
45. The use in Article 14 of the Association Agreement of the verb ‘to be guided by’ indicates that the Contracting Parties are not obliged to apply the provisions of the Treaty on freedom to provide services or indeed those adopted for the implementation of those provisions but simply to consider them as a source of guidance for the measures to be adopted in order to implement the objectives laid down in that agreement.
47. Moreover, as the Court has repeatedly held, whether it is possible to extend the interpretation of a provision in the Treaty to a comparably, similarly or even identically worded provision of an agreement concluded by the European Union with a non-Member State depends on, inter alia, the aim pursued by each provision in its own particular context. A comparison between the objectives and context of the agreement and those of the Treaty is of considerable importance in that regard (see Case C-312/91 Metalsa  [1993] ECR I-3751, paragraph 11; Case C-63/99 Gloszczuk  [2001] ECR I-6369, paragraph 49; and Case C‑162/00 Pokrzeptowicz-Meyer  [2002] ECR I-1049, paragraph 33).
48. With regard in particular to the EEC-Turkey Association, it is apparent from paragraph 62 of the judgment in Case C-371/08 Ziebell  [2011] ECR I-0000 that, in deciding whether a provision of European Union law lends itself to application by analogy under that association, a comparison must be made between the objective pursued by the Association Agreement and the context of which it forms a part, on the one hand, and those of the European Union law instrument in question, on the other.
50. First of all, with regard to objectives, the Court has already held that the EEC‑Turkey Association pursues a solely economic purpose ( Ziebell , paragraph 64). The Association Agreement and its Additional Protocol are intended essentially to promote the economic development of Turkey ( Savas , paragraph 53).
53. The development of economic freedoms for the purpose of bringing about freedom of movement for persons of a general nature which may be compared to that afforded to European Union citizens under Article 21 TFEU is not the object of the Association Agreement. Neither that agreement and its Additional Protocol nor Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association, which concerns only freedom of movement for workers, establishes any general principle of freedom of movement of persons between Turkey and the European Union. Furthermore, the Association Agreement guarantees the enjoyment of certain rights only within the territory of the host Member State (see, to that effect, Case C-325/05 Derin  [2007] ECR I‑6495, paragraph 66).
54. The Court has repeatedly held that the ‘standstill’ clause in Article 41(1) of the Additional Protocol is not, in itself, capable of conferring on Turkish nationals – on the basis of European Union legislation alone – a right of establishment or, as a corollary, a right of residence, or indeed a right of freedom to provide services or to enter the territory of a Member State (see, to that effect, Savas , paragraphs 64 and 71, third indent; Abatay and Others , paragraph 62; Tum and Dari , paragraph 52; and Soysal and Savatli , paragraph 47).
55. Consequently, irrespective of whether freedom of establishment or freedom to provide services in invoked, it is only where the activity in question is the corollary of the exercise of an economic activity that the ‘standstill’ clause may relate to the conditions of entry and residence of Turkish nationals within the territory of the Member States.
60. Accordingly, there is nothing to indicate that the Contracting Parties to the Association Agreement and the Additional Protocol envisaged, when signing those documents, freedom of provision of services as including passive freedom of provision of services.
63. In those circumstances, the answer to the first question is that the notion of ‘freedom to provide services’ in Article 41(1) of the Additional Protocol must be interpreted as not encompassing freedom for Turkish nationals who are the recipients of services to visit a Member State in order to obtain services.
Question 2