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URL: http://www.bailii.org/eu/cases/EUECJ/2013/C22111_O.html
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OPINION OF ADVOCATE GENERAL
CRUZ VILLALÓN
delivered on 11 April 2013 (1)
Case C-221/11
Leyla Ecem Demirkan
v
Federal Republic of Germany
(Request for a preliminary ruling from the Oberverwaltungsgericht Berlin-Brandenburg, Germany)
(EEC-Turkey Association Agreement – Article 41(1) of the Additional Protocol – Standstill clause – Freedom to provide services – ‘Passive’ freedom to provide services – Entry for Turkish nationals without a visa – Whether the ‘passive’ freedom to provide services extends to visiting relatives)
1. Does Article 41(1) of the 1970 Additional Protocol to the 1963 Association Agreement between the European Economic Community and the Republic of Turkey (‘Additional Protocol’) also protect service recipients? In my view, that is the issue at the heart of the present request for a preliminary ruling.
2. The problem arises from the confluence of two different strands of the Court’s case-law. The first concerns Article 41(1) of the Additional Protocol (also known as ‘the standstill clause’). This provision prohibits the Contracting Parties from introducing any new restrictions on the freedom of establishment and the freedom to provide services. In Soysal and Savatli, the Court held that, under certain conditions, the introduction by Member States of a visa requirement for Turkish nationals engaged in the provision of services may infringe the standstill clause. (2) The restrictions on the freedom to provide services that the Court has been required to examine hitherto in connection with the standstill clause always concerned the activities of service providers.
3. The second strand of case-law concerns the freedom to provide services protected pursuant to Article 56 TFEU. According to settled case-law, since the judgment in Luisi and Carbone, (3) this also confers rights on the recipients of services (referred to as ‘freedom to receive services’ or ‘passive freedom to provide services’).
4. The case at hand presents the Court with the opportunity to clarify whether the notion of passive freedom to provide services included within Article 56 TFEU is also protected under Article 41(1) of the Additional Protocol.
5. The request for a preliminary ruling was made in the context of a legal dispute between Ms Demirkan, a Turkish national, and the Federal Republic of Germany. In that dispute, Ms Demirkan seeks a declaration that for purposes of visiting her German stepfather she may enter the Federal Republic of Germany without a visa, or, in the alternative, the grant of a visitor visa.
I – Legal framework
A – International law
6. Since 1958 and 1961 respectively, the Federal Republic of Germany and Turkey have been Contracting Parties to the European Agreement on Regulations Governing the Movement of Persons between Member States of the Council of Europe. Pursuant to the Agreement, nationals of the Contracting Parties, whatever their country of residence, may enter or leave the territory of another Party by all frontiers for visits of not more than three months’ duration on presentation of one of the documents listed in the appendix to the Agreement (Article 1(1) and (2)). A visa is not listed in the appendix to the Agreement.
7. Article 7 of the Agreement allows the Contracting Parties, on grounds relating to ordre public, security or public health, inter alia, to order the temporary suspension of the Agreement in respect of some of the other Parties. A measure of that kind must be notified immediately to the Secretary General of the Council of Europe. In 1980, the Federal Republic of Germany gave notice, invoking the authority provided for in Article 7 of the Agreement, that from 5 October 1980 it was introducing a general visa requirement for Turkish nationals.
B – Law of the European Union
1. The EEC-Turkey Association Agreement (4)
8. The Republic of Turkey, the European Economic Community and its Member States signed at Ankara on 12 September 1963 the Agreement establishing an Association between the European Economic Community and the Republic of Turkey (‘the Agreement’). The Agreement was concluded, approved and confirmed on behalf of the European Economic Community by Council Decision 64/732/EEC. (5)
9. Pursuant to Article 2 thereof, the aim of the Agreement is to promote the strengthening of trade and economic relations between the Parties, while taking 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’. The preamble to the Agreement underlines that aim – also with a view to ensuring a continuous ‘improvement in living conditions in Turkey and in the European Economic Community’ and to reduce the disparity between the Turkish economy and the economies of the Member States of the Community. To that extent, it is considered necessary to provide Turkey with temporary economic aid in order to ‘facilitate the accession of Turkey to the Community at a later date’. In that regard, Article 28 of the Agreement provides for the Contracting Parties to examine the possibility of the accession of Turkey to the Community, ‘[a]s soon as the operation of this Agreement has advanced far enough to justify envisaging full acceptance by Turkey of the obligations arising out of the Treaty establishing the Community’.
10. In order to attain the objectives of the Agreement, a customs union is to be established in three phases. During the preparatory phase Turkey is to strengthen its economy with aid from the Community (Article 3 of the Agreement). During the transitional phase a customs union will be progressively established and economic policies more closely aligned (Article 4 of the Agreement). Lastly, the final stage is based on the customs union and entails closer coordination of the economic policies of the Contracting Parties (Article 5 of the Agreement).
11. In accordance with Article 6 of the Agreement, the implementation and progressive development of the Association are to be ensured by an Association Council in which the Contracting Parties meet. Pursuant to Article 22(1) of the Agreement, in order to attain the objectives of the Agreement, the Association Council is to have the power to take decisions in the cases provided therein. Each of the Parties is to take the measures necessary to implement such decisions. In particular, pursuant to Article 8 of the Agreement, the Association Council is, before the beginning of the transitional stage, to determine the conditions, rules and timetables for the implementation of the provisions relating to the fields covered by the Treaty establishing the Community which must be considered, above all, inter alia, for the fields covered in Title II of the Agreement.
12. Title II of the Agreement (‘Implementation of the transitional stage’) includes, in addition to the previously mentioned Article 8, provisions on a customs union, agriculture, and other economic provisions. With a view to progressively ensuring the freedom of movement for workers and abolishing restrictions on the freedom of establishment and the freedom to provide services, Articles 12 to 14 of the Agreement provide that the Contracting Parties agree to be guided by the relevant provisions of the Treaty establishing the Community.
13. Article 14 of the Agreement is worded:
‘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.’
2. Additional Protocol
14. In order to lay down the conditions, arrangements and timetable for the implementation of the transitional phase (Article 1 of the Additional Protocol), on 23 November 1970, the Parties to the Agreement signed the Additional Protocol, concluded, approved and confirmed on behalf of the Community by Regulation (EEC) No 2760/72.(6) In accordance with Article 62 thereof, the Additional Protocol forms an integral part of the Agreement. Pursuant to Article 63(2), the Additional Protocol entered into force on 1 January 1973 and since that date the Federal Republic of Germany has been bound by its provisions.
15. Under Title II of the Additional Protocol, headed ‘Movement of persons and services’, Chapter II concerns the right of establishment, services and transport. Within Chapter II, Article 41 of the Additional Protocol is worded:
‘(1) The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.
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.’
16. On the basis of Article 41(2) of the Additional Protocol, the Association Council adopted Decision No 2/2000, (7) in which it provided for negotiations aimed at the liberalisation of services between the Community and Turkey to begin in April 2000. However, as yet, no substantive liberalisation of services of that kind has been agreed by the Association Council.
3. Regulation (EC) No 539/2001 and Regulation (EC) No 562/2006
17. Pursuant to Article 5(1)(b) of Regulation (EC) No 562/2006, (8) for stays not exceeding three months in a six-month period, a condition of entry for third-country nationals is that they must be in possession of a valid visa, ‘if required pursuant to Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, except where they hold a valid residence permit’. (9)
18. Article 1(1) of Regulation (EC) No 539/2001 (10) provides that nationals of third countries on the list in Annex I are to be required to be in possession of a visa when crossing the external borders of the Member States. Turkey is listed in Annex I.
C – National law
19. It follows from the order for reference that, on the entry into force of the Additional Protocol for the Federal Republic of Germany on 1 January 1973, pursuant to Paragraph 5(1)(1) of the Verordnung zur Durchführung des Ausländergesetzes (Regulation implementing the Law on foreign nationals; ‘DVAuslG’) of 10 September 1965 (11) in the version of 13 September 1972 (12) in conjunction with the appendix issued in relation thereto (also known as the positive list), Turkish nationals were obliged to obtain a visa prior to entry only if they wished to work in the Federal Republic of Germany. Stays for the purpose of a visit – such as that which the applicant in the main proceedings seeks – were exempted from the requirement for a visa.
20. The Elfte Verordnung zur Änderung der Verordnung zur Durchführung des Ausländergesetzes (Eleventh regulation amending the DVAuslG) of 1 July 1980 (13) introduced a general visa requirement for Turkish nationals.
21. In the assessment of the referring court, at the time the events giving rise to the dispute occurred, the visa requirement for the applicant continued to apply. According to that court, the visa requirement for Turkish nationals follows, in principle, from Paragraph 4(1) of the Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet (Law on residence, employment and integration of foreigners in Germany; ‘AufenthG’) in conjunction with Article 1(1) of and Annex I to Regulation (EC) No 539/2001.
II – Facts and main proceedings
22. Ms Demirkan, the applicant in the main proceedings (‘the applicant’) is a Turkish national who was born in 1993. In 2007, together with her mother, she applied to the German embassy in Ankara for the grant of a Schengen visa in order to visit her stepfather, a German national. The embassy rejected both applications.
23. As a result, the applicant and her mother brought proceedings against the Federal Republic of Germany before the Verwaltungsgericht Berlin (Administrative Court, Berlin, Germany) seeking a declaration that they were entitled to enter without a visa and, in the alternative, requiring the defendant to grant a visitor visa. In the view of the applicant, the right to enter without a visa follows from the standstill clause in Article 41(1) of the Additional Protocol. She argues that, in accordance with that provision, service recipients who are Turkish nationals may rely on the law in force at the date on which the Additional Protocol entered into force, pursuant to which Turkish nationals not seeking to stay for a period of more than three months and not wishing to work in Germany during that period are exempt from the requirement to obtain a visa. In the course of the first instance proceedings, the applicant’s mother was granted a visa for the purposes of family reunification with her German husband and, to that extent, by agreement, the dispute was deemed to have been resolved. Thereafter, the applicant continued to pursue her action alone.
24. By judgment of 22 October 2009, the Verwaltungsgericht rejected the action. In the court’s view, the applicant could not rely on the standstill clause for the simple reason that the clause did not apply to a stay for the purposes of visiting, as sought by the applicant. To that extent, it was unnecessary to determine whether the standstill clause extended also to restrictions on the passive freedom to provide services. Were that to be the case, that would require, in any event, that the purpose of entering the country was the receipt of services. In the court’s view, the incidental receipt of services in connection with a stay effected for the purposes of visiting did not suffice. Moreover, the applicant had no right to the grant of a visa.
25. The applicant brought an appeal against that decision before the referring court, the Oberverwaltungsgericht Berlin-Brandenburg (Higher Administrative Court, Berlin-Brandenburg, Germany), by which she continues to pursue her claims.
III – Questions referred and procedure before the Court
26. By decision of 13 April 2011, the Oberverwaltungsgericht Berlin-Brandenburg stayed the proceedings and, pursuant to Article 267 TFEU, referred to the Court the following questions for a preliminary ruling:
‘(1) Does the passive freedom to provide services fall within the scope of the concept of freedom to provide services within the meaning of Article 41(1) of the Additional Protocol to the Agreement establishing an Association between the European Economic Community and Turkey of 23 November 1970 (Additional Protocol)?
(2) In the event that the first question is answered in the affirmative: does the protection of the passive freedom to provide services under the law on the Association Agreement, specifically pursuant to Article 41(1) of the Additional Protocol, also extend to Turkish nationals, who – like the claimant – do not wish to enter the Federal Republic of Germany in order to receive a specific service, but for the purposes of visiting relatives for a stay of up to three months and rely on the mere possibility of receiving services in the Federal territory?’
27. In addition to the observations of Ms Demirkan and the German Government, written observations were also received from the Governments of the Czech Republic, Denmark, Estonia, France, the Netherlands, Slovakia and the United Kingdom and also from the Council and the Commission.
28. At the hearing on 6 November 2012, arguments were submitted on behalf of Ms Demirkan, the Federal Republic of Germany, the Kingdom of Denmark, the Hellenic Republic, the French Republic, the Kingdom of the Netherlands, the United Kingdom of Great Britain and Northern Ireland, the Council and the Commission.
IV – Legal appraisal
29. By its first question, the referring court seeks clarification whether the standstill clause of the Additional Protocol also includes the passive freedom to provide services. If that is the case, a Turkish national entering the Federal Republic of Germany for the purposes of receiving services could rely on the (more favourable) law at the date on which the Additional Protocol entered into force, that is, the absence at that time of a visa requirement. If the Court answers this question in the affirmative, in the context of the second question it must consider the scope of the passive freedom to provide services.
30. In my view, the answer to the first question must be that the passive freedom to provide services is not included within the scope of the standstill clause of the Additional Protocol. It is thus unnecessary to answer the second question. However, in case the Court reaches a different conclusion, I will also consider this question.
A – First question
31. By its first question, the referring court seeks to establish whether the concept of ‘freedom to provide services’ in Article 41(1) of the Additional Protocol also includes the so-called ‘passive freedom to provide services’.
32. The applicant argues in favour of a wide interpretation of that kind. However, this is rejected by the States participating in the case and by the Commission and the Council.
33. With a view to answering the question, I will first provide an overview of the Court’s existing case-law on the standstill clause, given, in particular, that several States have advanced arguments aimed, ultimately, at reconsidering certain aspects of that case-law. Then, I will clarify the notion of passive freedom to provide services. Finally, I will provide an interpretation of the standstill clause.
1. The Court’s case-law on the standstill clause
34. It is settled-case law that Article 41(1) of the Additional Protocol has direct effect. Turkish nationals covered by the provision may rely on it before national courts to prevent the application of inconsistent rules of national law. The provision is regarded as having direct effect because it lays down, in terms which are clear, precise and unconditional, an unequivocal standstill clause which contains an obligation of the Contracting Parties to refrain from acting. (14)
35. On the other hand, Article 41(1) of the Additional Protocol does not confer on its beneficiaries a substantive right to enter the territory of a Member State, a right of residence, or a right to freedom to provide services. (15) Instead, the provision prohibits the Contracting Parties from introducing new restrictions on the exercise of the freedoms mentioned therein, that is the freedom of establishment and the freedom to provide services. This applies also to provisions concerning the substantive and/or procedural conditions governing the first admission to the territory of the Member State in question of Turkish nationals intending to make use of the freedoms specified. Thus, in practice, the standstill clause specifies, ratione temporis, the provisions of a Member State’s legislation that must be applied for the purposes of assessing the position of a Turkish national who wishes to exercise one of the freedoms listed in Article 41(1) of the Additional Protocol. (16)
36. In Soysal and Savatli, the Court had to apply the above mentioned principles to the visa requirement introduced in Germany in 1980 which was also applicable to the entry of Turkish nationals for the purposes of providing services consisting in the international transport of goods for a Turkish-registered company. The Court held that in relation to persons engaged in the provision of services a visa requirement of that kind constitutes a new restriction on the freedom to provide services prohibited by Article 41(1) of the Additional Protocol. According to the Court, to subject service providers to a visa requirement is liable to interfere with the exercise of that freedom, ‘in particular because of the additional and recurrent administrative and financial burdens involved in obtaining such a permit which is valid for a limited time. In addition, where a visa is denied, ... legislation of that kind prevents the exercise of that freedom.’ (17)
37. In the Court’s view, that conclusion was not called into question by the fact that the German legislation implemented a provision of secondary Community legislation. It reasoned that ‘the primacy of international agreements concluded by the Community over provisions of secondary Community legislation means that such provisions must, so far as is possible, be interpreted in a manner that is consistent with those agreements’. (18)
38. Several of the States participating in the present case and also the Council have advanced arguments which, ultimately, call into question the Court’s reasoning in Soysal and Savatli.
39. Germany, Greece, the United Kingdom and the Council do not regard a visa requirement as impairing the free movement of services. They argue that the grant of a visa is merely an administrative procedure for the purpose of ensuring border controls that does not necessarily make it more difficult to enter but provides persons seeking to enter the country prior to entry with certainty as to whether they satisfy the substantive conditions for entry. In their view, at least in the case of private individuals, as is the case here, and given the fact that a multiple entry visa may be granted thereby reducing visa expense, the costs highlighted by the Court cannot be regarded as significant.
40. I do not agree with that argument. Visa applicants are subject to costs and an administrative burden which a person seeking to enter another country not subject to a visa requirement does not have to endure. Moreover, a visa does not ensure legal certainty as the mere possession of a visa does not automatically entail a right of entry. (19) A different visa policy is conceivable. However, in the present case, it has not been shown that the visa requirement does not impede entry.
41. In particular the Netherlands and the Council regard the permission for Turkish nationals to enter a Member State and thus the Schengen area without a visa in reliance on the standstill clause in a manner not in conformity with Regulation (EC) No 539/2001 as entailing the potential for conflict not only with secondary law but also with the primary law of the EU. They observe that in relation to provisions of that kind international agreements do not have priority. In their view, too wide an interpretation of the standstill clause would jeopardise the objectives of the common visa policy for which, pursuant to Article 77(2)(a) TFEU, the Union has – at least following the exercise of this power – exclusive competence.
42. In the Council’s view, applying Article 41(1) of the Additional Protocol to service recipients would undermine the common visa policy. It asserts that in such a case, in reliance on the domestic law in force at the date the Additional Protocol entered into force, Turkish service recipients could enter – without the need for a visa – not only Germany, Denmark, Ireland and the United Kingdom, all countries affected by the judgment in Soysal and Savatli, but also Belgium, Luxembourg, the Netherlands, France, Italy, Spain and Portugal. Consequently, in relation to nine of the Schengen States, Turkish service recipients would be free to enter without a visa, whereas in relation to fourteen Member States and four further Schengen States they would be subject to a visa requirement. To that extent, they argue, the uniformity of the Schengen area would be seriously jeopardised.
43. Notwithstanding this objection, I do not see any reason in this connection to propose to the Court that it should change its case-law. Admittedly, pursuant to Article 2(2) TFEU, the Member States are prohibited from determining the third countries whose nationals require a visa for the Schengen area. To that extent, in adopting Regulation (EC) No 539/2001, the Union exercised the competence established in Article 77(2)(a) TFEU, which, pursuant to Article 4(2)(j) TFEU, is a shared competence. However, the obligation on a Member State to allow entry without a visa in the context of the standstill clause does not conflict with that division of competence. It conflicts merely with Regulation (EC) No 539/2001. The position adopted by the Netherlands and the Council in effect promotes that regulation to the rank of primary law.
44. The Commission has now taken steps to introduce the modifications to secondary law necessary in relation to service providers as a result of Soysal and Savatli. Making express reference to that judgment, it proposed to amend Article 4 of Regulation (EC) No 539/2001 with the addition of a new paragraph 4: ‘To the extent imposed by the application of Article 41(1) of the Additional Protocol to the Association Agreement between Turkey and the EC, a Member State may provide for exceptions from the visa requirement provided for by Article 1(1), as regards Turkish nationals providing services during their stay’. (20)
45. According to its submissions, the Federal Republic of Germany too has modified the relevant legal and administrative provisions, and exempted Turkish nationals wishing to enter the Federal Republic of Germany to provide defined services from the requirement to obtain a visa to the extent that no visa requirement applied at the date at which the Additional Protocol entered into force for the Federal Republic of Germany.
46. However, as the present case demonstrates, Soysal and Savatli did not resolve all the possible issues arising in connection with the standstill clause. Instead, according to the referring court, since that judgment no agreement could be reached in the domestic case-law or the legal literature whether Article 41(1) of the Additional Protocol also includes the passive freedom to provide services. On that point, Soysal and Savatli is silent.
2. The passive freedom to provide services
47. The notion of the passive freedom to provide services goes back to the now common three-fold typology in relation to the cross-border provision of services. First, the service itself may cross the border without any movement on the part of the service provider or service recipient (also known as ‘services by correspondence’). Second, the service provider may cross the border in order to provide services (‘active freedom to provide services’) and, third, the service recipient may travel to the country of the service provider in order to take advantage of the service (‘passive freedom to provide services’). (21) It is economically feasible and not contradictoryto eliminate restrictions on the first two variants of cross-border services without implying, at the same time, that restrictions on the passive freedom to provide services must also be removed. (22)
48. If, at first glance, the passive freedom to provide services appears to be the mirror image of the active freedom to provide services, (23) a closer examination of the protection accorded to both forms of cross-border service provision exposes distinctions of both a quantitative and qualitative kind. At issue are two variants whose scope in no way coincides. Consequently, the protection accorded to the one form does not entail any necessary implications as regards the protection of the other form.
49. From a quantitative perspective, the active freedom to provide services prevents hindrances to the cross-border movement of service providers, that is, in relation to a relatively clearly defined group. On the other hand, the notion of the passive freedom to provide services counteracts obstacles to the cross-border movement of service recipients. Thus, it includes within the protection of the freedom to provide services the category of service consumers, to which potentially everyone belongs.
50. It is precisely this inclusion of consumers within the scope of the freedom to provide services that results in a qualitative distinction between the two aspects of the freedom. Service providers are closely linked to the protected service. They receive the remuneration paid for the performance of the service. Their capabilities restrict the services that they are able to provide. On the other hand, almost every day, everyone consumes a multiplicity of services without any one of them being characteristic for consumers as market participants. Also, from the perspective of consumers, a service does not have to constitute an economic activity. Namely, according to the Court’s case-law, the remuneration for a service does not necessarily have to be paid by the recipient of the service. (24) In establishing this wide protection for consumers, enabling them to cross borders, the passive freedom to provide services entails a protective element which, in fact, is barely distinguishable from the right to free movement. (25)
51. It is settled case-law that the ‘freedom to provide services’ in Article 56 TFEU includes the passive freedom to provide services. This principle was established in Luisi and Carbone. (26) In that case, the Court held that the passive freedom to provide services was the ‘necessary corollary’ of the freedom for service providers to provide services in order to fulfil the objective of ‘liberalising all gainful activity not covered by the free movement of goods, persons and capital’. (27) However, this does not automatically imply that Article 41(1) of the Additional Protocol also includes the passive freedom to provide services.
3. The concept of ‘freedom to provide services’ included in the standstill clause
52. Whether the notion of ‘freedom to provide services’ in Article 41(1) of the Additional Protocol also includes the passive freedom to provide services must be determined through an interpretation of that provision. Neither the case-law on Article 56 TFEU nor the previous case-law on Article 41(1) of the Additional Protocol includes any findings on that point.
53. As the Additional Protocol is an international treaty, the interpretation thereof must apply the methodology established in the Vienna Convention on the Law of Treaties, (28) whose rules on treaty interpretation are considered customary international law. (29) Pursuant to Article 31(1) of that convention, a treaty ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. The Court has applied that principle – in my view, correctly – in relation to the Agreement. (30)
a) The concept itself
54. The wording of Article 41(1) of the Additional Protocol provides little in the way of assistance for the interpretation of the concept of ‘freedom to provide services’. In German, the concept appears to be formulated more in terms of the provider (through its use of the word ‘Leistung’ i.e. provision) and not the recipient of services. In language versions other than German this can be seen more clearly. (31) However, this wording is simply the usual terminology used in Article 59 of the EEC Treaty in relation to the freedom to provide services.
55. Contrary to the view taken by some of the participants in the proceedings, it cannot be determined with absolute certainty what the Contracting Parties understood under the concept of ‘freedom to provide services’ at the time the Additional Protocol was concluded. Admittedly, it appears clear that they made use of the terminology of the EEC Treaty on the freedom to provide services. However, at the relevant time, the substance of that notion was unclear. The inclusion of the passive freedom to provide services within the notion of freedom to provide services as a matter of Community law was not clarified – as I have set out above – until 1984 with the Court’s judgment in Luisi and Carbone. (32) Prior to that case, indicia existed which were favourable and, equally, others which were unfavourable to the inclusion of the passive freedom to provide services.
56. On the one hand, the 1961 General Programme for the abolition of restrictions on freedom to provide services included weak indicia that the passive freedom to provide services should be facilitated as part of the freedom to provide services.(33) Somewhat clearer is the reference to the passive freedom to provide services in Council Directive 64/220/EEC of 25 February 1964 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services. (34) According to Article 1(1)(b), the abolition of restrictions on movement and residence envisaged by the Directive specifically encompasses those applying to ‘nationals of Member States wishing to go to another Member State as recipients of services’.
57. On the other hand, the inclusion of the passive freedom to provide services within the notion of the freedom to provide services was anything but uncontroversial. As late as 1976, in his Opinion in Watson and Belmann, Advocate General Trabucci expressly rejected such a wide interpretation. He regarded a broad interpretation of that kind as contrary to the wording of Article 59 of the EEC Treaty and inconsistent with the structure of the Treaty which distinguished between the freedom of movement accorded to different categories of market participants. (35) The matter was subject to critical discussion in the legal literature. (36) In order to avoid such uncertainties, the Agreement between the European Community, its Member States and the Swiss Confederation on the free movement of persons which entered into force on 1 June 2002 expressly accords recipients of services the right of entry and residence. (37)
b) Context of the provision
58. Certain indicia for the interpretation of Article 41(1) of the Additional Protocol can be derived from its context. In this regard, it must be observed, first, that Article 41(2) of the Additional Protocol, the provision immediately following the standstill clause, provides that the Association Council shall determine the timetable and rules for the progressive abolition by the Contracting Parties of restrictions on freedom to provide services. Thus, Article 41 of the Additional Protocol establishes a two-pronged legal approach. The standstill clause guarantees that in relation to the freedom to provide services there will be no deterioration in the legal position applicable on the entry into force of the Additional Protocol. Restrictions on the freedom to provide services which remain applicable in accordance with that legal position will be removed through the activities of the Association Council. That body has so far taken no action in that regard. Consequently, in itself, the standstill clause does not aim to remove existing restrictions but simply to prevent a deterioration in the legal position.
59. The limited scope of the standstill clause becomes clear when two further elements are considered. First, Article 59 of the Additional Protocol clarifies that in the areas governed by the Additional Protocol ‘Turkey shall not receive more favourable treatment than that which the Member States accord each other under the Treaty establishing the European Community’. Second, in relation to the standstill clause, the Additional Protocol does not contain any provisions corresponding to Articles 61 TFEU, 51 TFEUand 52 TFEU allowing for the justification of restrictions on the freedom to provide services. This suggests that the Contracting Parties did not presume the standstill clause to have an excessively wide substantive scope such as to remove particularly sensitive policy areas from the purview of national legislative discretion.
60. Moreover, Article 14 of the Agreement – of which the Additional Protocol pursuant to Article 62 thereof forms an integral part – provides that the Contracting Parties agree to be guided by the primary law provisions on the freedom to provide services for the purpose of abolishing restrictions on freedom to provide services between them. The phrase ‘be guided by’ demonstrates that the freedom to provide services established in primary law is intended to serve as a model. However, it makes it equally clear that the freedom to provide services is not to be extended in its entirety to the Association relationship. (38) The expression ‘be guided by’ does not imply uniformity and, instead, permits, in principle, different interpretations.
61. Thus, it may be questioned whether the prevailing interpretation of the freedom to provide services in Article 56 TFEU established in Luisi and Carbone applies also to the standstill clause. On the extent to which the interpretation of Article 56 TFEU may be applied to the standstill clause, the position taken by the Court in Abatay and Others is that ‘the principles enshrined ... in the provisions of the Treaty relating to the freedom to provide services, must be extended, so far as possible, to Turkish nationals’. (39) In order to determine whether the extension of the principles of the Union Treaties to an agreement concluded with a non-member country is possible, in a series of cases, the Court has developed certain criteria.
62. According to that case-law, the similarity or even uniformity between the wording of provisions of an agreement with a non-member country and the corresponding provisions of the Union Treaties does not in itself suffice to extend the case-law on the provisions of the Union Treaties to the agreement with the non-member country. Instead, entirely in accordance with Article 31 of the Vienna Convention on the Law of Treaties, the possibility of extension is dependent on the objectives of the relevant agreements. (40)
63. The fact that an agreement with a non-member country aims at gradual integration with a view to that non-member country’s subsequent accession to the Union must be considered as one of the objectives of the agreement. (41) However, as follows from the Court’s case-law on the Europe Agreement with the Republic of Poland, (42) the existence of that objective does not result in an automatic extension of the case-law on the Union Treaties to the agreement with the non-member country. (43)Pabst and Richarz – to which the applicant refers – does not support a different conclusion. Admittedly, in that case, the Court extended the case-law on the EEC Treaty to the Community’s Association Agreement with Greece. However, it reached that conclusion through an analysis of the objectives of the agreement. (44)
c) Objectives of the agreements
64. Consequently, in order to determine whether the Court’s case-law on Article 56 TFEU is susceptible of application in the context of the standstill clause of the Additional Protocol, the purpose of the Union Treaties must be compared with the purpose of the Agreement, of which the Additional Protocol – pursuant to Article 62 thereof – forms an integral part.
65. Let us consider, first, the objectives of the Agreement. It constitutes what may be described as an ‘accession association’, that is an association agreement which includes the perspective of accession to the Union. (45) In his Opinion in Ziebell, Advocate General Bot took the view that the Agreement is intended to promote trade and economic relations between Turkey and the European Union and has an exclusively economic purpose. (46) That approach was adopted by the Court. (47)
66. Equally decisive is the fact that to a large extent the Agreement constitutes a programme for integration and not a complete, immediately applicable and comprehensive treaty, as demonstrated by its provisions on customs union and fundamental freedoms. (48) In that regard, the Association Council has an important role to play. That body is responsible for ensuring not only the implementation but also the progressive development of the Association, (49) also in relation to the abolition of restrictions on freedom to provide services. (50) In practice, the activities of the Association Council exhibit a major imbalance. For example, in the area of free movement of goods, as a result of Decision No 1/95, laying down the rules for implementing the final phase of the Customs Union (Article 1), the development of the Association is well advanced. (51) In the area of freedom to provide services no significant progress has been made.
67. That objective and structure of the Association Agreement stands in contrast to the objective and structure of the Community and Union Treaties. As case-law has consistently held, their purpose, inter alia, is to create an internal market, that is, to merge the national markets into a single market, the establishment of which involves the abolition of obstacles to the free movement of goods, persons, services and capital between Member States. (52) However, a true internal market can only develop if citizens are acknowledged and protected also in spheres outside of their economic activities. In that context, the development of Union citizenship and the freedom of movement associated therewith has a significant role to play. (53) Placing the Union citizen at the heart of EU law connects the EU with its objectives going far beyond the economic dimension.
68. It must now be decided whether the extension of the freedom to provide services in Article 56 TFEU to include the passive freedom to provide services is a consequence of objectives common to the EU Treaties and the Agreement or whether it is based on the more extensive objectives of the EU Treaties. In light of my observations above on the passive freedom to provide services, it must be concluded that the latter is the case.
69. The extension of Article 56 TFEU to the passive freedom to provide services resulted from the objective to close all gaps in the protection of the freedoms granted by the treaties. (54) That constituted an initial step towards the establishment of free movement for Union citizens. To that extent, the protection afforded by the notion of passive freedom to provide services is based on the objective of establishing a genuine internal market through the removal of all obstacles, in other words, on objectives which distinguish the Union Treaties from the Agreement. The structure of the Agreement and the context surrounding the provision, as set out above, do not support the view that the standstill clause was intended, in the absence of any express provision, to regulate an area of such sensitivity as the free movement of persons so extensively as would be the case were the standstill clause extended to include the passive freedom to provide services.
70. Thus, having regard to the aims of the agreements, the Court’s case-law on the passive freedom to provide services in the framework of Article 56 TFEU cannot be extended to Article 41(1) of the Additional Protocol.
71. The practice of the Contracting Parties (55) also supports this conclusion. According to the Council’s submissions, numerous Member States introduced a visa requirement for tourist visits by Turkish nationals after the entry into force of the Additional Protocol, and did not consider this to be precluded by Article 41(1) of the Additional Protocol. Turkey itself – according to the uncontested submission of the Federal Republic of Germany –has also acted this way in relation to Belgium and the Netherlands.
72. Consequently, the answer to the first question must be that the concept of freedom to provide services in Article 41(1) of the Additional Protocol does not include the passive freedom to provide services.
B – Second question
73. If the Court follows my suggestion in relation to the first question, it is unnecessary to answer this question. However, I set out my observations on the second question in case the Court comes to a different conclusion.
74. By its second question, the referring court seeks to establish whether a Turkish national who wishes to visit a relative and during that visit has the opportunity to receive services may rely on the notion of the passive freedom to provide services in the context of Article 41(1) of the Additional Protocol. The German administrative court answered this question directly in the negative, without giving any consideration to the first question, and rejected the applicant’s action. The applicant takes the view that this question should be answered in the affirmative. To the extent that they consider this question, all other participants in the proceedings propose that such a person should not be allowed to rely on the notion of passive freedom to provide services. In their view, the stated purpose of the trip – according to the Commission, the main purpose of the trip – must be to receive a specific service, already fixed on entry to the country. On the contrary, the mere possibility to receive services does not suffice. In addition, some participants argue that the service must have a certain economic weight or contend that the passive freedom to provide services may only apply to the extent that the provisions on free movement of goods, capital and persons are not relevant.
75. The notion of passive freedom to provide services protects recipients of services who travel to the country of the service provider. (56) The notion of what constitutes a service is identical whether borders are crossed by service providers or service recipients (57) and is determined in accordance with Article 57 TFEU. (58) Under that provision, services shall be considered ‘services’ where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons. Reflecting the wide notion of services, case-law has applied the concept of passive freedom to provide services to sectors as diverse as tourism, (59) medical services, (60) private education (61) and leasing. (62) Within the scope of the freedom to provide services no distinction has been made between significant and insignificant services provided that the services constitute effective activities not such as to be regarded as purely marginal and ancillary. (63)
76. If one applies this notion of services to the facts underlying the second question, it must be observed that Ms Demirkan does not rely on a particular service but states simply that receipt of services is possible also in the context of a visit to relatives.
77. Admittedly, services received, as long as they are not such as to be regarded as purely marginal and ancillary, fall within the scope of the passive freedom to provide services. (64) This applies regardless of whether or not they are received in the context of a family visit. However, where there are no services at issue or the services are purely of marginal significance free movement for service recipients does not come into play.
78. It follows necessarily, therefore, that the criterion for distinguishing between border crossings which are included within the notion of passive freedom to provide services and those which are not becomes the purpose of the visit. If this is characterised at least in part by the receipt of services, the protection accorded by the notion of passive freedom to provide services will apply. (65) In those circumstances, it is irrelevant that the trip also includes a visit to family. If, however, the service is so marginal that the family visit alone appears to be the relevant purpose, the protection accorded by the notion of passive freedom to provide services will not apply. Where necessary, this will be for the national courts to determine.
79. It follows from the criterion of the purpose of the visit that the mere assertion of a possibility to receive unspecified services does not suffice to take advantage of the protection afforded by the passive freedom to provide services.
V – Conclusion
80. On the basis of the foregoing I propose that the Court give the following answer to the questions referred by the Oberverwaltungsgericht Berlin-Brandenburg:
The concept of freedom to provide services within the meaning of Article 41(1) of the Additional Protocol to the Agreement establishing an Association between the European Economic Community and Turkey of 23 November 1970 does not include the passive freedom to provide services.
81. In the alternative, if the Court takes the view that the concept of freedom to provide services within the meaning of Article 41(1) of the Additional Protocol includes the passive freedom to provide services:
The protection afforded by the passive freedom to provide services under the law of the Association Agreement, specifically pursuant to Article 41(1) of the Additional Protocol, does not extend to Turkish nationals who wish to enter a Member State for the purposes of visiting relatives for a stay of up to three months and who rely on the mere possibility of receiving services in that State.
1 – Original language: German.
2– Case C-228/06 Soysal and Savatli [2009] ECR I-1031.
3– Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraphs 10 and 16. This was followed, inter alia, by Case 186/87 Cowan [1989] ECR 195, paragraph 15; Case C-274/96 Bickel and Franz [1998] ECR I-7637, paragraph 15; Case C-348/96 Calfa [1999] ECR I-11, paragraph 16; Case C-294/97 Eurowings Luftverkehr [1999] ECR I-7447, paragraph 34; Case C-243/01 Gambelli and Others [2003] ECR I-13031, paragraph 55; Case C-169/08 Presidente del Consiglio dei Ministri [2009] ECR I-10821, paragraph 25; Case C-56/09 Zanotti [2010] ECR I-4517, paragraph 26; and Case C-490/09 Commission v Luxembourg [2011] ECR I-247, paragraph 35.
4 – Listing the Agreement under the heading ‘Law of the European Union’ reflects standard practice. Although, in fact, association agreements constitute international treaties, pursuant to settled case-law, they are considered an integral part of Community law. See Case 181/73 Haegeman [1974] ECR 449 (in relation to the Association Agreement with Greece) and Case 12/86 Demirel [1987] ECR 3719, paragraph 7 (in relation to the Association Agreement with Turkey).
5– Journal Officiel 1964, 217, p. 3685.
6– Journal Officiel 1972 L 293, p. 1.
7– Decision No 2/2000 of the EC-Turkey Association Council of 11 April 2000 on the opening of negotiations aimed at the liberalisation of services and the mutual opening of procurement markets between the Community and Turkey, OJ 2000 L 138, p. 27.
8– Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ 2006 L 105, p. 1.
9 – Footnotes omitted.
10– Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, OJ 2001 L 81, p. 1. The Regulation has been amended several times.
11– BGBl. I, p. 1341.
12– BGBl. I, p. 1743.
13– BGBl. I, p. 782.
14 – Case C-37/98 Savas [2000] ECR I-2927, paragraphs 46 to 54; Joined Cases C-317/01 and C-369/01 Abatay and Others [2003] ECR I-12301, paragraphs 58 and 59; Case C-16/05 Tum and Dari [2007] ECR I-7415, paragraph 46; Soysal and Savatli, cited in footnote 2, paragraph 45; Case C-186/10 Oguz [2011] ECR I-0000, paragraph 23; and Case C-256/11 Dereci and Others [2011] ECR I-0000, paragraph 87.
15 – Likewise, simply by reason of the German declaration made pursuant to Article 7 thereof, no such right can be derived from the European Agreement on Regulations Governing the Movement of Persons between Member States of the Council of Europe.
16 – Savas, cited in footnote 14, paragraph 71; Abatay and Others, cited in footnote 14, paragraphs 62 to 67; Tum and Dari, cited in footnote 14, paragraphs 47 to 55; Soysal and Savatli, cited in footnote 2, paragraphs 47 to 49; Case C-242/06 Sahin [2009] ECR I-8465, paragraph 64; Case C-92/07 Commission v Netherlands [2010] ECR I-3683, paragraph 47; and Dereci and Others, cited in footnote 14, paragraphs 89 to 94.
17 – Soysal and Savatli, cited in footnote 2, paragraphs 55, 57 and 63.
18 – Ibid., paragraph 59.
19– Nowadays this is provided for in Article 30 of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code), OJ 2009 L 243, p. 1.
20– COM(2011) 290 final/2, pp. 9 and 17.
21 – The notion of a ‘passive’ freedom to provide services has been used in German since 1972 if not earlier. See, for example, Völker, S., Passive Dienstleistungsfreiheit im Europäischen Gemeinschaftsrecht, Duncker & Humblot, Berlin, 1990, p. 54 et seq. Pursuant to Article I(2) of the GATS Agreement, WTO law establishes a four-fold typology in relation to the cross-border provision of services. This comprises the three situations mentioned here and supply ‘through commercial presence’ which, in the European context, is included within the freedom of establishment.
22 – This follows also from the GATS Agreement within the framework of which States may choose which forms of service provision they liberalise.
23 – Calliess, C. and Korte, S., Dienstleistungsrecht in der EU, C.H. Beck, Munich, 2011, pp. 55 and 56.
24– Case 352/85 Bond van Adverteerders and Others [1988] ECR 2085, paragraph 16.
25 – One can argue that this is acknowledged by the Court in Bickel and Franz where it holds that nationals of Member States as service recipients are free to visit and move around within other Member States and immediately thereafter refers, ‘[f]urthermore’, to the rights of free movement associated with Union citizenship (Case C-274/96 Bickel and Franz [1998] ECR I-7637, paragraph 15).
26 – Luisi and Carbone, cited in footnote 3. This landmark decision has been confirmed by the Court on many occasions. See footnote 3.
27 – Luisi and Carbone, cited in footnote 3, paragraph 10.
28 – 1155 UNTS 331.
29 – As regards Article 31, see, for example, Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 6, paragraph 41.
30 – Case C-416/96 Eddline El-Yassini [1999] ECR I-1209, paragraph 47, and Opinion of Advocate General Bot in Case C-371/08 Ziebell, formerlyÖrnek [2011] ECR I-0000, point 43.
31 – In French: ‘libre prestation des services’, Italian: ‘libera prestazione dei servizi’, and Dutch: ‘het vrij verrichten van diensten’.
32– Luisi and Carbone, cited in footnote 3, paragraphs 10 and 16.
33– OJ, English Special Edition, Second Series IX, p. 3. Title III refers to the elimination of restrictions whether ‘they affect the person providing the services directly, or indirectly through the recipient of the service or through the service itself’.
34– OJ, English Special Edition 1963-1964, p. 115. This was replaced by Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, OJ 1973 L 172, p. 14.
35 – Opinion of Advocate General Trabucchi in Case 118/75 Watson and Belmann [1976] ECR 1185. Following that analysis, see also the Opinion of Advocate General Capotorti in Case 66/77 Kuyken [1977] ECR 2311.
36 – Völker, S., Passive Dienstleistungsfreiheit im Europäischen Gemeinschaftsrecht, Duncker & Humblot, Berlin, p. 64 et seq.
37 – Article 5(3) of the Agreement signed on 21 June 1999 and approved on behalf of the European Community by Decision 2002/309/EC, Euratom of the Council, and of the Commission as regards the Agreement on Scientific and Technological Cooperation, of 4 April 2002 on the conclusion of seven Agreements with the Swiss Confederation, OJ 2002 L 114, p. 1.
38 – On the programmatic nature of the provision see the landmark decision of Demirel, cited in footnote 4, concerning the – for the present purposes – comparable Article 12 of the Agreement.
39– Abatay and Others, cited in footnote 14, paragraph 112, emphasis added. See also Case C-434/93 Bozkurt [1995] ECR I-1475, paragraph 20.
40 – Settled case-law of the Court: Case 270/80 Polydor and RSO Records [1982] ECR 329, paragraphs 14 to 19; Case 104/81 Kupferberg [1982] ECR 3641, paragraph 30; Case C-312/91 Metalsa [1993] ECR I-3751, paragraphs 10 to 12; Case C-162/00 Pokrzeptowicz-Meyer [2002] ECR I-1049, paragraphs 32 and 33; Case C-351/08 Grimme [2009] ECR I-10777 paragraphs 27 and 29; Case C-541/08 Fokus Invest [2010] ECR I-1025, paragraphs 28 and 29; and Case C-70/09 Hengartner and Gasser [2010] ECR I-7233, paragraphs 41 und 42.
41 – Case 17/81 Pabst & Richarz [1982] ECR 1331, paragraphs 26 and 27, and Case C-63/99 Gloszczuk [2001] ECR I-6369, paragraphs 49 to 52.
42– Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part, OJ 1993 L 348, p. 2.
43 – Gloszczuk, cited in footnote 41, paragraphs 49 to 52; as regards the Agreement with Turkey, by implication, in Case C-371/08 Ziebell,formerlyÖrnek [2011] ECR I-0000, paragraphs 58 to 74.
44 – Pabst & Richarz, cited in footnote 41, paragraphs 26 and 27. A similar approach was adopted in Case C-163/90 Legros [1992] ECR I-4625, paragraphs 23 to 27.
45 – Schmalenbach, K., ‘Article 217’, in Calliess C., and Ruffert, M., (eds) EUV/AEUV, C.H. Beck, Munich, 4th edition 2011, points 35 and 36.
46– Opinion of Advocate General Bot in Ziebell, cited in footnote 43, points 44 to 46.
47– Ziebell, cited in footnote 43, paragraphs 64 to 72.
48 – Can, H., Das Assoziationsverhältnis zwischen der Europäischen Gemeinschaft und der Türkei, Peter Lang, Frankfurt am Main, 2002, p. 54; an overview of the individual areas can be found also in Lenski, E., ‘Turkey and the EU: On the Road to Nowhere?’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (Heidelberg Journal of International Law) 63, 2003, pp. 77-102.
49 – Article 6 of the Agreement.
50– Article 41(2) of the Additional Protocol.
51– Decision No 1/95 of the EC-Turkey Association Council of 22 December 1995 on implementing the final phase of the Customs Union, OJ 1996 L 35, p. 1.
52 – Case 15/81 Gaston Schul [1982] ECR 1409, paragraph 33; Case 299/86 Drexl [1988] ECR 1213, paragraph 24; Metalsa, cited in footnote 40, paragraph 15; and Gloszczuk, cited in footnote 41, paragraph 50.
53 – Articles 20 and 21 TFEU.
54 – This is also illustrated by the atypical character of the leading cases on the passive freedom to provide services. For example, Luisi and Carbone concerned fines imposed for the purchase of foreign currency. In his capacity as a tourist, Mr Cowan relied on the prohibition of discrimination in Article 7 of the EEC Treaty. See Luisi and Carbone and Cowan, both cited in footnote 3.
55 – Article 31(3)(b) of the Vienna Convention on the Law of Treaties.
56 – Lenaerts, K. and Van Nuffel, P., European Union Law, Sweet & Maxwell, London, 3rd edition 2011, p. 273.
57 – Calliess, C. and Korte, S., Dienstleistungsrecht in der EU, C.H. Beck, Munich, 2011, pp. 55 and 56, refer to the ‘mirror image’ of the active freedom to provide services.
58 – Eurowings Luftverkehr, cited in footnote 3, paragraphs 33 and 34.
59– Luisi and Carbone, cited in footnote 3, paragraph 16, and Cowan, cited in footnote 3, paragraph 15.
60 – Luisi and Carbone, cited in footnote 3, paragraph 16, and Commission v Luxembourg, cited in footnote 3, paragraphs 34 and 35.
61 – Luisi and Carbone, cited in footnote 3, paragraph 16, and Zanotti, cited in footnote 3, paragraphs 26 to 35.
62 – Eurowings Luftverkehr, cited in footnote 3, paragraph 34.
63– Case 196/87 Steymann [1988] ECR 6159, paragraph 13.
64– See point 75 of this Opinion.
65 – On the use of the criterion of ‘purpose’ in the context of free movement for service recipients and its consequences for the law on residence see Völker, S., Passive Dienstleistungsfreiheit im Europäischen Gemeinschaftsrecht, Duncker & Humblot, Berlin, 1990, p. 168 et seq. On the considerable practical difficulties in implementing such a criterion – identified many years ago – see Tomuschat, C., ‘Le principe de proportionnalité: Quis iudicabit?’ Cahiers de droit européen, 1977, pp. 97-102.
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