1 By order of 24 April 1997, received at the Court Registry on 16 February 1998, the Queen's Bench Division of the High Court of Justice of England and Wales referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) six questions on the interpretation of Article 13 of the Agreement establishing an Association between the European Economic Community and Turkey signed at Ankara on 12 September 1963, on the one hand, by the Republic of Turkey and, on the other, by the Member States of the EEC and the Community, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 133, p. 1; the Association Agreement) and of Article 41 of the Additional Protocol signed at Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1973 C 113, p. 17; the Additional Protocol).
2 The six questions have been raised in proceedings between Abdulnasir Savas, a Turkish national, and the Secretary of State for the Home Department (the Secretary of State) concerning a decision refusing to grant Mr Savas leave to remain in the United Kingdom and an order for his deportation from the territory of that Member State. The EEC-Turkey Association
3 Article 2(1) of the Association Agreement states that the aim of the Agreement is to promote the continuous and balanced strengthening of trade and economic relations between the Contracting Parties, which includes, in relation to the workforce, the progressive securing of freedom of movement for workers (Article 12) and the abolition of restrictions on freedom of establishment (Article 13) and the freedom to provide services (Article 14), with a view to improving the standard of living of the Turkish people and facilitating the accession of Turkey to the Community at a later date (see the fourth recital in the preamble and Article 28).
4 To that end, the Association Agreement involves a preparatory stage enabling the Republic of Turkey to strengthen its economy with aid from the Community (Article 3), a transitional stage devoted to the progressive establishment of a customs union and the alignment of economic policies (Article 4) and a final stage based on the customs union and entailing closer coordination of the economic policies of the Contracting Parties (Article 5).
5 Article 6 of the Association Agreement provides: To ensure the implementation and the progressive development of the Association, the Contracting Parties shall meet in a Council of Association which shall act within the powers conferred on it by this Agreement.
6 Articles 12, 13 and 14 of the Association Agreement appear in Title II thereof, headed Implementation of the transitional stage, under Chapter 3, concerning Other economic provisions.
7 Article 12 provides: The Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers between them.
8 Article 13 provides: The Contracting Parties agree to be guided by Articles 52 to 56 and Article 58 of the Treaty establishing the Community for the purpose of abolishing restrictions on freedom of establishment between them.
9 Article 14 provides: The Contracting Parties agree to be guided by Articles 55, 56 and 58 to 65 of the Treaty establishing the Community for the purpose of abolishing restrictions on freedom to provide services between them.
10 Article 22(1) of the Association Agreement provides: In order to attain the objectives of this Agreement the Council of Association shall have the power to take decisions in the cases provided for therein. Each of the parties shall take the measures necessary to implement the decisions taken. ...
11 Article 1 of the Additional Protocol, which, according to Article 62 of that protocol, forms an integral part of the Association Agreement, lays down the conditions, arrangements and timetables for implementing the transitional stage referred to in Article 4 of the Association Agreement.
12 The Additional Protocol includes Title II, headed Movement of persons and services, Chapter I of which concerns Workers and Chapter II of which concerns Rights of establishment, services and transport.
13 Article 36 of the Additional Protocol, which is included in Chapter I, lays down the time-limits for securing, by progressive stages, freedom of movement for workers between the Member States of the Community and Turkey in accordance with the principles set out in Article 12 of the Association Agreement, and provides, in the second paragraph, that the Council of Association is to decide on the rules necessary to that end.
14 Article 41 of the Additional Protocol, which is in Chapter II of Title II, provides as follows: 1. The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services. 2. The Council of Association shall, in accordance with the principles set out in Articles 13 and 14 of the Agreement of Association, determine the timetable and rules for the progressive abolition by the Contracting Parties, between themselves, of restrictions on freedom of establishment and on freedom to provide services. The Council of Association shall, when determining such timetable and rules for the various classes of activity, take into account corresponding measures already adopted by the Community in these fields and also the special economic and social circumstances of Turkey. Priority shall be given to activities making a particular contribution to the development of production and trade.
15 It is not in dispute that the Council of Association has not, as yet, adopted any measures under Article 41(2) of the Additional Protocol. The main proceedings
16 The national court's file shows that, on 22 December 1984, Mr and Mrs Savas, who are both Turkish nationals, obtained leave to enter the United Kingdom as tourists for one month.
17 Their entry visa for that Member State carried an express condition prohibiting them from taking employment or engaging in any business or profession.
18 Notwithstanding the expiry of their visa on 21 January 1985, Mr and Mrs Savas remained in the United Kingdom, so that, from that date, they were contravening the immigration law of that Member State.
19 In November 1989, Mr Savas started to operate a shirt factory in Hackney.
20 Neither he nor his wife sought authorisation to work or to engage in self-employed activity.
21 However, by a letter of 31 January 1991, they sought, through their solicitors, to regularise their stay by applying, under the relevant provisions of national legislation, to the Immigration and Nationality Department of the Home Office for leave to remain in the United Kingdom.
22 Owing to misplacement of the file until 21 July 1993, it was not until 21 March 1994 that, following an exchange of correspondence between Mr Savas's solicitors and the United Kingdom authorities, the Secretary of State refused that application for leave to remain and informed Mr and Mrs Savas of the competent authorities' intention to serve a deportation order on them.
23 The Secretary of State, in the exercise of his discretion, considered the application of Mr and Mrs Savas under the long residence concession, whereby a person who has 10 years' continuous and lawful residence in the United Kingdom, or 14 years' continuous residence, whether lawful or not, may qualify for the grant of indefinite leave to remain. However, according to the Secretary of State, Mr and Mrs Savas did not satisfy either of those criteria, and he decided that there were no other circumstances which could justify the exercise of his discretion in their favour.
24 In the meantime, Mr Savas had opened his first fast food business in Hythe in December 1992; a second takeaway began operating in Folkestone on 1 September 1994.
25 On 29 March 1994, Mr and Mrs Savas appealed against the decision to make a deportation order.
26 On 13 December 1994, the Immigration Adjudicator dismissed that appeal.
27 A subsequent application for leave to appeal to the Immigration Appeal Tribunal was rejected as out of time.
28 A deportation order against Mr and Mrs Savas was signed on 11 July 1995 and served on them on 31 August 1995.
29 It is common ground that, until 30 October 1995, all of Mr and Mrs Savas's applications had been made on the basis of national law alone.
30 On 30 October 1995, Mr and Mrs Savas's representatives contended for the first time that Article 41 of the Additional Protocol prevented the United Kingdom from imposing restrictions on the right of Turkish nationals to establish themselves on its territory beyond those which existed on the date of the accession of the United Kingdom to the Community. The Secretary of State should therefore have confined himself to assessing the position of Mr and Mrs Savas under the Immigration Rules in force on that date, 1 January 1973, namely HC 510, and in particular Paragraph 21 of HC 510 which provided: People admitted as visitors may apply for the consent of the Secretary of State to their establishing themselves here for the purpose of setting up in business, whether on their own account or as partners in a new or existing business. Any such application is to be considered on its merits ... Where the application is granted the applicant's stay may be extended for a period of up to 12 months, on a condition restricting his freedom to take employment ...
31 On 1 May 1996, the Secretary of State rejected that new argument, stating that, on the date on which Mr Savas submitted his application for regularisation of his stay in the United Kingdom, he no longer had leave to remain there and therefore could not in any event benefit from HC 510 as the then current Immigration Rules.
32 Mr Savas then applied to the Queen's Bench Division of the High Court of Justice for leave to apply for judicial review, which was granted on 11 July 1996.
33 Before that court, Mr Savas submitted that Article 41 of the Additional Protocol had direct effect and that the Secretary of State was required by that provision to consider his application of 30 October 1995 in the light of Paragraph 21 of HC 510. That provision should, he argued, be interpreted as including all persons admitted to the United Kingdom as visitors, irrespective of their immigration status at the time of their application. At the very least, the Secretary of State should, when examining Mr Savas's application, have taken account of Article 13 of the Association Agreement, the first and fourth recitals in its preamble and Article 41 of the Additional Protocol and come to the conclusion that, in the present case, deportation was a disproportionate penalty.
34 According to the Secretary of State, on the other hand, the Association Agreement cannot be relied upon by a person who is not lawfully present in the territory of a Member State. In any event, Article 41 of the Additional Protocol lacks direct effect and does not require the United Kingdom authorities to apply the rules on immigration which were in force on 1 January 1973. Moreover, Paragraph 21 of HC 510 covers only persons lawfully present in the United Kingdom as visitors when they submit their application, and deportation is not, he maintains, a disproportionate penalty to impose on an alien who has been in breach of the immigration rules for as long as Mr Savas.
35 Although the High Court has little doubt as to the direct effect of Article 41 of the Additional Protocol, it questions whether the effect of the Association Agreement is to confer rights on aliens who, like Mr Savas, are in the territory of a Member State unlawfully. The questions referred for a preliminary ruling
36 Considering that, in those circumstances, an interpretation of the Association Agreement and the Additional Protocol was necessary in order to resolve the dispute, the Queen's Bench Division of the High Court of Justice of England and Wales decided to stay proceedings and to refer the following six questions to the Court of Justice for a preliminary ruling: 1. Is the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963, together with the Additional Protocol signed at Brussels on 23 November 1970, to be interpreted as conferring benefits on a Turkish national who has (a) entered or (b) remained in the territory of a Member State in breach of the immigration law of that Member State? 2. If the answer to either part of the first question is "yes", does (a) Article 13 of the Agreement or (b) Article 41 of the Additional Protocol have direct effect within the national legal systems of Member States? 3. Does the Agreement together with the Additional Protocol prohibit the application by a Member State of a provision in its national law which refuses that Turkish national leave to remain on the territory of that Member State on the sole ground that his leave to enter or remain in the territory has expired? 4. Where, despite the provisions of its national law, the competent authority in a Member State considers, in the exercise of its discretion, an application by a Turkish national to remain in its territory, is that competent authority obliged to take into account the existence of the Agreement together with the Additional Protocol? 5. If the answer to question four is "yes", is the competent authority in the Member State required to have regard to the principle of proportionality in exercising its discretion? 6. If the answer to question five is "yes", what factors are to be taken into account by the competent national authority in determining whether deportation is proportionate? The first three questions
37 By its first three questions, which should be examined together, the national court is essentially asking whether Article 13 of the Association Agreement and Article 41 of the Additional Protocol are capable of conferring upon a Turkish national a right of establishment and, correspondingly, a right of residence in a Member State in whose territory he has remained and carried on self-employed business activities in breach of that Member State's immigration laws.
38 In order to give a proper answer to those questions as so reformulated, the first matter to be examined is whether the provisions to which they refer can be relied upon by an individual before a national court, and, if so, to determine their scope. The direct effect of the provisions at issue in the main proceedings
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).
40 It has to be determined whether Article 13 of the Association Agreement and Article 41 of the Additional Protocol meet those criteria. The direct effect of Article 13 of the Association Agreement
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).
42 It is clear that, like Article 12, which concerns freedom of movement for workers, Article 13 of the Association Agreement does no more than lay down in general terms, with reference to the corresponding provisions of the EC Treaty, the principle of eliminating restrictions on freedom of establishment between the contracting parties, and does not itself establish precise rules for the purposes of attaining that objective.
43 Pursuant to Article 22(1) of the Association Agreement, which confers a decision-making power on the Council of Association in order to attain the objectives of the Agreement, Article 41(2) of the Additional Protocol empowers the Council of Association to determine, in accordance with the principle set out in Article 13 of the Association Agreement, the timetable and rules for the progressive abolition of restrictions on freedom of establishment between the contracting parties.
44 However, the Council of Association has not adopted any measures under that latter provision for the concrete implementation of the general principle that obstacles to the right of establishment between the contracting parties are to be gradually abolished.
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.
55 It is therefore necessary to determine the scope of that provision. The scope of Article 41(1) of the Additional Protocol
56 In his written observations before the Court, Mr Savas argued essentially that Article 41(1) of the Additional Protocol is capable of conferring upon him a right of establishment and a corresponding right of residence in the Member State whose territory he has been authorised to enter, even though he has remained there and carried on business activities as a self-employed person in breach of that Member State's immigration laws.
57 At the hearing, Mr Savas explained that he was no longer claiming to derive rights of establishment and residence in a Member State directly from Article 41(1) of the Additional Protocol; he does claim, however, that the direct effect of that provision means that the Turkish national concerned may ask a national court to determine whether the national rules, on the basis of which it was decided to deport him, are stricter in relation to freedom of establishment and the right of residence than those which applied at the date on which the Additional Protocol entered into force in the Member State in question, and were thus adopted in breach of the standstill clause enacted by that provision.
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
72 Having regard to the answer given to the first three questions, there is no need to reply to the other questions.