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territory, is that competent authority people, [so as to facilitate] the accession of obliged to take into account the exis- Turkey to the Community at a later date'. 2 tence of the Agreement together with In pursuit of those objectives, the Associa- the Additional Protocol? tion 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 eco- nomic policies of the contracting parties; and (iii) a final stage based on the customs 5. If the answer to question four is "yes", union and entailing closer coordination of is the competent authority in the those economic policies. 3 The rules for Member State required to have regard applying the final stage were laid down by to the principle of proportionality in Decision No 1/95 of the EC-Turkey Asso- exercising its discretion? ciation Council. 4

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?'

3. The Additional Protocol — whereby the Articles 13 and 14 of the Agreement of intention of the parties was to lay down the Association, determine the timetable and conditions, arrangements and timetables rules for the progressive abolition by the for the implementation of the transitional Contracting Parties, between themselves, of stage provided for in the Agreement (see restrictions on freedom of establishment point 2 above) and which replaced the and on freedom to provide services. The protocols originally annexed thereto —· Council of Association shall, when deter- was approved on behalf of the Community mining such timetable and rules for the by Council Regulation (EEC) No 2760/72 various classes of activity, take into account of 19 December 1972. 6In accordance with corresponding measures already adopted Articles 62 and 63(2) of the Additional by the Community in these fields and also Protocol, the latter with its annexes con- the special economic and social circum- stitutes an integral part of the Agreement stances of Turkey. Priority shall be given to and entered into force on 1 January 1973 activities making a particular contribution (the day on which the United Kingdom to the development of production and joined the Community). trade'. 7

Article 41 of the Additional Protocol, the second Community provision cited by the national court, appears in Chapter II ('Right of establishment, services and trans- port') under Title II ('Movement of persons and services') and provides:

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 5. Mr and Mrs Savas entered the United or not, may be granted indefinite leave to Kingdom on 22 December 1984 on a remain depending on the particular circum- regular tourist visa valid for one month, stances of his case. In the Secretary of expressly subject to a condition prohibiting State's view, however, Mr and Mrs Savas them from working, in either an employed did not meet either of those criteria, nor or self-employed capacity. According to the could they point to any other relevant national court, it is unclear precisely how circumstances justifying the exercise of his Mr and Mrs Savas occupied and main- discretion in their favour, such as special tained themselves between 21 January ties with the host State or possible huma- 1985, when the entry visa expired, and nitarian grounds. 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 The couple's appeal against the decision to of the Home Office ('IND'), through their make a deportation order was dismissed by solicitors they applied for leave to remain the Immigration Adjudicator by a determi- in the United Kingdom on the basis of the nation of 13 December 1994. A subsequent- relevant provisions of national law. On application by Mr Savas for leave to appeal 1 July 1991, the IND asked the couple for against that determination before the Immi- information on their financial situation. gration Appeal Tribunal was rejected as out However, owing to an administrative error, of time. Meanwhile, in September 1994, he the IND did not promptly examine subse- had begun to operate his second fast food quent correspondence from Mr and Mrs business. On 31 August 1995, deportation

7. On 30 October 1995, M r Savas's repre- sentatives invoked Article 41 of the Addi- 8. In the proceedings before the national tional Protocol for the first time in support court, M r Savas argued that Article 41 of of the application for leave to remain. They the Additional Protocol required the Secre- argued that that provision, having direct tary of State to consider his application effect, prevented the United Kingdom from under paragraph 21 of H C 510, applicable imposing further restrictions on the right of to all persons admitted to the United Turkish nationals to establish themselves in Kingdom as visitors at any time, whatever its territory beyond those already in force their status for immigration purposes at the on 1 January 1973, the date of that coun- time of legal proceedings. In the alternative, try's accession to the Community, and he argued that, even if paragraph 21 of H C contained in H C 510, the domestic provi- 510 were deemed not to apply to him, his sion which at that time governed control of application for leave to remain should have immigration subsequent to the entry of been examined on the basis of the preamble foreigners on to national territory. 8 On to and Article 13 of the Association Agree- 1 May 1996, the Secretary of State adopted ment and Article 41 of the Additional Protocol. That examination would have led to the conclusion that, in the circum- 8 — Under paragraph 21 of H C 510, 'People admitted as visitors may apply for the consent of the Secretary of State to their stances of the case, deportation would be a establishing themselves [in the United Kingdom] for the purpose of setting up in business, whether on their own disproportionate penalty for the alleged account or as partners in a new or existing business. Any breach of the national immigration rules. 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 9. In reply, the Secretary of State has stated end of the period for which he was admitted initially.' that the Agreement cannot be relied upon

by persons who are not lawfully present in duration of his leave to remain for as long a Member State or otherwise entitled by as Mr Savas. national law to apply to enter its territory. Furthermore, persons in Mr Savas's posi- tion cannot in any event invoke the Agree- ment 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 II — Legal analysis nationals in force on 1 January 1973.

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. 10 9 — Paragraph 4 of H C 510, concerning extension or variation or leave to remain, provided: 'The succeeding paragraphs set out the main categories of people who may tic given limited leave to enter |the United Kingdom! and who may seek

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ings before the national courts by any prevent certain of its provisions from being person concerned in order to challenge the directly applicable. 15 I therefore conclude, lawfulness, and thus the application, of in relation to the second question referred, legislation adopted by any Member State that Article 41(1) of the Additional Proto- which makes the establishment of Turkish col — unlike Article 13 of the Agree- citizens in its territory subject to further ment — lays down a sufficiently precise restrictions, in addition to those existing on and unconditional rule for the national 1 January 1973. 14 courts to be able to apply it immediately as being suited to regulating the legal position of individuals.

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The on taking up employment. He therefore provision having direct effect, to be found maintains that the Court should give an in Article 41(1), cannot therefore provide affirmative answer to the first and third any basis for Mr Savas's claim that the questions. treatment of Turkish professional practi- tioners and businessmen is to be brought fully into line with the principles laid down by the Treaty with regard to the right of establishment. 15. However, I am not swayed by Mr Savas's arguments.

The fact remains that, in the case-law of the Court of Justice, be the context of the measures governing the based as far as possible on the principles EC-Turkey Association, there is no provi- sion corresponding to Article 52 in the system established by the Treaty. It is true 17 — See, in particular, Decisions Nos 2/76 and 1/80 (referred to that the contracting parties have under- in footnote 14 above) of the Association Council adopted for the purpose of implementing Article 12 of the Agree- taken to achieve freedom of establishment ment and Article 36 of the Additional Protocol. According to Article 12 of the Agreement: 'The Contracting Parties between themselves, taking as their basis agree to be guided by Articles 48, 49 and 50 of the Treaty for that purpose the relevant provisions of establishing the Community [now Articles 39, 40 and 41 EC, the first two following amendment] for the purpose of

See State after working there, a Turkish national's right of also Decision N o 3/80 of the Association Council of residence, as implicitly but necessarily guaranteed by 19 September 1980 on the application of the social Article 6 of Decision N o 1/80 (see footnote 18 below) as security schemes of the Member States of the European a corollary of legal employment, ceases to exist if the Communities to Turkish workers and members of their person concerned becomes totally and permanently inca- families (OJ 1983 C 110, p. 60), adopted on the basis of pacitated for work (see Case C-434/93 Bozkurt v Staats- Article 39 of the Additional Protocol. secretaris van justitie [1995] ECR 1-1475, paragraph 40).

arising under Articles 48, 49 and 50 of the respect that 'in contrast to nationals of Treaty, the only workers who may benefit Member States, Turkish workers arc . . . not from those rules, and thus from the rights entitled to move freely within the Commu- modelled on those laid down by the Treaty, nity but benefit only from certain rights in are those who satisfy the requirements laid the host Member State whose territory they down by Decision No 1/80 (i.e. those duly have lawfully entered and where they have registered as belonging to the labour force been in legal employment for a specified of the host Member State who have been period'. 19 In other words, it is undisputed lawfully employed for a certain period). 18 that, by virtue of the Agreement, the The Court of Justice has stated in that position of Turkish workers undoubtedly differs from that of citizens of other non-

The provisions of Section 1 ('Questions relating to employment and the free movement of workers') of Chapter 11 ('Social and the right to remain there, to obtain provisions') of Decision N o 1/80 — concerning Un- renewal of a work permit and freely to take employment rights m the host Member State of Turkish workers who nave been lawfully employed there for a up any form of employment. 20 By the same given period (Article 6) and members of their families (Article 7) — constitute a further step towards the achieve- token, the Court of Justice has frequently ment of freedom of movement for workers.

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 No 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 Bozhurt, cited in footnote 19 above, paragraph 27) —presupposes a stable and secure situation as a member of the labour force of a Member State, and 19 — See Tetik, cited i n footnote 18 above, paragraph 29. thereby implies the existence of an undisputed right of 20 — See the Opinion of Advocate General Darnion in Case residence (sec, for example, Sernice, cited m footnote 14 C-355/9Ì Iroyln v land Baden-Württemberg [1994] KCR above, paragraph 30; and Kus, cited in footnote 16 above, 1-5116, paragraphs 23 to 25. The Advocate General did, it

stable situation and are thus to be regarded as merely from that premiss merely that the actual concept of provisional. Moreover, in such circumstances, the employ- worker, arising from the Agreement, cannot be interpreted ment of the person concerned cannot give rise to any rights 'very differently' from the Community meaning of worker in his favour or arouse any legitimate expectation on his arising from the case-law of the Court of Justice, at any part (see Case C-285/95 Ko/ v land Berlin [1997] ECR rate in the absence of anything to indicate a restrictive I-3069, paragraphs 21 and 25 to 29). interpretation.

Turkish citizens to their territory and the paragraphs 18-20 below). They merely conditions of their first employment. 21 undertook to abolish them gradually, although the undertaking was not imple- mented. In the matter of establishment, therefore, the Member States have, in my opinion, maintained their essentially unconditional power to regulate the entry The crucial factor for the purposes of this and residence of Turkish nationals on their Opinion is that the principle of non- territory, the rules for their inclusion in the equivalence which applies to Turkish work- national labour market (see footnote 21 ers must apply a fortiori, for the reasons above), and the position of Turkish work- given above (point 15), to Turkish citizens ers already lawfully active in that market in intending to migrate to the Community in their capacity as professional practitioners order to pursue an activity as self-employed or businessmen. I therefore conclude that

By concluding the Agreement and the Addi- tional Protocol, therefore, the contracting parties did not encroach upon the restric- tions on the freedom in question which already existed on 1 January 1973 (save for the possible impact in this area of the general principle of non-discrimination laid down in Article 9 of the Agreement; see 17. The Commission argues that a person in Mr Savas's position would not be able to 21 — See, inter alia, Kus, cited at footnote 16 above, paragraph claim any rights under Article 41(1), even if 25, and Günaydin, cited at footnote 18 above, paragraph 23, concerning Decision N o 1/80, cited above at footnote his presence in the host Member State were 13, which in the view of the Court merely regulates, particularly in Article 6, cited above at footnote 22, the lawful under national law. I would endorse situation of Turkish workers already integrated into the that point of view. I cannot share the labour force of a Member State. Similarly, the first paragraph of Article 7 of Decision N o 1/80 — whilst unanimous conclusions reached on that providing that the members of the family of a Turkish worker duly registered as belonging to the labour force of a point by the national governments in this Member State are entitled to take up employment in that case. In their view, if a Turkish worker country after being legally resident there for a specified period — does not thereby affect the power of the Member resides in the host Member State by virtue State concerned to authorise any such persons to join the Turkish worker legally employed there, to regulate their of a legitimate entitlement under national stay until they become entitled to respond to any offer of law, that is relevant for the purpose of employment and, if necessary, to allow them, under such conditions as it may specify, to take up employment before assessing the lawfulness of his employment, the expiry of the initial period of three years laid down by the first indent (see Case C-351/95 Kadiman v Freistaat on which the enjoyment by Turkish Bayern [1997] ECR I-2133, paragraph 32). migrants of the specific rights granted by

At first sight, those provisions might be thought capable of being applied in the

23 — Article 8 of the Agreement states: 'In order to attain the objectives set out in Article Ί (i.e. the progressive estab­ lishment of a customs union and the closer aliimment of Turkish economic policies with those of the Community in order to ensure the proper functioninp, ol the Association 18. That said, I would like for the sake of and the progress of the joint measures thereby rei|inred|, the Council tir Association shall (...) determine the completeness to add a few reflections on an conditions, rules and timetable for the implementation of the provisions relating to the fields covered by the Treaty establishing the Community which must be consideren; this shall apply in particular to such of those fields as are mentioned under tins Title and to any protective clause 22 — See footnote 18 above, and related text. which may prove appropriate'.

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26 — I have already observed that the Agreement lacks a provision corresponding to Article 52 of the EC 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 point 15 above and footnote 24). Therefore, where persons not 24 — Although it is undoubtedly significant that the Additional enjoying protection under a more specific rule of Commu- Protocol lacks a special provision, similar to Article 37 as nity law are found to have been unjustifiably discriminated regards the free movement of workers (see footnote 30 against, the national rules which offend the equal treat- below), reaffirming the obligation of Member States to ment obligation may be held contrary to Article 9 of the ensure equal treatment between Turkish citizens and its Agreement (see, mutatis mutandis, the Opinion of Advo- own citizens in regard to freedom of establishment. cate General Jacobs in Case 305/87 Commission v Greece 25 — A restriction on freedom of establishment such as making [1989] ECR 1-1468, paragraph 14). Moreover, the princi- access to self-employment conditional upon a previous ple is well established in the Court's case-law whereby individual administrative authorisation, laid down by the Article 6 of the EC Treaty is designed to apply indepen- legislation of a Member State in respect of foreign dently only in situations governed by Community law for nationals from the Community intending to establish which the Treaty does not establish specific rules of non- themselves there even if they satisfy the conditions laid discrimination on grounds of citizenship (see inter alia, down by the legislation of that State for its own citizens, is Joined Cases C-92/92 and C-326/92 Collins v Imtrat clearly contrary to the relevant Treaty rules, even if the Handelsgesellschaft [1993] ECR I-5145; Case C-43/95 occupation in question is amongst those regulated (see, Data Delecta v MSL Dynamics [1996] ECR 1-4661; and inter alia, Case 11/77 Patrick [1977] ECR 1199, paragraph Case C-85/96 Martinez Sala [1998] ECR 1-2691, para- 15). graph 63).

20. In contrast to Sürül, however, I con- sider that applying the general prohibition of discrimination on grounds of citizenship, imposed by the Agreement upon the Mem- ber States and Turkey, cannot entail accep- 19. In my additional Opinion in Sürül, 28 tance of Mr Savas's claim for the grant of subsequent to the closure of the written leave to remain as if he were a British, or at stage of these proceedings, I explained that any rate a Community, citizen.

f iminary ruling by the German national court were concerned. The Court held, moreover, that the rule of paragraph 15. equal treatment in Article 3(1) of Decision No 3/80 lays 28 — Opinion of Advocate General La Pergola in Case C-262/96 down a precise obligation as to the result and, by virtue of its nature, can be relied on by an individual in proceedings Sürüt v Bundesanstalt für Arbeit [1999] ECR I-2726. before a national court as a basis for requesting it to 29 — See ibid., points 6 to 12. disapply the discriminatory provisions of the legislation of 30 — As regards conditions of work and remuneration, Arti- a Member State under which the grant of a right is subject cle 37 of the Additional Protocol requires each Member to a condition not imposed on nationals, without there State (thus with no condition of reciprocity on the part of being any need for that purpose to adopt additional Turkey) to apply to workers of Turkish nationality implementing measures. The Court drew support for that employed in the Community rules which do not 'discrimi- finding from the fact that Article 3(1) constitutes merely nate on grounds of nationality between such workers and the implementation and the concrete expression, in the workers who are nationals of other Member States of the particular field of social security, of the general principle of Community'. Article 39 provides that 'the Council of non-discrimination on grounds of nationality laid down in Association shall adopt social security measures for work- Article 9 of the Agreement, which refers to Article 12 ers of Turkish nationality moving within the Community (formerly Article 6) of the EC Treaty (see paragraphs 63 and for their families residing in the Community'. and 64 of the judgment, cited in footnote 10 above).

not mean that the rights of establishment socio-economic fabric of the host Member and residence cannot in principle fall State. 34 That is clearly not the case with within the scope of the prohibition of M r Savas, who has opted for concealed de discrimination on grounds of citizenship. I facto establishment and subsequent régu- maintain, however, that — in assessing larisation of his position on the strength of whether the differentiated treatment accor- a fait accompli. In my opinion, therefore, a ded by British legislation to a person in M r Turkish citizen — who, like M r Savas, has Savas's situation constitutes 'discrimination been permitted to enter and remain in the on grounds of nationality' within the territory of a Member State for a brief meaning of Article 9 of the Agreement — period in his capacity as a tourist, subject to it is necessary not to lose sight of a an absolute prohibition on working, and fundamental principle to which I have who has instead remained there in secret, already referred a number of times; 33 the long enough to set up and run businesses overall position in which the Agreement there — should not be permitted to avail places Turkish citizens cannot be assumed himself of Article 9 of the Agreement in to be generally equivalent to that enjoyed order to obtain the right of establishment in by Community citizens under the Treaty. a Member State without the prior official To enable each Member State to retain authorisation prescribed by national law. 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 lawful- ness 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 N o 1/80 (see footnote 18 above), but which cannot fail to apply to freedom of establishment as well. As the British authorities have correctly observed, under the system established by the EC- 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 w o r k e r s ( w h e t h e r e m p l o y e d or self- 2 1 . Finally, in view of the negative answer employed) the better to integrate into the 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.

Article 13 of the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of 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 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.

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