R. v. Secretary of State for the Home Department ex parte. Abdulnasir

Savas (Case C-37/98)

Before the Court of Justice of the European

Communities (Sixth Chamber)

ECJ (6th Chamber)

(Presiding, Schintgen P.C. ( Rapporteur), Kapteyn, Hirsch, Ragnemalm and

Skouris JJ.) Mr Antonio La Pergola, Advocate General.

11 May 2000

Reference for a preliminary ruling under Article 177 of the E.C. Treaty (now Article 234 E.C.) from the United Kingdom by the High Court of Justice

(Queen's Bench Division). External relations--1963 EEC-Turkey Association Agreement and Additional Protocol--Turkish nationals resident and working in a Member State in breach of express prohibition under national law--neither Agreement nor Protocol contained an immediate right to freedom of establishment--whether standstill clause had direct effect--limited right to access to employment market and to engage in business--right must not be obtained fraudulently--national courts to safeguard Turkish workers' rights derived from the Protocol. Mr and Mrs Savas, both Turkish nationals, entered the United Kingdom on 22 December 1984 on a one month tourist visa. Despite express prohibition, they remained in Britain thereafter and Mr Savas started a number of businesses. They later sought to regularise their situation and applied to the Secretary of State for leave to remain in the country. The Secretary of State found that they did not satisfy the condition of continuous and lawful 10 year residence or the alternative condition of continuous 14 year residence. Their application was rejected and the Secretary of State indicated his intention to serve a deportation order. Their appeal to the Immigration Adjudicator was dismissed. In July 1996, the High Court granted leave to apply for judicial review. Before that court, Mr Savas relied on Article 13 of the 1963 EEC-Turkey Association Agreement which provides that the contracting parties would be guided by Articles 52 to 58 of the E.C. Treaty (now Articles 43 to 48 E.C.) for the purposes of abolishing between

them restrictions on the freedom of establishment. He further relied on Article 41 of the Additional Protocol to the Agreement which prevents the contracting parties from introducing restrictions on *730 the freedom of establishment and on the freedom to provide services, and which he claimed had direct effect. The High Court sought clarification from the European Court of Justice as to the extent of the rights conferred, under Article 41 of the Protocol and of Article 13 of the Agreement, on third-country nationals unlawfully resident in the territory of a Member State. Held: Whether the Community provisions had direct effect Provisions in an Association Agreement have been held to have direct effect where, having regard to their wording and to the purpose and nature of the agreement, they contain a clear and precise obligation, which is not subject, in its implementation or effects, to the adoption of any subsequent measure. [39] Sürül v. Bundesanstalt für Arbeit (C-262/96): [1999] E.C.R. I-2685, considered. Article 13 of the Agreement merely laid down a general prohibition on restrictions to the freedom of establishment between the E.C. and Turkey, by reference to the equivalent provisions in the E.C. Treaty. Its application was subject to subsequent adoption by the Council of Association, under Article 41(2) of the Protocol, of further rules for these purposes, which the Council had not yet done. Neither Article 13 nor Article 41(2) were therefore capable of affecting the legal position of individuals nor, consequently, of having direct effect. [42]-[45] & [71] Article 41(1) of the Protocol imposed a legal obligation on the Member States of standstill, worded in similar terms to Article 53 of the E.C. Treaty (now repealed), which, likewise, was clear, precise and unconditional, which was not subject to any further condition and was therefore legally complete and capable of direct effect. Such findings were corroborated by the purpose of the Agreement which was to promote trade development with Turkey, including the gradual abolition of restrictions on freedom to provide services, with a view to Turkey's accession to the European Community at a later stage. [46]-[54] & [71] Coste v. Ente Nazionale per l'Energia Elettrica (Enel) (6/64): [1964] E.C.R. 585; [1964] C.M.L.R. 425, applied. Scope of the standstill clause in Article 41(1) of the Protocol The Member States had retained competence in relation to entry and residence of Turkish workers seeking employment on their territory, who, unlike E.U. nationals did not benefit from a right of movement within the Community but only enjoyed limited rights in the host Member State. Such rights included limited employment rights and the corollary right of residence in the host Member State. However, the benefit of these rights was subject to a condition of lawful residence in the host Member State, excluding therefrom Turkish *731 nationals who had obtained residence rights fraudulently and whose employment could therefore not be regarded as secure. These principles applied, by extension, to

the principle of freedom of establishment, to the extent that the standstill clause could not confer the benefit of the right of establishment to a Turkish national who, like the applicant, had remained and engaged in business in the host Member State unlawfully. [58]-[67] & [71] Tetik v. Land Berlin (C-171/95): [1997] E.C.R. I-329; [1997] 2 C.M.L.R. 245; Sevince v. Staatssecretaris Van Justitie (C-192/89): [1990] E.C.R. I-3461; [1992] 2 C.M.L.R. 57; Kus v. Landeshauptstadt Wiesbaden (C-237/91), [1992] E.C.R. I-6781; [1993] 2 C.M.L.R. 887; Bozkurt v. Staatssecretaris Van Justitie (C-434/93): [1995] E.C.R. I-1475; Nazli v. Stadt Nürnberg (C-340/97): Not yet reported; Günaydin and Others v. Freistaat Bayern (C-36/96): [1997] E.C.R. I-5143; [1998] 1 C.M.L.R. 871; Ertanir v. Land Hessen (C-98/96): [1997] E.C.R. I-5179; and Birden v. Stadtgemeinde Bremen (C-1/97): [1998] E.C.R. I-7747; [1999] 1 C.M.L.R. 420, followed. Kol v. Land Berlin (C-285/95): [1997] E.C.R. I-3069; [1997] 3 C.M.L.R. 1175, applied. The national courts had a duty to safeguard the rights derived from the direct applicability of Article 41(1) of the Protocol and they alone were competent to determine whether national law applicable to the applicant's case made his position worse by comparison with the law applicable at the time of entry into force of the Protocol, as required thereunder. [68]-[70] & [71] Representation J. Walsh, Barrister, instructed by Ronald Fletcher Baker & Co., Solicitors, for Abdulnasir Savas. S. Ridley, of the Treasury Solicitor's Department, acting as Agent, assisted by E. Sharpston, Barrister, for the United Kingdom Government. E. Röder and C.-D. Quassowski, respectively Ministerialrat and Regierungsdirektor at the Federal Ministry of the Economy, acting as Agents, for the German Government. A. Samoni-Rantou, Special Assistant Legal Adviser in the Community Legal Affairs Department of the Ministry of Foreign Affairs, and L. Pneumatikou, specialist technical adviser in that Department, acting as Agents, for the Greek Government. K. Rispal-Bellanger, Head of Sub-directorate in the Legal Affairs Directorate of the Ministry of Foreign Affairs, and A. de Bourgoing, Chargé de Mission in the same Directorate, acting as Agents, for the French Government. U. Leanza, Head of the Legal Affairs Department in the Ministry of Foreign Affairs, acting as Agent, assisted by F. Quadri, Avvocato dello Stato, for the Italian Government. P. J. Kuijper, Legal Adviser, and N. Yerrell, a national civil servant on secondment to the Legal Service, acting as Agents, for the E.C. Commission. *732 Cases referred to in the judgment: 1. Sürül v. Bundesanstalt für Arbeit (C-262/96), 4 May 1999: [1999] E.C.R. I-2685.

2. Demirel v. Stadt Schwäbisch Gmünd (12/86), 30 September 1987: [1987] E.C.R. 3719; [1989] 1 C.M.L.R. 421. 3. Costa v. Ente Nazionale per l'Energia Elettrica (Enel) (6/64), 15 July 1964: [1964] E.C.R. 585; [1964] C.M.L.R. 425. 4. Sevince v. Staatssecretaris Van Justitie (C-192/89), 20 September 1990: [1990] E.C.R. I-3461; [1992] 2 C.M.L.R. 57. 5. Bresciani v. Amministrazione delle Finanze (87/75), 5 February 1976: [1976] E.C.R. 129; [1976] 2 C.M.L.R. 62. 6. Office National de l'Emploi v. Kziber (C-18/90), 31 January 1991: [1991] E.C.R. I-199. 7. Amministrazione delle Finanze dello Stato v. Chiquita Italia SpA (C-469/93), 12 December 1995: [1995] E.C.R. I-4533. 8. Tetik v. Land Berlin (C-171/95), 23 January 1997: [1997] E.C.R. I-329; [1997] 2 C.M.L.R. 245. 9. Kus v. Landeshauptstadt Wiesbaden (C-237/91), 16 December 1992: [1992] E.C.R. I-6781; [1993] 2 C.M.L.R. 887. 10. Bozkurt v. Staatssecretaris Van Justitie (C-434/93), 6 June 1995: [1995] E.C.R. I-1475. 11. Nazli v. Stadt Nürnberg (C-340/97), 10 February 2000: Not yet reported. 12. Günaydin and Others v. Freistaat Bayern (C-36/96), 30 September 1997: [1997] E.C.R. I-5143; [1998] 1 C.M.L.R. 871. 13. Ertanir v. Land Hessen (C-98/96), 30 September 1997: [1997] E.C.R. I-5179. 14. Birden v. Stadtgemeinde Bremen (C-1/97), 26 November 1998: [1998] E.C.R. I-7747; [1999] 1 C.M.L.R. 420. 15. Kol v. Land Berlin (C-285/95), 5 June 1997: [1997] E.C.R. I-3069; [1997] 3 C.M.L.R. 1175. Further cases referred to by the Advocate General: 16. A. Racke GmbH & Co. v. Hauptzollamt Mainz (C-162/96), 16 June 1998: [1998] E.C.R. I-3655; [1998] 3 C.M.L.R. 219. 17. The State v. Royer (48/75), 8 April 1976: [1976] E.C.R. 497; [1976] 2 C.M.L.R. 619. 18. Kaefer and Another v. France (C 100 & 101/89), 12 December 1990: [1990] E.C.R. I-4647. 19. R. v. Immigration Appeal Tribunal and Surinder Singh, Ex parte Secretary of State for the Home Department (C-370/90), 7 July 1992: [1992] E.C.R. I-4265; [1992] 3 C.M.L.R. 358. 20. Eroglu v. Land Baden-Württemburg (C-355/93), 5 October 1994: [1994] E.C.R. I-5113. 21. Kadiman v. Freistaat Bayern (C-351/95), 17 April 1997: [1997] E.C.R. I-2133. *733 22. Patrick v. Ministre des Affaires Culturelles (11/77), 28 June 1977: [1977] E.C.R. 1199; [1977] 2 C.M.L.R. 523. 23. E.C. Commission v. Greece (305/87), 30 May 1989: [1989] E.C.R. 1461; [1991] 1 C.M.L.R. 611.

24. Collins v. Imtrat Handelsgesellschaft mbH and Others (C 92 & 326/92), 20 October 1993: [1993] E.C.R. I-5145; [1993] 3 C.M.L.R. 773. 25. Data Delecta Aktiebolag and Another v. MSL Dynamics Ltd (C-43/95), 26 September 1996: [1996] E.C.R. I-4661; [1996] 3 C.M.L.R. 741. 26. MartÍnez Sala v. Freistaat Bayern (C-85/96), 12 May 1998: [1998] E.C.R. I-2691. 27. Internationale Crediet- en Handelsvereniging "Rotterdam" NV and Others v. Minister of Agriculture and Fisheries (73 & 74/63), 18 February 1964: [1964] E.C.R. 1; [1964] C.M.L.R. 198. 28. Simmenthal SpA v. Amministrazione delle Finanze dello Stato (70/77), 28 June 1978: [1978] E.C.R. 1453; [1978] 3 C.M.L.R. 670. 29. Procureur de la Republique v. Tissier (35/85), 20 March 1986: [1986] E.C.R. 1207; [1987] 1 C.M.L.R. 551. 30. Criminal Proceedings against Claeys (C-114/91), 16 December 1992: [1992] E.C.R. I-6559. 31. Finanzamt Kassel-Goethestrasse v. Viessmann KG (C-280/91), 18 March 1993: [1993] E.C.R. I-971; [1993] 3 C.M.L.R. 153.

Opinion of Mr Advocate General La Pergola

Legislative and factual background of the main proceedings 1. By an order of 24 April 1997 of the High Court of Justice, England and Wales, Queen's Bench Division, registered at the Court of Justice on 16 February 1998, this Court is called upon for the first time to interpret the rules governing the EEC-Turkey Association with regard to freedom of establishment. The questions referred for a preliminary ruling under Article 177 of the E.C. Treaty (now Article 234 E.C.) are as follows: 1. Is the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 ("the Agreement") together with the Additional Protocol to the Agreement signed at Brussels on 23 November 1970 ("the Additional Protocol") 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 *734 (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? 2. The Agreement was concluded, approved and confirmed on behalf of the Community by Council Decision 64/732. [FN1] Its aim is: to promote the continuous and balanced strengthening of trade and economic relations between the parties, while taking full account of the need to ensure an accelerated development of the Turkish economy and to improve the level of employment and the living conditions of the Turkish people, [so as to facilitate] the accession of Turkey to the Community at a later date. [FN2] FN1 [1973] O.J. C133/1. FN2 Preamble and Article 2(1) of the Agreement. In pursuit of those objectives, the Association established by the Agreement involves: (i) a preparatory stage to enable Turkey to strengthen its economy with aid from the Community; (ii) a transitional stage for the progressive establishment of a customs union and for the alignment of the economic policies of the contracting parties; and (iii) a final stage based on the customs union and entailing closer co-ordination of those economic policies. [FN3] FN3 Case 12/86, Demirel v. Stadt Schwäbisch Gmünd: [1987] E.C.R. 3719; [1989] 1 C.M.L.R. 421, para. [15]. The rules for applying the final stage were laid down by Decision 1/95 of the EEC-Turkey Association Council. [FN4] FN4 Decision 1/95 of the EEC-Turkey Association Council on implementing the final phase of the Customs Union ([1996] O.J. L35/1). Article 13 of the Agreement, cited in the order for reference, appears in Chapter 3 ("Other economic provisions") under Title II *735 ("Implementation of the transitional stage") of the Agreement and provides: "The contracting parties agree to be guided by Articles 52 to 56 and Article 58 of the Treaty establishing the Community [now Articles 43, 44, 45, 46 and 48 E.C. [FN5]] for the purpose of abolishing restrictions on freedom of establishment between them". FN5 Articles 52, 54 and 56 of the E.C. Treaty have been amended; Article 53 of

the E.C. Treaty was repealed by the Treaty of Amsterdam. 3. The Additional Protocol--whereby the intention of the parties was to lay down the conditions, arrangements and timetables for the implementation of the transitional stage provided for in the Agreement [FN6] and which replaced the protocols originally annexed thereto--was approved on behalf of the Community by Council Regulation 2760/72. [FN7] In accordance with Articles 62 and 63(2) of the Additional Protocol, the latter with its annexes constitutes an integral part of the Agreement and entered into force on 1 January 1973 (the day on which the United Kingdom joined the Community). FN6 See para. 2 above. FN7 [1972] O.J. L293/1. Article 41 of the Additional Protocol, the second Community provision cited by the national court, appears in Chapter II ("Right of establishment, services and transport") under Title II ("Movement of persons and services") and provides: 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. [FN8] FN8 The text of Article 13 of the Agreement is given in para. 2 above. According to Article 14, "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" [those Articles have become, respectively, Articles 45, 46 and 48 to 54 E.C. (Articles 56, 57, 59, 61, 63 and 64 of the E.C. Treaty have been amended; Article 62 of the E.C. Treaty has been repealed by the Treaty of Amsterdam)]. The Association Council--composed, of the one part, of members of the Governments of the Member States, of the Council and of the Commission, and, of the other part, of members of the Turkish Government--was established by Article 6 of the Agreement. According to Article 22(1) of the Agreement, "In order to attain the objectives of this Agreement, the Council of Association shall have the power to take decisions (...). Each of the parties shall take the measures necessary to implement the decisions taken. (...)".

The Association Council has not so far adopted any measures on the basis of Article 41(2) of the Additional Protocol. 4. These proceedings arise from the application by Mr Savas, a *736 Turkish national, for judicial review by the High Court of Justice of (i) the decision by the Secretary of State for the Home Department ("the Secretary of State") to refuse him leave to remain in the United Kingdom as a self-employed person, and (ii) the decision to enforce the deportation orders previously made against him and his wife, Mrs Savas. 5. Mr and Mrs Savas entered the United Kingdom on 22 December 1984 on a regular tourist visa valid for one month, expressly subject to a condition prohibiting them from working, in either an employed or self-employed capacity. According to the national court, it is unclear precisely how Mr and Mrs Savas occupied and maintained themselves between 21 January 1985, when the entry visa expired, and the opening by Mr Savas of a shirt factory in November 1989. Mr and Mrs Savas first took action to regularise their stay in the United Kingdom in 1991. By letters of 31 January and 29 May 1991, sent to the Immigration and Nationality Department of the Home Office ("IND"), through their solicitors they applied for leave to remain in the United Kingdom on the basis of the relevant provisions of national law. On 1 July 1991, the IND asked the couple for information on their financial situation. However, owing to an administrative error, the IND did not promptly examine subsequent correspondence from Mr and Mrs Savas. After Mr Savas had opened a fast food business in December 1992, the IND resumed contact on 21 July 1993 with the couple's representatives, who supplied further information on several occasions at the request of the IND and the Secretary of State. 6. On 21 March 1994, the Secretary of State refused the leave requested by Mr and Mrs Savas and served the couple with notice of intention to deport them. In the exercise of his discretionary powers, the Secretary of State considered the couple's application on the basis of the "long residence concession", whereby a person with 10 years or more of continuous lawful residence in the United Kingdom, or 14 years' continuous residence, whether lawful or not, may be granted indefinite leave to remain depending on the particular circumstances of his case. In the Secretary of State's view, however, Mr and Mrs Savas did not meet either of those criteria, nor could they point to any other relevant circumstances justifying the exercise of his discretion in their favour, such as special ties with the host State or possible humanitarian grounds. The couple's appeal against the decision to make a deportation order was dismissed by the Immigration Adjudicator by a determination of 13 December 1994. A subsequent application by Mr Savas for leave to appeal against that determination before the Immigration Appeal Tribunal was rejected as out of time. Meanwhile, in September 1994, he had begun to operate his second fast food business. On 31 August 1995, deportation orders were served on Mr and Mrs Savas, the effect of which, once implemented, is to prohibit them from re-entering the United Kingdom for at least three years *737 (save in the event of revocation of the deportation orders on strong humanitarian grounds).

7. On 30 October 1995, Mr Savas's representatives invoked Article 41 of the Additional Protocol for the first time in support of the application for leave to remain. They argued that that provision, having direct effect, prevented the United Kingdom from imposing further restrictions on the right of Turkish nationals to establish themselves in its territory beyond those already in force on 1 January 1973, the date of that country's accession to the Community, and contained in HC 510, the domestic provision which at that time governed control of immigration subsequent to the entry of foreigners on to national territory. [FN9] On 1 May 1996, the Secretary of State adopted the decision against which these proceedings have been instituted. It follows from that decision that, even if Mr Savas's interpretation of Article 41 were correct, it would not assist him in any event. At the time of his application to remain as a businessman, Mr Savas no longer had leave to remain in the United Kingdom, and could not therefore derive any rights from HC 510. FN9 Under para. 21 of HC 510, "People admitted as visitors may apply for the consent of the Secretary of State to their establishing themselves [in the United Kingdom] 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. Permission will depend on a number of factors, including evidence that the applicant will be devoting assets of his own to the business, proportional to his interest in it, that he will be able to bear his share of any liabilities the business may incur, and that his share of the profits will be sufficient to support him and any dependants. The applicant's part in the business must not amount to disguised employment, and it must be clear that he will not have to supplement his business activities by employment for which a work permit is required. (...) 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. A person admitted as a businessman in the first instance may be granted an appropriate extension of stay if the conditions set out above are still satisfied at the end of the period for which he was admitted initially." 8. In the proceedings before the national court, Mr Savas argued that Article 41 of the Additional Protocol required the Secretary of State to consider his application under paragraph 21 of HC 510, applicable to all persons admitted to the United Kingdom as visitors at any time, whatever their status for immigration purposes at the time of legal proceedings. In the alternative, he argued that, even if paragraph 21 of HC 510 were deemed not to apply to him, his application for leave to remain should have been examined on the basis of the preamble to and Article 13 of the Association Agreement and Article 41 of the Additional Protocol. That examination would have led to the conclusion that, in the circumstances of the case, deportation would be a disproportionate penalty for the alleged breach of the national immigration rules. 9. In reply, the Secretary of State has stated that the Agreement cannot be relied upon by persons who are not lawfully present in a Member State or otherwise

entitled by national law to apply to enter its territory. Furthermore, persons in Mr Savas's position cannot in any *738 event invoke the Agreement on the strength of Article 41 of the Additional Protocol, since that provision is without direct effect and cannot require the United Kingdom to apply the rules on freedom of establishment for Turkish nationals in force on 1 January 1973. In the alternative, the Secretary of State argues that Mr Savas's claim is unfounded, the wording of paragraph 21 of HC 510 applying only to persons who at the time of the application were lawfully present in the United Kingdom as visitors. Moreover, under paragraph 4 of HC 510, failure to observe the time-limit on his entry visa precluded the applicant in any event from being able to obtain a variation of the initial leave to remain. [FN10] Finally, deportation could not be a disproportionate penalty for a foreigner who has overstayed the duration of his leave to remain for as long as Mr Savas. FN10 Paragraph 4 of HC 510, concerning extension or variation of leave to remain, provided: "The succeeding paragraphs set out the main categories of people who may be given limited leave to enter [the United Kingdom] and who may seek variation of their leave, and the principles to be followed in dealing with their applications, or in initiating any variation of their leave. In deciding these matters, account is to be taken of all the relevant facts; the fact that the applicant satisfies the formal requirements of these rules for stay or further stay in the proposed capacity is not conclusive in his favour. It will, for example, be relevant whether the person has observed the time-limit and conditions subject to which he was admitted; whether in the light of his character, conduct or associations it is undesirable to permit him to remain; whether he represents a danger to national security; or whether, if allowed to remain for the period for which he wishes to stay, he might not be returnable to another country."

Legal analysis 10. I believe it is appropriate to begin the examination of this case, as the Commission suggests, with the second question referred for a preliminary ruling, in which the national court asks whether Article 13 of the Agreement and Article 41 of the Additional Protocol have direct effect. Clearly, Mr Savas's claim would fail if the provisions invoked by him in the proceedings before the High Court of Justice did not have direct effect or were in any event incapable of directly regulating the position of individuals. It is settled case law that a provision in an agreement concluded by the Community with a non-Member country must be regarded as being directly effective, and thus immediately applicable, when, regard being had 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 regard to its implementation or its effects, to the adoption of any subsequent measure. [FN11] FN11 See, for example, Demirel cited above, para. [14]; Case C-18/90, Office National de l'Emploi v. Kziber: [1991] E.C.R. I-199, para. [15]; Case C-162/96, A. Racke GmbH & Co. v. Hauptzollamt Mainz: [1998] E.C.R. I-3655; [1998] 3

C.M.L.R. 219, para. [31]; and Case C-262/96, Sürül v. Bundesanstalt für Arbeit: [1999] E.C.R. I-2685, para. [60]. 11. First of all, I agree with the Commission and all the governments which have intervened in the proceedings before the Court that Article 13 of the Agreement [FN12] is essentially in the nature of a programme. That *739 provision is confined to setting out the principles by which Turkey, the Member States and the Community have agreed to be guided in bringing about, on a gradual and reciprocal basis, freedom of establishment for Community and Turkish citizens. It is no accident that, in Demirel, the Court held that Article 12 of the Agreement--which concerns the free movement of workers and the text of which is modelled precisely on Article 13 [FN13]--does not have direct effect in the legal systems of the Member States. [FN14] FN12 See para. 2 above. FN13 See fn. 23 below. FN14 See Demirel, cited above, paras [19]-[25]. 12. As for Article 41 of the Additional Protocol, paragraph (2) thereof is also merely in the nature of a programme, in that it merely provides that the Association Council has the power to establish, in accordance with the principles set out in Article 13 of the Agreement and for each category of activity, the timetable and rules whereby the contracting parties are to provide for the progressive abolition of restrictions on freedom of establishment. Moreover, no time-limit is fixed for the exercise of that power by the Association Council. [FN15] FN15 Contrast Article 36 of the Additional Protocol concerning the progressive achievement of freedom of movement for workers (see fn. 23 below). By contrast, Article 41(1) of the Additional Protocol [FN16] constitutes a "standstill" clause (also concerning the freedom to provide services) which is entirely comparable to that contained in Article 53 of the E.C. Treaty, inserted (prior to its repeal by the Treaty of Amsterdam) under Chapter 2 of Title III, concerning the right of establishment. Concerning that provision, the Court observed in Case 6/64, Costa v. Ente Nazionale per l'Energia Elettrica (Enel): The obligation thus entered into by the States simply amounts legally to a duty not to act, which is neither subject to any conditions, nor, as regards its execution or effect, to the adoption of any measure either by the States or by the Commission. It is therefore legally complete in itself and is consequently capable of producing direct effects on the relations between Member States and individuals. Such an express prohibition which came into force with the Treaty throughout the Community, and thus became an integral part of the legal system of the Member States, forms part of the law of those States and directly concerns

their nationals, in whose favour it has created individual rights which national courts must protect. [FN17] FN16 See para. 3 above. FN17 [1964] E.C.R. 585, at p. 596; [1964] C.M.L.R. 425. In my view, similar considerations apply to Article 41(1) of the Additional Protocol. That rule, in truth, also constitutes a clear and precise obligation to produce a result. By its nature, therefore, it can be relied upon in proceedings before the national courts by any person concerned in order to challenge the lawfulness, and thus the application, of legislation adopted by any Member State which makes *740 the establishment of Turkish citizens in its territory subject to further restrictions, in addition to those existing on 1 January 1973. [FN18] FN18 See also Case C-192/89, Sevince v. Staatssecretaris Van Justitie: [1990] E.C.R. I-3461; [1992] 2 C.M.L.R. 57, in which, inter alia, the Court acknowledged the direct effect of "standstill" clauses concerning the introduction of new restrictions on access to work by migrant Turkish nationals in a lawful position as regards residence and employment in the territory of the contracting States, contained in Article 7 of Decision 2/76 of the Association Council on the implementation of Article 12 of the Ankara Agreement and Article 13 of Decision 1/80 of the Association Council on the development of the Association (neither Decision is published in the Official Journal). 13. The finding that Article 41(1) may directly govern the position of individuals does not appear to be contradicted by consideration of the purpose and nature of the Agreement of which it forms part. The purpose of the Agreement is to establish an association to promote and develop trade and economic relations between the contracting parties--in the field of self-employment as well, through the progressive elimination of restrictions on freedom of establishment--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. [FN19] Moreover, the fact that the Agreement is intended essentially to promote the economic development of Turkey and therefore involves an imbalance in the obligations assumed by the Community towards that country is not such as to prevent certain of its provisions from being directly applicable. [FN20] I therefore conclude, in relation to the second question referred, that Article 41(1) of the Additional Protocol--unlike Article 13 of the Agreement--lays down a sufficiently precise and unconditional rule for the national courts to be able to apply it immediately as being suited to regulating the legal position of individuals. FN19 See para. 2 above. FN20 See Sürül, cited above, paras [69]-[72].

14. I now turn to the first and third questions referred by the High Court of Justice, and set out above, [FN21] which I suggest this Court should examine together. They require definition of the content of the rights on which a person in Mr Savas's position may lawfully rely pursuant to Article 41(1) of the Additional Protocol. According to the applicant, Article 41(1) refers en bloc to the rules laid down in Article 52 of the E.C. Treaty and subsequently defined in the case law of the Court of Justice. The applicant, in my view, seems to be arguing that the position of Turkish nationals is fully assimilated, as regards the benefit of freedom of establishment in the Member States and the right to receive the same treatment as nationals, to that of Community citizens. Since exercise of the freedom at issue in the proceedings necessarily involves the right of residence for a Turkish migrant in the territory of the country of establishment, [FN22] Mr Savas claims that he (and indirectly *741 his wife as well) cannot be made subject to any deportation measure, even if on the grounds--as in this case--of failure to comply with the time-limit on the validity of the entry visa or the prohibition therein on taking up employment. He therefore maintains that the Court should give an affirmative answer to the first and third questions. FN21 Para. 1. FN22 See, inter alia, Sevince, para. [29]; Case C-237/91, Kus v. Landeshauptstadt Wiesbaden: [1992] E.C.R. I-6781; [1993] 2 C.M.L.R. 887, paras [29]-[33]. See also Case 48/75, The State v. Royer [1976] E.C.R. 497; [1976] 2 C.M.L.R. 619, para [27]; Joined Cases C 100 & 101/89, Kaefer and Another v. France: [1990] E.C.R. I-4647, para. [19]; and Case C-370/90, R. v. Immigration Appeal Tribunal and Surinder Singh, Ex parte Secretary of State for the Home Department: [1992] E.C.R. I-4265; [1992] 3 C.M.L.R. 358, para. [17]. Conversely, according to the Court, in the absence of a specific provision conferring on Turkish workers a right to remain in the territory of a Member State after working there, a Turkish national's right of residence, as implicitly but necessarily guaranteed by Article 6 of Decision 1/80 (see fn. 25 below) as a corollary of legal employment, ceases to exist if the person concerned becomes totally and permanently incapacitated for work (see Case C-434/93, Bozkurt v. Staatssecretaris Van Justitie: [1995] E.C.R. I-1475, para. [40]). 15. However, I am not swayed by Mr Savas's arguments. Article 41(1) of the Additional Protocol does not directly confer on Turkish nationals a perfect and unconditional right to take up and pursue activities as self-employed persons or to establish and run undertakings in member countries, on the conditions laid down by the legislation of the host State in relation to its own citizens. The fact remains that, in the context of the measures governing the EEC-Turkey Association, there is no provision corresponding to Article 52 in the system established by the Treaty. It is true that the contracting parties have undertaken to achieve freedom of establishment between themselves, taking as their basis for that purpose the relevant provisions of the Treaty. The Association Council has however omitted, in contrast to the position in relation to the free movement

of workers, [FN23] to lay down timetables and rules for the planned progressive abolition of restrictions on the freedom in question, in implementation of the programme setting provision in the Agreement. [FN24] The provision having direct effect, to be found in Article 41(1), cannot therefore provide any basis for Mr Savas's claim that the treatment of Turkish professional practitioners and businessmen is to be brought fully into *742 line with the principles laid down by the Treaty with regard to the right of establishment. FN23 See, in particular, Decisions 2/76 and 1/80 (referred to in fn. 18 above) of the Association Council adopted for the purpose of implementing Article 12 of the Agreement and Article 36 of the Additional Protocol. According to Article 12 of the Agreement: "The contracting parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the Community [now Articles 39, 40 and 41 E.C. the first two following amendment] for the purpose of abolishing restrictions on freedom of establishment between them." Article 36 of the Additional Protocol provided that such freedom of movement was to be secured gradually between the end of the 12th and the 22nd year after the entry into force of the Agreement, in accordance with the principles set out in Article 12 and the rules necessary to that end determined by the Association Council. In particular, Article 1 of Decision 2/76 constitutes the first stage in the attainment of freedom of movement for workers between the Community and Turkey, which was to take four years from 1 December 1976. Subsequently, by Decision 1/80, the Association Council sought to improve the arrangements in the social field for workers and their families in relation to those introduced by Decision 2/76 (see the third paragraph in the preamble). See also Decision 3/80 of the Association Council on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families ([1983] O.J. C110/60), adopted on the basis of Article 39 of the Additional Protocol. FN24 See Article 41(2) of the Additional Protocol. 16. There is also a further aspect which cannot be overlooked. Although, in the matter of freedom of movement for workers, the treatment accorded to migrant Turkish nationals must, in accordance with the case law of the Court of Justice, be based as far as possible on the principles arising under Articles 48, 49 and 50 of the Treaty, the only workers who may benefit from those rules, and thus from the rights modelled on those laid down by the Treaty, are those who satisfy the requirements laid down by Decision 1/80 (i.e. those duly registered as belonging to the labour force of the host Member State who have been lawfully employed for a certain period). [FN25] The Court of Justice has stated in that respect that "in contrast to 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 *743 been in legal employment for a specified period". [FN26] In other words, it is undisputed that, by virtue of the Agreement, the position of

Turkish workers undoubtedly differs from that of citizens of other non-Member countries. But that still does not mean, in the matter under consideration, that the Agreement was intended to equate their position with that of Community workers, especially for the purposes of access to the territory of a Member State and the right to remain there, to obtain renewal of a work permit and freely to take up any form of employment. [FN27] By the same token, the Court of Justice has frequently held that the rules concerning the EEC-Turkey Association do not affect the power of Member States to regulate the entry of Turkish citizens to their territory and the conditions of their first employment. [FN28] FN25 See, inter alia, Bozkurt, para. [20], and Case C-171/95, Tetik v. Land Berlin: [1997] E.C.R. I-329; [1997] 2 C.M.L.R. 245, paras [20] & [28]. Indeed, according to the Court, Member States do not have the power to render conditional or to restrict the precise and unconditional rights conferred by Decision 1/80 upon Turkish citizens who comply with the requirements set out therein (see, inter alia, Case C-36/96, Günaydin and Others v. Freistaat Bayern: [1997] E.C.R. I-5143 [1998] 1 C.M.L.R. 871, para. [39], and Case C-98/96, Ertanir v. Land Hessen: [1997] E.C.R. I-5179, para. [57]). The provisions of Section 1 ("Questions relating to employment and the free movement of workers") of Chapter II ("Social provisions") of Decision 1/80-- concerning the employment rights in the host Member State of Turkish workers who have been lawfully employed there for a given period (Article 6) and members of their families (Article 7)--constitute a further step towards the achievmeent of freedom of movement for workers. Article 6(1) states: "Subject to Article 7 on free access to employment for members of his family, a Turkish worker duly registered as belonging to the labour force of a Member State: shall be entitled in that Member State, after one year's legal employment, to the renewal of his permit to work for the same employer, if a job is available; shall be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of Member States of the Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment services of that State, for the same occupation; shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment." According to settled case law, the legality of employment for the purposes of Article 6(1) of Decision 1/80--which is to be determined in the light of the legislation of the host State governing the conditions under which the Turkish worker entered the national territory and is employed there (see Bozkurt, cited in fn. 22 above, para. [27])--presupposes a stable and secure situation as a member of the labour force of a Member State, and thereby implies the existence of an undisputed right of residence (see, for example, Sevince, cited in fn. 18 above, para. [30]; and Kus, cited in fn. 22 above, paras [12] & [22]). Thus, the Court has held, periods of employment cannot, for example, be regarded as legal where they follow the issue of an indefinite residence permit by the host Member State obtained only by fraud (inaccurate statements) and, after discovery, the Member State convicts the person concerned and rescinds the measure in question. Such periods of

employment, during which the Turkish migrant worker was not legally entitled to a residence permit, cannot be said to be based on a stable situation and are thus to be regarded as merely provisional. Moreover, in such circumstances, the employment of the person concerned cannot give rise to any rights in his favour or arouse any legitimate expectation on his part (see Case C-285/95, Kol v. Land Berlin: [1997] E.C.R. I-3069; [1997] 3 C.M.L.R. 1175, paras [21] & [25]- [29]). FN26 See Tetik, cited in fn. 25 above, para. [29]. FN27 See the Opinion of Advocate General Darmon in Case C-355/93, Eroglu v. Land Baden-Württemberg: [1994] E.C.R. I-5113, paras 23-25. The Advocate General did, it is true, acknowledge that--since the Agreement, based on Article 48 of the Treaty, "extends progressively to Turkish nationals the ambit of one of the fundamental freedoms of the Community, namely access to the labour market [and] therefore pursues the same aim as that pursued by the EEC Treaty in respect of Community nationals"--there was a tendency for the status of worker within the meaning of the Association Agreement to be drawn closer to the corresponding Community concept. However, he deduced from that premiss merely that the actual concept of worker, arising from the Agreement, cannot be interpreted "very differently" from the Community meaning of worker arising from the case law of the Court of Justice, at any rate in the absence of anything to indicate a restrictive interpretation. FN28 See, inter alia, Kus, cited at fn. 22 above, para. [25] and Günaydin, cited at fn. 25 above, para. [23], concerning Decision 1/80, cited above at fn. 14, which in the view of the Court merely regulates, particularly in Article 6, cited above, the situation of Turkish workers already integrated into the labour force of a Member State. Similarly, the first paragraph of Article 7 of Decision 1/80--whilst providing that the members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State are entitled to take up employment in that country after being legally resident there for a specified period--does not thereby affect the power of the Member State concerned to authorise any such persons to join the Turkish worker legally employed there, to regulate their stay until they become entitled to respond to any offer of employment and, if necessary, to allow them, under such conditions as it may specify, to take up employment before the expiry of the initial period of three years laid down by the first indent (see Case C-351/95, Kadiman v. Freistaat Bayern: [1997] E.C.R. I-2133, para. [32]). The crucial factor for the purposes of this Opinion is that the principle of non-equivalence which applies to Turkish workers must apply a fortiori, for the reasons given above, [FN29] to Turkish citizens intending to migrate to the Community in order to pursue an activity as self-employed persons. It is true that Article 41(1) of the Additional Protocol, which has direct effect, protects self-employed Turkish migrants. However, it does so only in the sense that it prohibits Member States from introducing any new provisions, after the entry into force of the Additional Protocol, whereby the establishment of Turkish professional

practitioners and businessmen is made subject to rules less favourable than the treatment previously provided for. By concluding the Agreement and the Additional Protocol, therefore, the *744 contracting parties did not encroach upon the restrictions on the freedom in question which already existed on 1 January 1973. [FN30] They merely undertook to abolish them gradually, although the undertaking was not implemented. In the matter of establishment, therefore, the Member States have, in my opinion, maintained their essentially unconditional power to regulate the entry and residence of Turkish nationals on their territory, the rules for their inclusion in the national labour market, [FN31] and the position of Turkish workers already lawfully active in that market in their capacity as professional practitioners or businessmen. I therefore conclude that Mr Savas cannot rely on the direct effect of Article 41(1) of the Additional Protocol in support of his own alleged right of establishment (and, as an obvious corollary, residence) in British territory. FN29 Para. 15. FN30 Save for the possible impact in this area of the general principle of non-discrimination laid down in Article 9 of the Agreement; see paras 18-20 below. FN31 See fn. 28 above. 17. The Commission argues that a person in Mr Savas's position would not be able to claim any rights under Article 41(1), even if his presence in the host Member State were lawful under national law. I would endorse that point of view. I cannot share the unanimous conclusions reached on that point by the national governments in this case. In their view, if a Turkish worker resides in the host Member State by virtue of a legitimate entitlement under national law, that is relevant for the purpose of assessing the lawfulness of his employment, on which the enjoyment by Turkish migrants of the specific rights granted by Article 6(1) of Decision 1/80 depends. [FN32] However, that reasoning applies to the case of employed workers; as we have seen, the Association Council has not implemented the Agreement's rules on freedom of establishment, which are in the nature of a programme, and in the face of such inaction it does not seem to me to be possible to apply to a self-employed worker the principle that informs the rules on the free movement of workers under the system established by the EEC-Turkey Association, whereby the lawfulness of a migrant's employment in the host country entails his precise subjective legal rights, which constitute rights worthy of protection, being unconditionally recognised. In other words, the result of the interpretation of Article 41(1) of the Additional Protocol which I am proposing to the Court would not, logically, be different even if Mr and Mrs Savas had applied to the British authorities for leave to remain in the United Kingdom before the expiry of their entry visa, while they still enjoyed a legal right of residence. FN32 See fn. 25 above, and related text.

18. That said, I would like for the sake of completeness to add a few reflections on an aspect of the case which I have not hitherto mentioned. Might an individual in the applicant's position be able to rely on the general principle of non-discrimination on the basis of nationality, laid down by Article 9 of the Agreement, in support of his *745 claim to establish himself and reside in the host Member State, even without the need for individual leave granted by the Secretary of State under paragraph 21 of HC 510? Article 9, under Title II of the Agreement (headed "Implementation of the transitional stage") states: The contracting parties recognise that within the scope of this Agreement and without prejudice to any special provisions which may be laid down pursuant to Article 8, any discrimination on grounds of nationality shall be prohibited in accordance with the principle laid down in Article 7 of the Treaty [subsequently Article 6 of the E.C. Treaty, now, after amendment, Article 12 E.C.]. [FN33] FN33 Article 8 of the Agreement states: "In order to attain the objectives set out in Article 4 [i.e. the progressive establishment of a customs union and the closer alignment of Turkish economic policies with those of the Community in order to ensure the proper functioning of the Association and the progress of the joint measures thereby required], the Council of Association shall (...) determine the conditions, rules and timetable for the implementation of the provisions relating to the fields covered by the Treaty establishing the Community which must be considered; this shall apply in particular to such of those fields as are mentioned under this Title and to any protective clause which may prove appropriate". At first sight, those provisions might be thought capable of being applied in the present case for a number of reasons. First of all, the principle of equal treatment laid down in general terms by the Agreement has the status of an instrumental rather than a substantive rule. It is therefore by reference to Member States' application of other legislative provisions to situations provided for and governed by conventional law that Article 9 of the Agreement requires them, in the absence of adequate and logical justification, not to treat their own citizens and Turkish citizens resident in the national territory differently. Moreover, freedom of establishment, which is at issue in the main proceedings, comes within the scope of the Agreement. [FN34] Finally, paragraph 21 of HC 510 is to be interpreted as subjecting to official authorisation by the Secretary of State the establishment in the United Kingdom for business purposes only of persons who are citizens of a non-member country, admitted under a tourist visa. [FN35] It would seem, therefore, that Mr Savas's situation falls within an area in which the obligation of equal treatment may operate directly. The rights of establishment and residence relied on by him are said to flow from the combined application of the principle of non-discrimination *746 and British immigration legislation, which appears to allow British and Community citizens to set up and run businesses without the need for appropriate authorisation. Recognition of the direct effect of Article 9 of the Agreement would therefore be sufficient to grant Mr Savas effective legal protection, as long, of course, as the application of the relevant British legislation

gives rise to overt discrimination on grounds of citizenship to the detriment of Turkish citizens. [FN36] FN34 Although it is undoubtedly significant that the Additional Protocol lacks a special provision, similar to Article 37 as regards the free movement of workers (see fn. 40 below), reaffirming the obligation of Member States to ensure equal treatment between Turkish citizens and its own citizens in regard to freedom of establishment. FN35 A restriction on freedom of establishment such as making access to self-employment conditional upon a previous individual administrative authorisation, laid down by the legislation of a Member State in respect of foreign nationals from the Community intending to establish themselves there even if they satisfy the conditions laid down by the legislation of that State for its own citizens, is clearly contrary to the relevant Treaty rules, even if the occupation in question is amongst those regulated (see inter alia, Case 11/77, Patrick v. Ministre des Affaires Culturelles: [1977] E.C.R. 1199; [1977] 2 C.M.L.R. 523, para. [15]). FN36 I have already observed that the Agreement lacks a provision corresponding to Article 52 of the E.C. Treaty, which constitutes a specific expression, in the matter of freedom of establishment, of the general principle of non-discrimination on grounds of nationality (see para. 15 above and fn. 34). Therefore, where persons not enjoying protection under a more specific rule of Community law are found to have been unjustifiably discriminated against, the national rules which offend the equal treatment obligation may be held contrary to Article 9 of the Agreement (see, mutatis mutandis, the Opinion of Advocate General Jacobs in Case 305/87, E.C. Commission v. Greece: [1989] E.C.R. 1461; [1991] 1 C.M.L.R. 611, para. [14]). Moreover, the principle is well established in the Court's case law whereby Article 6 of the E.C. Treaty is designed to apply independently only in situations governed by Community law for which the Treaty does not establish specific rules of non-discrimination on grounds of citizenship (see inter alia, Joined Cases C 92 & 326/92, Collins v. Imtrat Handelsgesellschaft mbH and Others: [1993] E.C.R. I-5145; [1993] 3 C.M.L.R. 773; Case C-43/95, Data Delecta Aktiebolag and Another v. MSL Dynamics Ltd: [1996] E.C.R. I-4661; [1996] 3 C.M.L.R. 741; and Case C-85/96, MartÍnez Sala v. Freistaat Bayern: [1998] E.C.R. I-2691, para. [63]). Moreover, examination of the question of discrimination--which I have set out above in hypothetical terms--is not precluded by the fact that neither the national court nor Mr Savas has referred to Article 9. According to the case law, the Court of Justice has the power, when giving judgment under Article 177 of the E.C. Treaty, also to take into account provisions of Community law other than those raised by the national court in its questions but which appear relevant for the purposes of resolving the dispute in the main proceedings. [FN37] FN37 See, inter alia, Case 70/77, Simmenthal SpA v. Amministrazione delle

Finanze dello Stato: [1978] E.C.R. 1453; [1978] 3 C.M.L.R. 670; Case 35/85, Procureur de la Republique v. Tissier: [1986] E.C.R. 1207; [1987] 1 C.M.L.R. 551; Case C-114/91, Criminal Proceedings against Claeys: [1992] E.C.R. I-6559; and Case C-280/91, Finanzamt Kassel-Goethestrasse v. Viessmann KG: [1993] E.C.R. I-971; [1993] 3 C.M.L.R. 153, para. [15]. 19. In my additional Opinion in Sürül, [FN38] subsequent to the closure of the written stage of these proceedings, I explained that Article 9 of the Agreement has direct effect in the legal systems of the Member States. [FN39] I then suggested that it should be interpreted, in conjunction with Articles 37 and 39 of the Additional Protocol, [FN40] as precluding a *747 Member State from requiring a Turkish citizen in Mrs Sürül's position, [FN41] as a condition for the grant of a family benefit such as the dependent child allowance and additional amount provided for by German law, to hold a specific type of residence permit allowing the person concerned to remain in the national territory on a stable basis, where no such document is required of its own citizens residing in the national territory. [FN42] FN38 Opinion of Advocate General La Pergola, cited above at fn. 11. FN39 See ibid., paras 6-12. FN40 As regards conditions of work and remuneration, Article 37 of the Additional Protocol requires each Member State (thus with no condition of reciprocity on the part of Turkey) to apply to workers of Turkish nationality employed in the Community rules which do not "discriminate on grounds of nationality between such workers and workers who are nationals of other Member States of the Community". Article 39 provides that "the Council of Association shall adopt social security measures for workers of Turkish nationality moving within the Community and for their families residing in the Community". FN41 That is to say, a Turkish citizen who is: (i) authorised to join her spouse for the sake of family unity, such spouse also being a Turkish citizen resident in the territory of a Member State, who, in addition to pursuing university studies, is employed there on the basis of a temporary work permit up to a maximum number of hours per week as an occasional worker, and (ii) legally resident with her spouse in the host Member State. FN42 In its judgment in Sürül (see fn. 11 above), the Court finally came to a similar solution, basing it--as I suggested in my earlier Opinion of 12 February 1998 in Case C-262/96 --on Article 3(1) of Decision 3/80, the Provision with Which the Questions Referred for A Preliminary Ruling by the German National Court Were Concerned. the Court Held, Moreover, That the Rule of Equal Treatment In Article 3(1) of Decision 3/80 Lays Down A Precise Obligation As to the Result and, by Virtue of ITS Nature, Can be Relied on by An Individual In

Proceedings before A National Court As A Basis for Requesting It to Disapply the Discriminatory Provisions of the Legislation of A Member State under Which the Grant of A Right Is Subject to A Condition Not Imposed on Nationals, Without There Being Any Need for That Purpose to Adopt Additional Implementing Measures. the Court Drew Support for That Finding from the Fact That Article 3(1) Constitutues Merely the Implementation and the Concrete Expression, In the Particular Field of Social Security, of the General Principle of Non-Discrimination on Grounds of Nationality Laid Down In Article 9 of the Agreement, Which Refers to Article 6 of the E.C. Treaty (now, after amendment, Article 12 E.C.) (see paras [63] & [64] of the judgment, cited in fn. 11 above). 20. In contrast to Sürül, however, I consider that applying the general prohibition of discrimination on grounds of citizenship, imposed by the Agreement upon the Member States and Turkey, cannot entail acceptance of Mr Savas's claim for the grant of leave to remain as if he were a British, or at any rate a Community, citizen. That does not mean that the rights of establishment and residence cannot in principle fall within the scope of the prohibition of discrimination on grounds of citizenship. I maintain, however, that--in assessing whether the differentiated treatment accorded by British legislation to a person in Mr Savas's situation constitutes "discrimination on grounds of nationality" within the meaning of Article 9 of the Agreement--it is necessary not to lose sight of a fundamental principle to which I have already referred a number of times [FN43]; the overall position in which the Agreement places Turkish citizens cannot be assumed to be generally equivalent to that enjoyed by Community citizens under the Treaty. To enable each Member State to retain control over migrant flows entering its own territory, the requirements for entry of Turkish migrant workers are determined solely by national law, and the possibility of the persons concerned obtaining work permits depends exclusively on the lawfulness of their position with regard to the right of residence. The criterion in question was elicited by the Court when interpreting Article 6 of Decision 1/80, [FN44] but which *748 cannot fail to apply to freedom of establishment as well. As the British authorities have correctly observed, under the system established by the EEC-Turkey Association the rights granted to Turkish citizens are accorded for the sole purpose of allowing those migrants who are already legally present in its territory as workers (whether employed or self-employed) the better to integrate into the socio-economic fabric of the host Member State. [FN45] That is clearly not the case with Mr Savas, who has opted for concealed de facto establishment and subsequent regularisation of his position on the strength of a fait accompli. In my opinion, therefore, a Turkish citizen--who, like Mr Savas, has been permitted to enter and remain in the territory of a Member State for a brief period in his capacity as a tourist, subject to an absolute prohibition on working, and who has instead remained there in secret, long enough to set up and run businesses there--should not be permitted to avail himself of Article 9 of the Agreement in order to obtain the right of establishment in a Member State without the prior official authorisation prescribed by national law.

FN43 See fnn 27 and 28 above, and related text. FN44 See fn. 25 above. FN45 Such as, for example, a Turkish citizen relying on the prohibition of discrimination on grounds of nationality in order to claim an extension of his residence permit in the host Member State so as to continue to pursue an activity there as a self-employed person or a business already lawfully authorised. 21. Finally, in view of the negative answer which I suggest that the Court should give to the first and third questions referred by the national court, I need scarcely add that there is no need to examine the remaining questions.

Conclusion For the reasons given above, I propose that the Court should reply to the questions referred by the High Court of Justice, Queen's Bench Division, as follows: Article 13 of the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by Turkey, of the one part, and by the Member States of the EEC and the Community, of the other part, does not constitute a rule having direct effect in the internal legal systems of the Member States. Article 41(1) of the Additional Protocol, signed by the contracting parties in Brussels on 23 November 1970 and annexed to that Agreement, imposes on Member States a clear, precise and unconditional obligation not to introduce new restrictions on the freedom of establishment of Turkish citizens compared with those existing on 1 January 1973. Article 41(1) does not confer either a right of establishment or a right of residence on a Turkish citizen who has remained in the territory of a Member State after expiry of the validity of a lawful tourist entry visa, in breach of the national immigration legislation of that State, and who has worked there as a *749 self-employed person. In those circumstances, therefore, the provision in question does not preclude the competent authorities of the host Member State from refusing, on the basis of the relevant legislation in force on 1 January 1973, to allow the Turkish migrant worker to remain in its territory. JUDGMENT [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 E.C. Treaty (now Article 234 E.C.) 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 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 ("the Association Agreement") [FN46] 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 2760/72 ("the Additional Protocol"). [FN47] FN46 [1973] O.J. C133/1. FN47 [1973] O.J. C113/17. [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. [FN48] FN48 See the fourth recital in the preamble and Article 28. [4] To that end, the Association Agreement involves a preparatory stage enabling 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 *750 entailing closer co-ordination 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 E.C. 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 *751 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 U.K. 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 *752 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 *753 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 U.K. 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? *754 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. [FN49] FN49 See, in particular, Case C-262/96, Sürül v. Bundesanstalt für Arbeit: [1999]

E.C.R. I-2685, para. [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. [FN50] FN50 Case 12/86, Demirel v. Stadt Schwäbisch Gmünd: [1987] E.C.R. 3719; [1989] 1 C.M.L.R. 421, paras [23] & [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 E.C. Treaty, the principle of eliminating restrictions on freedom of establishment between the *755 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 E.C. 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. [FN51] FN51 Case 6/64, Costa v. Ente Nazionale per l'Energia Elettrica (Enel): [1964] E.C.R. 585, at p. 596; [1964] C.M.L.R. 425. [48] Since the wording of Article 41(1) of the Additional Protocol is almost identical to that of Article 53 of the E.C. Treaty, it must be regarded as being directly applicable for the same reasons. 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 of entry into force of that Protocol in the host Member State. It is for the national court to *756 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. [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 2/76 of the Association Council on the implementation of Article 12 of the Ankara Agreement (not published) and Article 13 of Decision 1/80 of the Association Council 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. [FN52] FN52 Case C-192/89, Sevince v. Staatssecretaris Van Justttie: [1990] E.C.R. I-3461; [1992] 2 C.M.L.R. 57, paras [18] & [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 Turkey to the Community at a later date. [FN53] FN53 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. [FN54] FN54 See, Sürül, cited above, at para. [72], and, by analogy, Case 87/75, Bresciani v. Amministrazione delle Finanze: [1976] E.C.R. 129; [1976] 2 C.M.L.R. 62, para. [23]; Case C-18/90, Office National de l'Emploi v. Kziber: [1991] E.C.R. I-199, para. [21]; and Case C-469/93, Amministrazione delle Finanze dello Stato v. Chiquita Italia SpA: [1995] E.C.R. I-4533, para. [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 *757 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. [FN55] FN55 See, in particular, Case C-171/95, Tetik v. Land Berlin: [1997] E.C.R. I-329; [1997] 2 C.M.L.R. 245, para. [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. [FN56] FN56 See, in particular, Tetik, para. [29]. [60] Finally, it is true that the employment rights thus conferred on Turkish workers necessarily imply the existence of a corresponding *758 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 [FN57] and that such persons may therefore claim an extension of their residence in the Member State concerned in order to continue lawful employment there. [FN58] 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. [FN59] FN57 See, to that effect, Sevince, cited above, para. [29]; Case C-237/91, Kus v. Landeshauptstadt Wiesbaden: [1992] E.C.R. I-6781; [1993] 2 C.M.L.R. 887, para. [29]; Case C-434/93, Bozkurt v. Staatssecretaris Van Justitie: [1995] E.C.R. I-1475, para. [28]; and Case C-340/97, Nazli v. Stadt Nürnberg: Not yet reported, para. [28]. FN58 See, in particular, Kus, para. [36]; Case C-36/96, Günaydin and Others v. Freistaat Bayern: [1997] E.C.R. I-5143; [1998] 1 C.M.L.R. 871, para. [55]; Case C-98/96, Ertanir v. Land Hessen: [1997] E.C.R. I-5179, para. [62]; and Case C-1/97, Birden v. Stadtgemeinde Bremen: [1998] E.C.R. I-7747; [1999] 1 C.M.L.R. 420, para. [69]. FN59 Sevince, para. [30]; Kus, paras [12] & [22]; and Bozkurt, para. [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. [FN60] FN60 Case C-285/95, Kol v. Land Berlin: [1997] E.C.R. I-3069; [1997] 3 C.M.L.R. 1175, para. [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 *759 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, secondly, 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 *760 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. Costs [73] The costs incurred by the U.K., German, Greek, French and Italian Governments, and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Order On those grounds, THE COURT (Sixth CHAMBER), in answer to the questions referred to it by the Queen's Bench Division of the High Court of Justice of England and Wales, by order of 24 April 1997, HEREBY RULES:

-- Article 13 of the Agreement establishing an Association between the European Economic Community and Turkey signed at Ankara on 12 September 1963 by Turkey, of the one part, and the Member States of the EEC and the Community, of the other part, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732 and Article 41(2) of the Additional Protocol signed at Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation 2760/72 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 *761 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.

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